Mhango and 1 other v Limula (MSCA Civil Appeal 14 of 2016) [2017] MWSC 19 (24 January 2017)

REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA CIVIL APPEAL NO. 14 OF 2016 BETWEEN SAKALANI MHANGO 1st APPELLANT GROUP VILLAGE HEADMAN MAUWA 2°4¢ APPELLANT -AND- IMAN LIMULA RESPONDENT Coram: HOW. JUSTICE MZIKAMANDA SC, JA Chitwa Counsel for the Appellant Chidothe Counsel for the Respondent Minikwa Recording Officer RULING This is an dpplication for stay of execution of judgment pending appeal. The application is contested. The background to the matter shows that the present matter commenced on 34 February, 2011. The appellant failed to file and serve a defence and a default judgment was entered against them on 3¢ October, 2011. It took the appellant until 13 March 2013 o obtain a stay of execution of the default judgment exparte pending an application fpr an order setting aside the judgment. The application to set aside judgment was mever filed and the respondent filed an application for an order vacating the sta order. On 16° September, 2013 it was ordered that the appellants file within 14 days the application to set aside judgment failing which the order of stay would be vacated. The appellants did not comply and on 26'" March, 2015, the High Court issued an grder vacating the order of stay of execution of judgment. On 5th June, 2015 the appellants filed an application to set aside the order of 26'n March 2015 and on 28'5 October, While the P05 they filed a notice of appeal. bppeal was pending, appellants filed the present application for stay of execution pentiing the hearing of the appeal. At the heqring of the present application Counsel Chirnwa acknowledged that the lawyers who handled the matter on behalf of the appellants before he took over had failed the dppellants in their manner of handling it. He however said that the ineptitude of Cownsel should not prejudice the appellants but rather that justice must be seen to be dqne. He stated that his prayer was that the decision of the lower Court be reversed and He adopted the that the appellants be given an opportunity to put forward their case. affidavit and the skeleton arguments filed by Counsel Supedi on behalf of the appellants. Counsel Chidothe for the respondent adopted his own affidavit and skeleton arguments. He was emphatic that since 3 October, 2011 the appellants have not taken any step t stay of execution the order of stay qd have the judgment set aside even after being granted an order of nearly two years after judgment was granted. Even after the grant of bf execution, the appellants did nothing. They did nothing even after being granted an unless order requiring them to file an application to set aside judgment within 14 days. The appeal subsequently filed to the Supreme Court of Appeal is prematpre. Counsel argued that the present application does not meet any of the four tests} set out in Anglia Book Distributors Ltd v Registered Trustees of Karibu Ministries t/a Kalu Academy Misc Civil Appeal No. 54 of 2015, namely that (i) there (ii) dama (iii) wheth (iv) the re favour Counsel obs4 to now the appe must be a serious matter to be tried ges would not be adequate remedy er justice will be achieved by maintaining or altering that status quo ative strength of the parties case must be such as would militate in of granting stay. rved that the notice of appeal was filed on 28 October 2015 but up Bllants have not taken any steps to prosecute it. Counsel felt that the appellants did not come to Court with clean hands. The prese wrangles even a Counsel Chirwa nt matter involves chieftaincy wrangles. The protracted nature of the ter a judgment was entered is not helping matters. The submissions by hat the appellants should not be made to suffer for the ineptitude of Counsel is correct. However the appellants cannot be entirely exhonerated for their not showing interest n settling the matter prosecuted to the end for nearly five years after the judgment. Another order of stay of execution would unjustifiably postpone the enjoyment of the fruits of the judgment that the respondent obtained in 2011. There are no special circumstances shown to persuade me to grant the stay of execution of the judgment. | wou d refuse to grant such stay of execution. The appellants remain at liberty to pursue the matter in the Courts, but the respondent must enjoy the fruits of the judgment as it stands now. In accordingly dismiss the application for an order of stay of execution with costs to the respondent. Made in Chambers this 15 day of September, 2016 at Blantyre. / \ kj) RR. kamanda sc JUSTICE OF APPEAL fi Malawi Judiciary IN THE HIGH COURT OF MALAWI AT BLANTYRE MSCA CRIMINAL APPEAL NO 14 OF 2013 ————— EY BETWEEN: GEOFREY DOFF BOTTOMAN PETER PETROS ciate APPLICANTS SOPHO ETE S eee e meses eee e eee nese eseeeeesenEEeeeseeeeeEeeeees . REPUBLIC. tsssssssssecessssnsessevencessnecsoususeneonsesonsavssunsesseesoessesss