State v Director of Anti- Corruption Bureau Exparte Globe Electronics Limited and Another (Judicial Review Cause 3 of 2017) [2017] MWHC 911 (24 April 2017)

State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another (ee a ENR bs Ch JUDICIARY Kenyatta Nyirenda, J. ip sie # Thea Be le rey ei ie wos . Went be 7 ene Nodal i ted aey eg ie : WOOL iraq ¢ f Ce rH i é Bed ip bs f Yas SE Ay é Pain \ aX FF y ; Pte Ome, 9 ‘ Mate ey f MRD i tonnaeh IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY JUDIAL REVIEW CAUSE NO 3 OF 2017 BETWEEN: THE STATE -AND- DIRECTOR OF ANTI-CORRUPTION BUREAU EX PARTE: cewcccenecncessnescenrenr ee” GLOBE ELECTRONICS LIMITED MOHAMED ABDUL GAFFAR KASSAM ..- eee eeeeees Messrs Nampota and Gondwe, of Counsel, for the Applicants Mr. Khunga, of Counsel, for the Respondent Mr. O. Chitatu, Court Clerk Kenyatta Nyirenda, J. 1.0 INTRODUCTION There are before the Court two matters for an application to vacant leave for judicial judicial review application. 1.0 1.2. On 12 January 2017, the Applicants were 1 eoooee eee 8? APPLICANT ND PLAINTIFF CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA eo JUDGEMENT its determination, namely review and the substantiv: granted leave to apply fc judicial review of a prosecutial decision made by the Respondent. Tt leave was accompanied by a stay of the prosecutorial decision. State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 2.0 1.4 On 27" January 2017, the Respondent filed with the Court Summons to Vacate Leave for Judicial Review and the Stay Order [hereinafter referred to as the “Respondent’s Summons” ]. Due to several reasons, the hearing of the Respondent’s Summons failed to take place on the set hearing days of 9th and 20" February 2017 respectively. In the interest of time and prudent case management, it was agreed to hear the Respondent’s Summons and the substantive judicial review application [hereinafter referred to as the “Substantive Judicial Review Application”] on the same day, that is, 16 March 2017. RESPONDENT’S SUMMONS Zl The Respondent’s Summons is accompanied by an affidavit, sworn on 19” January 2017 by Mr. Kondwani Zulu, Senior Investigations Officer with the Respondent [hereinafter referred to as the “Respondents’ Affidavit” ]. The Applicants oppose the Respondent’s Summons and they have, to this end, filed a supplementary affidavit, sworn by the 2" Applicant on 14th February 2017 [hereinafter referred to as the “2" Applicants’ Affidavit”). The 2"? Applicants’ Affidavit came in the heels of the Applicants’ Notice to use all processes already filed on Court record, including Skeletal Arguments filed on 12 January 2017. Challenged Decision The prosecutial decision made by the Respondent which the Applicants seek to be judicially reviewed [hereinafter referred to as the “challenged decision’’] is set out in the Notice of Application for Leave to Apply for Judicial Review, otherwise known as “Form 86A”. The challenged decision reads, and J quote it in full as it sets forth very clearly the case for the Applicants: as The prosecutial decision made by the Respondents [hereinafier referred to as ‘the decision’] made on or about 12" January, 2017 to prosecute the 2" Applicant in his capacity as Managing Director of the 1° Applicant when viewed objectively there is clearly no evidence of any offence committed by the Applicants to warrant prosecution” me gv State v. Director of Anti-Corruption Bureau ex Pp. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 24 Reliefs Sought The reliefs sought by the Applicants are also contained in Form 86A and the same are reproduced below in full: “1 An order granting permanent stay of prosecution of the Applicants in the Court below and/or in any Court of Law on the facts of this matter on the grounds that: 11. The intended prosecution is clearly frivolous, vexatious and an abuse of the process of the Court; and 1.2. The intended prosecution is irrational, tainted with bad faith and is unreasonable in the Wednesbury sense. 2. A declaration that the prosecution of the Applicants in the court below or indeed any other Court is unjustified affront to the Applicants’ right to economic activity. as An Order directing the Respondent to write a letter to the Applicants’ business partners, associates, investors, counterparts and to whom it may concern clearing the Applicants from all wrong- doing and from criminal allegations in the Court below or any other Court of Law. . , * A declaration that the Decision is not necessary in an open and democratic society, 1s unreasonable, negates the essential content of the Applicants’ right to economic activity 5, A like order to certiorari quashing the Respondents’ Decision in the circumstances 6. If leave to apply is granted: 6.1. an Order staying the Decision 6.2. adirection that the hearing of the application be expedited 6.3. adirection that the time within which the Respondent must file legal process in opposition to Originating Motion for Judicial Review be abridged 7. Further or other relief. 