Mpinganjira v Director of Anti- Corruption Bureau (Criminal Review Case 3 of 2020) [2020] MWHCCrim 19 (7 April 2020)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION Criminal Review Case No. 3 of 2020 eCMS 77 of 2020 [being Miscellaneous Criminal Cause no. 1 of 2020, PRM, Zomba Magistrates’ Court} DR. THOMSON FRANK MPINGANJIRA APPLICANT versus DIRECTOR OF THE ANTI-CORRUPTION BUREAU RESPONDENT a ee RENE _(Kamanga, J., 7" April 2020) On 28" January 2020 this court reviewed this criminal matter and made a finding that the proceedings that were before the Principal Resident Magistrate sitting at Zomba Magistrates’ Court were irregular and set them aside after declaring them null and void ab initio. The court also issued several orders and directions which in regard to the lawyer, Mr. Lusungu Gondwe, who was representing the Applicant Dr. Thomson Frank Mpinganjira included first, admonishing him under section 89(1)(c) of the Legal Education and Legal Practitioners Act for his improper and unethical conduct in handling the matter; secondly, ordering the Registrar of the High Court of Malawi and Supreme Court of Appeal in pursuant to section 90(3)(a) of the Legal Education and Legal Practitioners Act to refer counsel Mr. Lusungu Gondwe and the present criminal matter to the Disciplinary Committee of the Malawi Law Society so that the Society can inquire into the conduct of the said legal practitioner and the legal firm and thirdly, suspending him from representing the Applicant in the criminal investigations and any possible prosecution that may arise from the bribery allegations which had been made against the Applicant. The reasons for the orders and directions that were issued on 28" January 2020 are explained in the Order on Review dated 28" February 2020. On 23" March 2020 Messrs Gobz & Rechtswissenschaft filed a notice showing that counsel Lusungu Gondwe as an affected party in matter herein had 1 appointed the legal firm to act for him in the civil issues arising from this criminal matter. Mr. Chipeta, the legal practitioner for Mr. Lusungu Gondwe, correctly points out that although the matter herein involves criminal proceedings the issues affecting his client are civil in nature. On the same date of filing the notice appointment of legal practitioners, Messrs Gobz & Rechtswissenschaft filed an ex parte motion for an order to be added as a party, an order for leave to appeal and extension of time within which to appeal. Upon receipt of the motion and the skeleton arguments the court noting that the affected party was praying for several reliefs, some which could only be considered after hearing the parties this court ordered that the motion should come by way of an inter partes hearing on 1“ April 2020 and that the parties should be served by 25" March 2020. In turn the legal practitioners on 25" March 2020 filed a notice of motion for an order to be added as a party, an order for leave to appeal, extension of time within which to appeal and stay pending appeal. The motion is indicated as being taken under the following legal authorities: Order 6 r.7 of the Courts (High Court)(Civil Procedure) Rules; section 21, proviso (a) of the Supreme Court of Appeal Act as read together with Order ITI, r.3(1) of the Supreme Court of Appeal Rules; section 23(2) of the Supreme Court of Appeal Act as read together with Order I, r.18 of the Supreme Court of Appeal Rules and Order28, r.48 of the Courts (High Court)(Civil Procedure) Rules. In the notion of motion the affected party seeks an order that: 1. The affected party be added as such party to the proceedings herein on the ground that he has directly been affected by the Court’s Order and Directions dated 28" January 2020; 2. The affected party be granted leave to appeal to the Supreme of Appeal against the said Order and Directions dated 28" January 2020; 3. The time within which to give notice of such appeal be extended; and 4. Enforcement of part of the Order and Directions finding misconduct against the affected party, admonishing the affected party and referring the affected party to the Disciplinary Committee of the Malawi Law Society be suspended pending appeal. The affected party has filed a sworn statement of Michael Goba Chipeta in support of the motion in which he states that the Order and Directions dated 28" January 2020 in the criminal matter directly affects the Counsel Lusungu Gondwe, who is dissatisfied with the said Order and Directions wishes to appeal to the Supreme Court of Appeal on the following grounds: 1. ‘The Court erred in law by ordering that the Affected party (Appellant) be referred to the Disciplinary Committee of the Malawi Law Society, under section 90(3) of the Legal Education and Legal Practitioners Act, when the said Court had already found the Appellant in the wrong and executed disciplinary action by admonishing the Appellant for same conduct under section 89(1) (c) of the Legal Education and Legal Practitioners Act, thereby subjecting the Appellant to risk of extreme prejudice through double disciplinary action for the same conduct; and 2. The Court erred in law by finding that the Appellant, in the manner he prepared and handled the criminal proceedings at issue, acted improperly and misconducted himself by ill-advising his client and misleading the Court. The said finding, given that the Appellant is an Advocate and not a Judicial Officer (Judge), disregarded legal ethics governing duties of an advocate.’ Mr. Chipeta is of the view that if the enforcement of part of the order and directions affecting Mr. Lusungu Gondwe are not suspended the appeal sought shall be rendered nugatory and academic. That the Affected party’s constitutional right to access to justice, more particularly his right to access to Court and effective remedy, under section 41(2) and (3) of the Constitution, will have been denied in the event that the suspension sought herein is not granted and his appeal succeeds. From paragraphs 9 to 12 of the sworn statement the legal practitioner states that the delay in giving notice of appeal within the prescribed period of six weeks in the civil matter was inadvertent and due to circumstances beyond reasonable control on his part. He explains the delay in giving notice of appeal under paragraphs 9 and 10 and is as follows: 9. The Order and Directions having been given on 28" January 2020, the affected party gave me instructions to handle the appeal on Friday, 31* January 2020. On that day I was in the village up north in Rumphi and only returned to Blantyre on Sunday, 2"¢ February 2020. 10. I repeat the foregoing paragraph and state that my practice licence had also expired on the said 31“ day of January 2020 and I could not proceed to do the needful upon returning to Blantyre pending renewal of the same. Due to procedural requirements incidental to the process of license renewal, e.g. having my practice accounts properly prepared and audited, obtaining professional insurance cover and clearing my tax obligations with the Malawi Revenue Authority, my practice license was only renewed on 10" March 2020. The lawyers submits that since the grounds of appeal are ready, the affected party is prepared to file the notice of appeal within 3 days. 3 The Affected party contends that the facts and circumstances of the present case warrants this Court to order that the affected party be added as such party to the proceedings herein on the ground that he has directly been affected by the Court’s Order and Directions under the authority of Order 6 r.7 of the Courts (High Court)(Civil Procedure) Rules. The legal practitioner for the affected party submits that the Order and Directions dated 28" January 2020 which the affected party is desirous of appealing to the Supreme Court of Appeal was made by this court on review and the appeal lies only by leave of this Court. The affected party rely on section 21, proviso (a) of the Supreme Court of Appeal Act. He further relies on Order III, r.3(1) of the Supreme Court of Appeal Rules to assert that where an appeal lies only by leave of the Court or of the Court below any application to the Court for such leave shall be made ex parte by notice of motion. The legal practitioner for the affected Party further submits that the affidavit in support of the motion sets forth good and substantial reasons for the failure to appeal within the prescribed period as Counsel’s practice licence was only renewed on 10" March 2020. A circumstance which hindered the timely filing of the appeal. He argues that the sworn statement also show that grounds of appeal which prima facie show a good cause why the appeal should be heard, are ready. The legal practitioner humbly submits that the facts and circumstances of the present case do warrant that the time within which to give notice of appeal be extended. The affected party relies on section 23(2) of the Supreme Court of Appeal Act which empowers the court to extend the time for giving notice of intention to appeal notwithstanding that the time for giving such notice has expired. Reliance is also placed on Order IU, r.4 of the Supreme Court of Appeal Rules which outlines the procedural requirements for such an application. Reference has also been made to Order I, r.18 of the Supreme Court of Appeal Rules which provides that the application shall be made in the first instance to the Court below but if such court refuses the application the Applicant shall be entitled to have the application determined by the Court of Appeal. The affected party relies on Order 28, r.48 of the Courts (High Court)(Civil Procedure) Rules and the cases of Dr. Chilima and Dr. Chakwera v Prof Mutharika and MEC, Constitutional Case no. | of 2019 and Mike Appeal and Gatto v Chilima [2014] MLR 231 to argue that an enforcement respondent may apply to the Court for an order suspending the enforcement of an order. The affected party submits that the facts and circumstances of the present case do warrant that the enforcement of part of the Order and Directions finding misconduct against the affected party, admonishing the affected party and referring the affected party to the Disciplinary Committee of the Malawi Law Society be suspended pending appeal. The Applicant neither appeared nor filed any response to the notice of motion. On the other hand the Respondent opposes the motion and filed an affidavit in opposition and skeleton arguments. The sworn statement of Mr. Victor Chiwala, the Chief Legal and Prosecution Officer of the Anti-Corruption Bureau depones that in regard to the application for stay of execution, the Order and Direction made by the Court on 28" January 2020 cannot result in double disciplinary action since there were other issues or shortfalls which needed further inquiry and evidence by a competent body before action could be taken against the affected party as provided for under section 90(3)(a) of the Legal Education and Legal Practitioners Act. That such issues to be inquired are several and different to the ones to which the affected party was admonished. The respondent also contends that the orders and directions that the Court made are within the confines of the law and therefore does not see any merit in the case and that the affected party has not