RESPONDENT CORAM: THE HONOURABLE JUSTICE E B TWEA SC JA COUNSEL FOR THE APPELLANT - ABSENT COUNSEL FOR THE RESPONDENT - ABSENT RECORDING OFFICER - MRS CHIMTANDE ORDER TWEA SC JA On 30th July, 2013 the applicants filed a Miscellaneous Criminal Application entitled “ “Application for Discharge” The application |was brought under section 42(2) (f) (i) of the Constitution} and the inherent Jurisdiction of the Court. The application |cited the “Republic” as the respondent. It is important to| point out that the application was not addressed to anyone in pprticular. However, it was endorsed to have been served or 9.20 am Msuta” w The gist discharge criminal d the State Advocate’s Chambers on 12th August 2013, at and to have been received by “Noel Mbuta” or “Noel hichever it may be. of the application was that the applicants should be 4 from criminal proceedings in a criminal cause. The ause or cause number were not disclosed. They prayed for a discharge on the ground that the State’s delay to prosecute them was junconstitutional. This application was supported by an affidavit. The affidavit averred thi and comm Application murdered released on proceeded 4 On 12th Se could be he of the appl proceedings Justice for c After several During the hk the applican Evidence Co as far as it offence the A polytechnic student, Robert Chasowa. at the applicants were arrested on 17th July in 2012 itted to the High Court on 24th July 2012 in Bail Number 48 of 2012, on the allegation that they They were bail in October 2012. Since then the case has not ny further. The affidavit did not have any exhibits. ptember 2013, before the ‘Application for Discharge’ ard, the applicants filed a notice that “at the hearing ication for discharge we shall apply for a stay of pending an application to the Honourable the Chief ertification of proceedings as constitutional.” adjournments the case was called before Nyirenda J. earing of the stay of proceedings it was submitted by ts that Section 302A of the Criminal Procedure and He (CPEC) was inconsistent with the Constitution in provided that an accused person, charged with an maximum punishment for which exceeds 3 years imprisonment, cannot be discharged when prosecution time limit is exceeded. The applicants thus prayed that the State cannot rely on section 302A of the CPEC which was discriminatory after they had been awaiting trial for 13 months. Further they prayed that a dis¢harged would demonstrate that the CPEC is inferior to the Consti as follows: “3 tution. The relevant parts of section 302A of CPEC read D2A - (1) Subject to subsections (2) and (3), the trial of any person accused of an offence triable by the High Court other than any other offence punishable by imprisonment of more than three (3) years shall — (a) be commenced within twelve months from the date the complaint arose; and (b) be completed within twelve months from the date the trial commenced. A person accused of an offence shall not be liable to be tried for the offence if his trial is not commenced or has not been completed within the period prescribed by subsection (1), and in such case the accused shall stand discharged of the offence at the expiry of such period.” The Court granted a stay of the proceedings for the discharge, pending |certification by the Chief Justice, in its ruling of 9th October 2015. The case| was subsequently called before the Chief Justice for certificatipbn. In his ruling, the Chief Justice declined to certify the case and|assigned it to the next senior Justice of the Supreme Court. He recused himself on ground that he had prior knowledg¢ of the matters which led to the arrest of the applicants. He had acquired such knowledge in his capacity as Chairperson of the Commission of Inquiry appointed by the President then, into the death of Robert Chasowa. When I took over the case, in my designated capacity as the next senior justice on the Supreme Court, I referred it back to the Registrar of the High Court directing that the Judge of the original Colirt should file a referral in terms of Rule 4 (b) of the Courts (High Court) (Procedure on the Interpretation or Application|of the Constitution) Rules. The Judge reconsidered the matter jn terms of my directive. In his ruling of 15th March 2016, the Judge declined to make a referral. He said, at page 10 of the order, that:- “The case under consideration is clearly neither a referral by the President under section 89 (1) (h) of the Constitution nor, for reasons already articulated herein, a referral by any other Court under Rule 8. In the Circumstances, the proceedings by the applicants have to be commenced by an originating motion in Form 2 of the schedule, per the requirements of Rule 8. Of curse, if the applicants opt not to apply for certification Form| 2 of the Schedule may be amended accordingly: see sea 5 of the General