8. An Order for costs. . And that all necessary and consequential directions be given.” State v. Director of Anti-Corruption Bureau ex Pp. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 2.5 Grounds on which Relief is Sought 2.5.1 Form 86A has a section entitled “GROUNDS ON WHICH " RELIEF IS SOUGHT” and paragraphs 1, 4 and 5 thereof are ) relevant. Paragraph 1 sets out the principal issue: “11 The issue is whether the Respondent has correctly appreciated and discharged his constitutional, statutory and administrative law duties in relation to the prosecutorial decision which has impacted and continues to impact adversely on the Applicants’ right to economic activity. 1.2 The further issue is whether the Respondent has correctly appreciated and discharged his constitutional, statutory and administrative law duties by deciding to prosecute the Applicants when there is no evidence to support the prosecution. ” 2.5.2 Paragraph 4 is entitled “Public Law Duty” and it reads as follows: “41 The Respondents owe the following constitutional, statutory and administrative law duties to the Applicant: 4.1.1 Duty to ensure, respect, promote and protect the Applicant's right to economic activity and to liberty; 41.2 The duty to respect the Constitution by not unnecessarily restricting the Applicants’ aforesaid rights 41.3 The duty not to override or obliterate or negate the essential content of the Applicants’ right to the aforesaid rights . 4.1.4 The Decision is vitiated in law and warrants the intervention of the Court in the exercise of its jurisdiction 4.2. The action of the Respondent is unreasonable in that: 4.2.1 The Decision adversely but substantially and significantly affects the Applicant’ aforesaid fundamental rights without justification; 4.1.2. No reasonable Director of the Anti-Corruption Bureau could have acted in the way the Respondent did. State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 4.1.3 The Respondent has acted contrary to the legitimate expectation of the Applicants that they could only be prosecuted if they committed an offence for which evidence exists.” mi . 2.5.3 Paragraph 5 gives the factual background on the basis of which the Applicants sought and were granted leave. The paragraph is lengthy but it is necessary that I quote it in full: “5.1 Applicants’ Business Dealings with Toyota Malawi Limited 3. fd. Delos 5.1.4 516 The Applicants [also referred interchangeably as Plaintiffs] have had business dealings with Toyota Malawi Limited [TMAL] for a long time. The Applicants received word from TMAL that they were selling motor vehicles to MDF. MDF wanted the said vehicles fitted with radios. TMAL had to fit those radios. By or around August 26, 2014 the Plaintiffs were authorised dealers for Harris Corporation, RF Communications Division. There is now produced and shown to me marked LG 1 a copy of letter to that effect. MDF gave specifications to TMAL. TMAL passed on the said radio specifications to the Plaintiffs. The Plaintiffs never dealt directly with MDF. There is now produced and shown to me marked LG2 email from MDF to TMAL forwarded to the 2" Plaintiff by TMAL complete with specifications. The Plaintiffs offered to supply the radios to TMAL as such authorised dealer. They obtained quotations from Harris. There is now produced and shown to me marked LG3 a copy of the said quotation complete with terms and conditions. Later TMAL advised the Plaintiffs that MDF had changed its mind. Instead of radios they needed batteries and base chargers. The Plaintiffs ordered these. There are now produced and shown to me marked LG4 copy of email of July 3, 2014 complete with specifications of batteries and base chargers. State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 5.2 5.3 5.4 5.3 Delivery to MDF 3.2.1 5.2.2 The Plaintiffs duly delivered the batteries to MDF on behalf of TMAL on August 25, 2014. There is now produced and shown to me marked LG5 a copy of delivery note to that effect. The Plaintiffs delivered the chargers to MDF on behalf of TMAL on February 10, 2015. There is now produced and shown to me marked MAGK 6 a copy of delivery note to that effect. Payment by TMAL not MDF d. Bels Sides Tedae Afier delivery to MDF the Plaintiffs invoiced TMAL. They did not invoice MDF. There is now produced and shown to me marked LG 7 a copy of the surtax invoice. There were even overpayments in this regard by TMAL to the Plaintiffs. The Plaintiffs have since squared their accounts with T. MAL. There are now produced and marked LG8A, LG8B and LG8&C copies of correspondence between the Plaintiffs and TMAL. Clearly, there was no single transaction between the Plaintiffs and MDF. Respondent Prosecutes the Applicant 5.4.1 5.4.2 Pursuant to s. 83 of the Criminal Procedure and Evidence Code, the Defendant filed a complaint before the Court below. There is now