demonstrated the prejudice he shall suffer if the stay is not granted and whether such prejudice can be cured on appeal. In regard to the application for extension of time the Respondent argues that the grounds presented in support of the application for leave to file the appeal to the Supreme Court outside the period lacks merit as the sworn statement does not have evidence to substantiate the contents of paragraph 10. The Respondent examines the provisions under the Legal Education and Legal Practitioners Act and submits that the affected party had not substantiated his failure to file the Notice of Appeal within the prescribed time and that the grounds of appeal which the affected party has provided in support of the application does not show a prima facie good cause why the appeal should be heard. The Respondent is also of the considered view that the ‘Affected Party, being a lawyer who is conversant with the prescribed period of filing a Notice of Appeal, without restriction to personally file the notice, and being aware that he gave instructions to a lawyer who could not file the notice within the prescribed period, ought to have filed the notice himself within the prescribed period.’ In objecting to the application for stay pending appeal the Respondent rely on the cases of ESCOM v Kondowe t/a Saveman Investment, MSCA Civil Appeal no. 67 of 2017 and Mike Appeal and Gatto v Chilima [2014] MLR 231 which clarify that the test on whether or not to grant a stay is not whether the appeal would be rendered nugatory but the Court has to weigh the risk inherent in granting a stay and the risks inherent in refusing the stay. The Respondent submits 5 that the risk inherent in refusing the stay outweighs the risk inherent in granting the stay and therefore the court should exercise its discretion in favour of the Respondent to dismiss the Application made by the affected party in its entirety. On the failure to show the prejudice he will suffer, the Respondent rely on the case of ACB v Atupele Properties Ltd MSCA Appeal Case no. 27 of 2005. The Respondent also rely on the case of Globe Wholesalers v Lusitania Limited 11 MLR 333 to correctly submit that no stay is possible on the order to admonish the affected party as execution is already complete. In regard to the argument by the affected party that he believes that since he was already admonished by the Court, there would be double disciplinary action against him, the respondent contends that the Court has powers under section 90(3)(a) of the Legal Education and Legal Practitioners Act to refer matters to the Disciplinary Committee of the Malawi Law Society. That the Court referred to the Disciplinary Committee matters which it did not consider admonishing the affected party, the issue of double jeopardy cannot arise. From the notice of motion and the arguments advanced the affected party would like this court to make a determination and provide relief on the four issues that are contained in the notice of motion. Namely, an order to be added as a party, an order for leave to appeal, extension of time within which to appeal and an order of stay pending appeal. The law indeed provides that an aggrieved person should first have seek leave to appeal in terms of section 21 of the Supreme Court of Appeal Act if the ruling was given by the High Court in exercise of its appellate or review jurisdiction: Chagwamnjira and Company v Malawi Congress Party [2008] MLR 44 (SCA). The order and directions at issue herein and which the affected party is aggrieved of arises from a criminal review process. Both the Respondent and the lawyer for the affected party are in agreement that the law also provides that the aggrieved party has to provide good and substantial reasons for the failure to appeal within the prescribed period as well as show a prima facie good cause why the appeal should be heard. Order II] rule 4 of the Supreme Court of Appeal Rules and the case of NBS Bank Limited v R. J. Hamdani [2010] MLR 257 (SCA) are authority that for an application for extension of time to be successful, the affidavit in support of the application for enlargement of time must satisfy both the factors of (a) good and substantial reasons for failure to appeal within time; and (b) grounds of appeal which prima facie show a good cause why the appeal should be heard. The case of NBS Bank Limited v R. J. Hamdani [2010] MLR 257 holds that where the application or the applicant stumbles on only one of these factors, the application fails in its entirety. A party desiring to appeal from a decision of the High Court to the Supreme Court of Appeal shall give notice to the Registrar of the High Court of his intention to appeal. The law allows that the appeal be filed within a period of six weeks. In the present case the period of delay is more than one week after the order and directions were read out in open court on 28" January 2020 in the presence of the parties and the affected party. The case of Star FM v Celtel Malawi Limited [2012] MLR 380 (HC) emphasises the need for the intended appellant to provide good and substantial reasons for its failure to appeal within the prescribed time period. I have seriously considered the circumstances of the case and the arguments being advanced by the legal practitioner for the affected party. This court is inclined to agree with the arguments of the Respondent that there is no evidence to substantiate the allegations made by the legal practitioner for the affected party in explaining the delay in filing the notice of appeal. The challenges in regard to the renewal of licence of the lawyer are issues which