Interpretation Act.” I agree with the Judge. This matter should have been started by originating motion because it is not a referral. However, I have further reasons for coming to this conclusion. After the Judge’s order the matter was again set down before me. At the heaking I requested the parties to address me on how a constitutional issue, arising in a case before a Judge in the High Court, shpuld be brought before the Chief Justice for certification? I heard the parties. However, I must mention, at the outset,| that their submissions did not address the legal issues that rose in this case. To appreciate the legal position in this case I think it is necessary to refer to the facts, antecedent, to the application herein. The applicants were arrested on or about 17th July, 2012 on allegations that they were involved or concerned or connected to the murder| of Robert Chasowa, a final year student at the Polytechnic, ja constituent college of University of Malawi. On 26th July 2012 they applied for bail. The affidavit, in support of the application fpr bail averred that the applicants were committed to the High Court for the murder in Criminal Cause 127 of 20 12 by the Principal|Resident Magistrate in Blantyre on 24th July, 2012. However, th¢ same affidavit averred that they were held on remand at Chichiri Prison pending investigation. Further, the affidavit also averred that the applicants were arrested as a result of the of the report of the Commission of Inquiry instituted by the President then, Dr Mrs Joyce Banda, and her People’s Party Government. The Report of the Commission of Inquiry was exhibited to the supplemé¢ October allegedly that the I the Presid Report alg Robert Ch Democrati General, tl the Polyted after Robet Malawi Pol Report alsa the matter 17+ Octobe matter in ed 68, paragray “The Co Interpol impressi order to ntary affidavit of Ambokile Salimu of Counsel, of 25th POLS. It is in the Report that Robert Chasowa was murdered in September 2011. This was during the time Democratic Progressive Party was in Government under ency of the Late Professor Bingu Wa Muntharika. The 0 pointed out that the issues concerning the death of asowa were closely connected to the Presidency, the p Progressive Party and the office of the Inspector hen. The Report also found that the administration of hnic and Malawi Police Service did not act diligently ft Chasowa was arrested. Further it found that the ice Service failed to preserve evidence: page 66. The noted that the Malawi Police Service indicated that was referred to Interpol for further investigation, on r 2011. However, the Police did not follow up the irnest. The Commission therefore concluded, at page bh 2, that: mmission is of the view that reference of the case to was without genuiness and merely to cause the bn that something was being done about the matter in shed off blame.” The position of the State remains the same today. The Attorney General Averred that the investigations in this case have not been concluded because they would require vast resources. It is impgrtant to refer to the Report because it has a bearing on the status of the case against the applicants. At the tinhe the applicants filed for bail, on 26 July, 2012, they had not,|in fact, been charged with any offence. The bail application was made when the applicants were arrested as suspects. | They have not been charged up to now. They are still suspects. Let me pojnt out that the affidavits sworn for the applicants and the State are ambiguous. They have referred to the applicants being charged with the murder of Robert Chasowa, but also disclosed that the case was still under investigation. Robert Chasowa |was allegedly murdered when the Democratic Progressive] Party was in Government. The Commission of Inquiry however, was appointed when the Peoples’ Party was in Government. The Report of the Commission of Inquiry has it that Malawi Polite Service, the administration of the Polytechnic, the offices of the President and the Inspector General and the Democratic |Progressive Party and its functionaries then, were closely connected or concerned with the events that led to the death of Robert Chasowa. The two applicants are the first two of the fifteen (15) Democratic Progressive Party functionaries cited at pages 70-1 of the Report, to be suspected of being connected or concerned with the murder of Robert Chasowa. If the court pays cloge attention to the affidavit evidence, it will come to no other conclusion than that there is lack of political will, on the part of the State, to conclude the investigations or to charge the applicant$’ in this matter. affidavits, From the submissions and the I find that both counsels are aware of this. The problem in this case is not judicial nor Constitutional. Let me come back to the issue of the referral. I wish to point out here that I do not have find section 9 of the