produced and shown to me marked LG9 a copy of said complaint. The Defendant also filed a charge sheet and caused issuance of warrant for the arrest of the gna Plaintiff, There is now produced and shown to me marked LG10 a copy of the said warrant of arrest complete with charges. High Court Cancels Warrant of Arrest dood 3.5.2 The 2" Plaintiff moved the High Court for Judicial Review of the prosecutorial decision of the Defendant. The judicial Review was settled by the mutual consent of the parties. There is now produced and shown to me marked LGII a copy of the Consent 6 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 5.6 5.5.3 5.5.4 Order settling the Judicial Review around June 20, 2016. Since then the Defendant has taken no steps to prosecute the matter in the Court below. The Plaintiffs Lawyers have written the Defendant demanding disclosure of evidence. The Defendant has yet to provide these disclosures to the Plaintiffs. There is now produced and shown to me marked LG12 a copy of letter dated September 26, 2016 to that effect. Prejudice, Loss and Damage to the Plaintiffs 5.6.1 D6:.2 5.6.03 5.6.4 The warrant of arrest for the 2™ Plaintiff generated quite some stir in society. Newspapers of daily and weekly circulation carried stories of the Plaintiffs being involved underhand, criminal dealings popularly referred to as cashgate. There are now produced and shown to me marked LG1I3 a bundle of copies of such reports. The corporate image of the 1° Plaintiff and the personal reputation of the 2” Plaintiff have been hugely eroded beyond recognition. The criminal allegations have put the Plaintiff in public odium. The corporate and social revulsion or condemnation against the Plaintiffs is unprecedented. Business associates, partners and counterparts of the Plaintiffs are now avoiding to do business with the Plaintiffs. One such business partner is Computron from the United Arab Emirates. The other one is Apple from South Africa. There is now produced and shown to me marked LG14 a copy of letter from Apple to that effect. The Respondent have informed me today, the 12" January, 2017 that they have decided to arrest and prosecute the Applicant. There is now produced and shown to me a whatsapp message exhibited herein and marked “LG15”. 2.5.4 Form 86A is accompanied by an Affidavit Verifying the Facts Relied on to support Application for Leave to Apply for Judicial Review [Hereinafter referred to as the “Affidavit Verifying Facts”]. The Affidavit Verifying Facts is sworn by Mr. Lusungu 7 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 2.6 Gondwe and he deposes, among other matters, that all facts deposed are personally known or had been passed on to him by the Applicants and that he had read the Statement of Grounds upon which relief is sought and he could confirm that the facts therein are true to the best of his knowledge and belief. Grounds For Seeking To Discharge Leave 201 2.6.2 20.5 In seeking to have the leave discharged, the Respondent has advanced eight grounds and these are set out in the Respondent’s Summons. Essentially, the decision of the Court on the Respondent’s Summons turns on the consideration of the said grounds and the Applicants’ response thereto. It is, therefore, necessary to reproduce the grounds as set out in the Respondent’s Summons. These are that (a) the decision granting leave to apply for judicial review and stay order was made per incuriam [hereinafter referred to as “Issue 1”], (b) the Applicants were enstopped against taking out judicial review proceedings [hereinafter referred to as “Issue 2”], (c) there was no error of law in the Respondent’s decision to inquire from the Applicants on the suspected fraudulent activities connected to alleged offence the Anti-Corruption Bureau was investigating [hereinafter referred to as “Issue 3”], (d) the Respondent was acting within his jurisdiction and therefore there was no justification for the application for judicial review as there was no triable issue [hereinafter referred to as “Issue 4”, (e) the Applicants have not shown that the Respondent acted ultra vires with regard to its decision to summon and inquire from the Applicants what they know about alleged offences that the Anti-Corruption Bureau was investigating [hereinafter referred to as “Issue 5”’], (f) the Applicants have not given reasons for asserting that the Respondent was unreasonable in their decision to investigate and prosecute the Applicants [hereinafter referred to as “Issue 6”], (g) the Applicants suppressed material facts during their ex parte application for leave for judicial review [hereinafter referred to as “Issue 7], and (h) the Applicants obtained leave for judicial State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Ze aad ~<.] review through fraud or misrepresentations of fact [hereinafter referred to as “Issue 8”. Respondents’ Affidavit As already mentioned, the Respondent’s Summons is supported by