should have been presented to the affected party so that he could make an informed decision in regard to his course of action on the civil issues affecting him in the criminal matter herein. Several options were open to the affected party in regard to the handling of his intended civil action, which as has been pointed out by the legal practitioner for the Respondent included the option to file a notice himself within the prescribed time limit and this court adds the other option of instructing another lawyer who had duly renewed his licence to handle the matter on his behalf. The affidavit does not show why the affected party failed to exercise those options. Considering the nature and seriousness of the order and directions that were given, this court is of the considered view that the affected party has failed to provide good and substantial reasons for his failure to appeal within the prescribed period of six weeks following the date of the Order and Directions sought to be appealed against. This delay is not excusable and cannot be condoned, especially in a case where the affected party is a legal practitioner. In regard to the grounds of appeal, this court is of the view that apart from the issues that have been noted by the Respondent the affected party and his legal practitioner should also be aware that the issues and the arguments that he wants to raise in the intended appeal can also be raised before the Disciplinary Committee of the Malawi Law Society (MLS). For example, if the MLS should find the affected party to be in the wrong, as he seems to so fear, he can plead the so called ‘double disciplinary action’ in mitigation of whatever punishment, if any, the MLS may desire to visit upon him. As has been submitted by the Respondent, the Disciplinary Committee can after inquiry and in the event that the affected party is found to have breached the law, take into consideration the fact that the affected party was admonished before imposing any penalty if the committee finds no issues against the affected party other than those he was 7 already admonished on. Further, the affected party has not cited any law whcin states that the disciplinary avenues under the Legal Education and Legal Practitioners Act should be applied one at a time or to the exclusion of the other to justify the affected party raising the argument that he will be subjected to what he terms ‘double disciplinary action’. In any event, it is a legal principle of punishment that where findings have been made on several different charges it is appropriate that a proportionate punishment be imposed for each finding of wrong doing. It will also be wise for the affected party and his lawyer to read through the record of the case, especially the court reporters transcript of the review hearing and the reasoned Order on Review in order for him to appreciate the issues that were noted and observed by the court because the affected party seems to be proceeding under the assumption that the court only identified one issue which he was already admonished on. Among other irregularities that the Disciplinary Committee need to inquire into are: whether or not filing fees were paid; whether or not the affected party appeared before the Principal Resident Magistrate sitting at Zomba as he alleged to have done and whether or not the affected party was instructed to represented the Applicant since he never filed a notice of appointment of legal practitioners in this criminal matter. All these are examples of the different charges which the Disciplinary Committee must inquire into and make findings on. Of course, as an independent statutory body the Disciplinary Committee of the MLS is at liberty to draw up its own charges against the legal practitioner and it is expected that MLS will follow the due process. The disciplinary hearing will also be an opportunity for the affected party as a legal practitioner who handled the criminal matter herein to exonerate himself as he will be afforded the opportunity to produced evidence in support of his assertions, which did not happen during the review hearing. On this basis this court is considered view that the grounds of appeal do not prima facie show a good cause. Having made the above findings it would be a legal error to grant the affected party a stay of execution when there is a refusal to grant leave to appeal out of time: NBS Bank Limited v R. J. Hamdani [2010] MLR 257 (SCA). What this court finds even more serious and worth considering is the submission by the Respondent that granting of a stay on the order to admonish the affected party and the directive to refer the matter to the Disciplinary Committee would not be in the interests of justice and an inherent risk, as the conduct by the affected party in the case was to defeat the course of justice and an action had to be taken on him other than paying a blind eye to conduct that puts the legal system and the Judiciary in Malawi into disrepute. It is not necessary to consider the matter any further in relation to adding counsel Mr. Lusungu Gondwe as an affected party because the application to enlarge the time within which to appeal and the leave to appeal have fallen away. The notice of motion is dismissed in its entirety. As provided under the rules the affected party can table the same motion before the Supreme Court of Appeal. Dated this 7" day of April 2020 at a Blantyre. Lh. Dorothy nyaKaunda Kamanga JUDGE Case information Mr. M. Chipeta Counsel for the Affected Party. Mr. Chiwala : Chief Legal & Prosecution Officer, ACB. Mrs. Mombela Principal Personal Secretary. Ms. Ngoma Court Clerk.