Courts Act to be problematic. It is a clear provision. Let me premise n persuaded hy view by stating, at the outset, that I am not by the arguments raised by the High Court in cases cited by the parties in their submissions: Mathew’ Bello Champyuni ion Cases 22, 411 and 662 of 2011 and Reserve Bank of Malawi v Finance Bank of Malawi Limited and others Constitutional Case 5 of 2010 (PR). | admit that the interesting legal points. However, these decisions are Republic v Mussa Chawisi, and Ammon Confirmat cases raise moot. The issues decided upon were raised by the Judge himself. In fact, in th Limited ai 1e case of Reserve Bank of Malawi v Finance Bank nd others (Supra) the other Judges expressly refrained from considering the issues raised in the case as a matter conc¢rning the interpretation of the Constitution. I must state that re repetition of the cases or their frequent citation does not give of the Judge. them the force of law, they still remain the opinion As I said Miscellan earlier the applicants appeared before the High Court in cous Criminal Cause 48 of 2012, which was a bail application. The bail application did not state under what provisions > Ty August, 2 then, stat (2) (e) of t for the al released ft of justice alleged to the Consti section 42 arrest to b detention. detention. it was brought. However, during hearing, on 6th 012, counsel for the applicants, Mr Chance Gondwe ed that the application was brought under section 42 he Constitution. This provides that a person arrested leged Commission of an offence has the right to be om detention with or without bail, unless the interest require otherwise. The right of a person accused or have committed an offence under section 42(2) (e) of tution is fundamentally different from the right under (2) (b): e charged or to be informed of the reason for further to be brought before the court 48 hours after As said earlier, the applicants were released from (They were not charged with any offence. On 30% J Discharge’ Application cited the “R did not disc from and le parties to b uly, 2013 the applicants filed an ‘Application for which was registered as Miscellaneous Criminal Number 14 of 2013. As I said earlier, this application ppublic” as respondent, not “the Attorney General.” It lose which case they were applying to be discharged .stly, but not least, it did not state who were the served. The Court assumed that the application was referring to Miscellaneous Criminal Application 48 of 2012; the bail app required cou that an appl ensure that ication. This was irregular. The court should have nsel to file regular documents. It does not matter ication has been filed. It is the duty of the court to the application is concise and regular. The court 10 should npt have made an assumption on behalf of the applicants. Further, |from the way that the application was couched it is doubtful,| whether it was an originating process. It definitely did not seem so. However, the applicants went on to treat their applicatign as an originating process and applied for a stay. This being an priginating process therefore, there was nothing for the Judge to |refer. As he summed up, the applicants should have filed proper originating process under Form 2 of the Court (High Court) (Prpcedure on the Interpretation) Rules. Secondly, |since the applicants were never charged in the High Court with the offence of murder or any offence at all, section 302A of the CPEC would not apply. The argument that section 302A is discriminatory therefore is neither here nor there. I will refrain from commenting on the classification of cases; as serious or minor offences, which is a common feature in our criminal law. There ould not therefore, have been a referral in this case. Lastly, let|me comment on the Rule 8 of Court (High Court) (Procedure| on the Interpretation or Application of the Constitution) Rules. There is no controversy on the sitting of the High Court|on Constitutional matters or the composition of the Court. It is|the law therefore, that Constitutional matters should be determirjed by a panel of at least three Judges in the High Court, and,| for that matter, the Supreme Court of Appeal. The proper procedure is that once a judge is seized of a matter it is in the interest pf justice that he or she hears the whole case until he or she renders a decision on it. The High Court has unlimited jurisdiction.