the Respondent’s Affidavit. For reasons which appear presently, it is necessary to reproduce the affidavit in extensio: a That I am in charge of investigations in the case of the Republic v General Henry Odillo, Lieutenant General Clement Kafuwa, Richard Tedwillie Makondi, Paul Montfort Mphwiyo, Mohamed Abdul Gaffar Kassam and Globe Electronics Limited. That the charges in the case arose out of a contract signed on 23 June 2013 between the Malawi Defence Force and Toyota Malawi for the supply of 35 vehicles at a contract price of K894, 635,200. That upon completion of preliminary investigations the case docket was handed over to prosecutions with the Anti-Corruption Bureau who reviewed the evidence and submitted their Prosecutor's Memorandum and a Prosecutor's Brief which recommended the prosecution of the accused herein. | That the Prosecutor’s Brief laid out matters outstanding in the case; one of which was for investigators to record statements under caution from the accused persons. That I made a formal complaint to the Magistrate at Blantyre under s. 83 of the Criminal Procedure and Evidence Code against Mohamed Abdul Gaffar Kassam and Richard Tedwillie Makondi which complaint has been attached to the Affidavit of Lusungu Gondwe, marked as exhibit “LG9” That the Magistrate issued to the Anti-Corruption Bureau warrants of arrest against Mohamed Abdul Gaffar Kassam and Richard Tedwillie Makondi in criminal case number 351 of 2016 That Mohamed Abdul Gaffar Kassam and Richard Tedwillie Makondi filed for Judicial Review against the Director of the Anti- Corruption Bureau challenging the issuance of the warrants of arrest in Judicial Review Case Number 45 of 2016 That by consent the Court order the withdrawal and /or discontinuance of the Judicial Review, the permanent stay of the warrants of arrest; and gave directions that the respondent would use summons under Ss. 84 of the Criminal Procedure and Evidence 9 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Code should it wish to proceed with the case and that the applicants should cooperate with the respondent “y £& ‘© That since the day of that order, 20 June 2016, the Anti-Corruption Bureau has taken no further step against the accused persons. 10. That, however, the applicants filed Civil Case Number 401 of 2016 by Expedited Originating Summons in October 2016 which was dismissed by this Court. 11. That to my knowledge and belief, the Criminal Case Number 351 of 2016 in the Magistrate Court; and the order in Judicial Review Case Number 45 of 2016 are live and current WHEREFORE, | pray the Honourable Court to dismiss this Judicial Review Case Number 87 of 2016 and Judicial Review Case 3 of 2017 as a duplication and triplication, respectively, of Judicial Review Case Number 45 of 2016 and an abuse of process. ”. 2.8 Applicants’ Supplementary Affidavit The Applicants’ Supplementary Affidavit essentially addresses matters raised in the Respondent’s Affidavit. For purposes of parity of treatment and transparency, I will also set out in full the substantive part of the Applicants’ Supplementary Affidavit. It reads: 2. Chronology of Legal Proceedings 21 Judicial Review Cause No. 45 of 2016: The State vs Director of the Anti-Corruption Bureau ex parte Richard Tedwille Makondi and Mohammed Addul Gaffar Kassam 2.1.1 I observe that the Applicants in this matter [the 1° JR] were Richard Tedwille Makondi and myself. 2.1.2 Globe Electronics Limited [GEL] was not a party to the 1% JR. 2.1.3 The parties to the 1" JR concluded a Consent Order 2.1.4 The Consent Order was and is binding to the parties thereto. 2.2 Civil Cause No. 401 of 2016 Globe Electronics Limited and Mohammed Addul Gaffar Kassam vs Director of the Anti- Corruption Bureau 10 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. mA 23 Dok 3.2 3.3 3.4 33 2.2.1 His Lordship the Honourable Mr Justice Nyirenda dismissed the Originating Summons on the grounds that the same was wrongly brought. 2.2.2 The action was supposed to be brought by way of Judicial Review Judicial Review Case No. 87 of 2016. The State vs Director of the Anti-Corruption Bureau ex parte Globe Electronics and Mohammed Addul Gaffar Kassam 2.3.1 The Applicants commenced this judicial review but subsequently withdrew or discontinued it Estoppel, Per Incuriam and Suppression of Material Facts I did not suppress any material facts It was not necessary to disclose all the other legal processes that I have listed above. All the legal processes above were independent of and distinct from each other; Of outmost importance, the 1°’ JR does not bar any subsequent JRs The relief sought in the 1“ JR are distinct from those that the Applicants seek in the present JR: 3.5.1 The 1*' JR sought the relief of cancellation of warrant of arrest. It did not seek to stay prosecution permanently 3.5.2 The 1* JR did not infect state that any subsequent decision to prosecute would not be questioned by JR 3.5.3 The