| Should an issue arises during trial, the judge has 11 jurisdiction to decide whether or not it is within his or her competence. This is clear from section 103 (2) of the Constithtion. Therefore, if the judge decides that the issues raised substantially pertains to the application or interpretation of the Constitution, that it would best be decided by a panel of three judges, it is incumbent upon the judge to point out what or which ateas of the Constitution need to be considered by his or her colleagues sitting on a Constitutional matter. This is a common| feature in our Criminal Procedure and Evidence Code: sections {73 and 74 on transfer of criminal cases and Order 36 of the Rules of the Supreme Court (RSC) on referral or transfer of cases to official referee. The term “referral” in Rule 4 (b) and Rule 8 of the Court (High Court) (Procedure on the Interpretation or Application of the Constitution) Rules, should therefore be taken to have the ordinary meaning, that is, the legal points which a sitting judge in the original court is ceding authority over to a panel of three colleagues to decide on as a Constitutional matter. Such a d¢cision is onerous, bearing in mind the powers that a Judge hag over a case before him or her. He or she therefore, has to assess whether an issue is so substantial that he or she ought not] dispose of it, sitting alone, even if he or she has jurisdiction to do so. This calls for objective assessment of the matters raised. The cases of James Phiri v Dr Bakili Muluzi and The Attorney General Constitutional Cause 1 of 2008 and Madziko Charles Sauti Phiri v Privatization Commission and Attorney General Constitutional Cause 13 of 2005 clearly poimted out that it is not the certificate by the Chief Justice that makes a matter a Constitutional matter. It is the issues | to objectiy case does would Chief J discreti In the 2012, 1 and Con have al confusion. the cour matter is bail applic the High Court Ble such caus Blantyre brought investigati responde to be a ma The applicé person or | applicants assumptior issue. The ye and not subjective. been mixed up. or High Court Principal Registry. ons. 12 be decided that make it so. The test therefore is If the sitting judge referring the not set out the issues which he or she has deemed best be decided by a panel of three or more judges, the ustice will have no grounds on which to exercise his pn to certify the matter as Constitutional or not. present case, miscellaneous criminal applications 48 of 4 of 2013 and 16 of 2013 High Court, Principal Registry stitutional Cause 6 of 2015 of Supreme Court of Appeal, This greatly contributed to the I must point out that this laxity is evident throughout Se of this case, notwithstanding that the crux of this a homicide case of Robert Chasowa. The affidavit in the ation averred that the applicants were committed to Court for murder by the Principal Resident Magistrate tyre, in Committal Cause number 127 of 2012. No s© was found in the records of the Magistrates Courts at The matter was to the High Court as a bail application pending The current case cited the “Republic” as , instead of the “Attorney General” when it purported \tter concerning the interpretation of the Constitution. ation for discharge was not addressed to any particular entity, and did not disclose the cause from which the The S as to who was to be served and what cause was in sought to be discharged. court made State did not object to any of this. During the hearing of this must the applicants failed to come up with any written 13 submissions. They were allowed to make oral submissions, in the interest of time, but the submissions that they made were nqt consistent. The State too did not seriously examine the legal issues in this matter. The excuse that the State made was that the matter was handled by different Chambers: the Chief State Advocate Chambers in Blantyre and the Attorney General Chambers in Lilongwe. Even today when the case was called for the Ruling, both parties did not appear, despite being served. When the Supreme Court Registry was directed to follow up, both parties pleaded that they were busy. I doubt the seriousness of the parties to prosecute the case. The care and conduct in this case fell far below what would be expected in any case, let alone a case con¢erning the interpretation of the Constitution. To clear the confusion in this case I direct that the High Court and Supfeme Court of Appeal Registries should rectify their records. |I am particularly concerned that this case was at certificatidn level, it should not have been registered as a Constitutipnal matter at all or, let alone, in the Supreme Court of Appeal Registry. It is my jorder therefore, that this matter does not require certification as a matter concerning the interpretation or application] of the Constitution. I would however, suggest to the applicants |that, if they are so minded, they may file an originating motion in respect of any constitutional issue that they feel their pdsition may justify. 14 If this case had been treated with the seriousness it deserves, it would njot have come this far. I charge counsels, should they wish to bring a test case on Constitutional issues, to be serious than wht happened in this case. I order that the applicants pay costs for|this application. Pronounced in chambers this 24th day of January 2017 at Blantyre. JUSTICE OF APPEAL