present JR questions the ACB’s decision making process in arriving at the decision to prosecute [for which the ACB was given the discretion to decide under the Consent Order in the 1*' JR] 4. Need for Permanent Stay of Criminal Proceedings 4.1] The record will show that initially the ACB only alleged in the complaint to the court below that I committed criminal offences 11 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Zod 4.2 The said complaint did not produce any evidence to prove the alleged criminal activities 4.3 The truth of the matter is that on November 11, 2014 the ACB interviewed me. I gave a witness statement. The witness statement did not disclose any ill-dealings by me. There is now produced and shown to me marked MAGK16 a copy of the witness statement recorded on November 11, 2014 4.4 The ACB recorded further statement from me on October I, 2015. The statement too lacks evidence in support of the allegations leveled against me. There is now produced and shown to me marked MAGKI7 a copy of the witness statement dated October 11, 2015 4.5. The ACB subsequently warned and cautioned me. There is now produced and shown to me marked MAGKIS8 a copy of my caution statement. Even the said caution statement does not at all produce evidence in support of the criminal allegations against me. 4.6 The ACB interviewed me. Even the record of interviews does not yield any evidence incriminating me. There is now produced and shown to me marked MAGKI9. 4.7. The said complaint did not produce any evidence to prove the alleged criminal activities 4.3 There is to me in fact no evidence on record on which the ACB could make a decision to prosecute me.” Related Previous Cases Before turning to consider the submissions by the parties, I wish to observe that there is mention of three relevant previous cases, namely, The State v. Director of the Anti-Corruption Bureau ex parte Richard Tedwille Makondi and Mohammed Addul Gaffar Kassam, HC/PR Judicial Review Cause No. 45 of 2016, unreported [Hereinafter referred to as the “1 JR Case”], Globe Electronics Limited and Mohammed Addul Gaffar Kassam v. Director of the Anti-Corruption Bureau, HC/PR Civil Cause No. 401 of 2016, unreported [Hereinafter referred to as the “Civil Cause 401 of 2016”] and The State v. Director of the Anti-Corruption Bureau ex parte Globe Electronics and Mohammed Addul Gaffar Kassam, HC/PR 12 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Judicial Review Case No. 87 of 2016, unreported [Hereinafter referred to as the “2 JR Case” Submissions 2.10.1Issues 1 and 2 were argued together. 2.10.2 With respect to Issue 1, it is the case of the Respondent that leave was granted per incuriam ("through lack of care", that is, without the Court making reference to a statutory provision or earlier judgment which would have been relevant). Counsel Khunga submitted that the leave was made without reference to the Consent Order in the 1% JR Case which was relevant and pertinent. 2 10.3The Consent Order in the 1‘ JR Case is worded as follows: “BY MUTUAL Consent of the Parties through their Respective Legal Practitioners AND UPON BEING SATISFIED that: A, B. The Applicants fully and frankly disclosed all material facts to their knowledge at the time of institution of these proceedings ie without suppressing any material facts in their knowledge none whatsoever; and The Respondent having applied to the court for issuance of a warrant of arrest against Applicants IT IS HEREBY ORDERED and DIRECTED that:- i. The Judicial Review herein BE and IS HEREBY effectively withdrawn and/or discontinued; The warrants of arrest that were issued against the Applicants BE and are HEREB Y permanently stayed; Should the Respondent institute criminal proceedings against the Applicants, the Respondent shall institute the same by way of Summons in accordance with s. S4of the Criminal Procedure and Evidence Code; The Applicants shall cooperate with the Respondent in the discharge of its law enforcement mandate; and Each party shall bear its own costs.” —Emphasis by underlining supplied 13 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 2.10.4Issue 2 is to the effect that the Applicants were estopped against pursuing the present case by the Consent Order in the 1*' JR Case. € : Counsel Khunga argued that the said Consent Order has not been ) set aside and it is, therefore, still valid and enforceable. 2.10.5Counsel Khunga placed reliance on the case of Chikago v. Attorney General [2010] MWIRC 5. The applicant commenced the action for unfair and unlawful termination of employment, seeking damages for breach of contract and unfair labour practice. Later the parties drew a consent judgment for payment of K4,437,000.00 in full and final satisfaction of all the claimant’s claim against the respondent. The respondent sought to have the consent judgment set aside. Although the application to have the judgment set aside was dismissed on another ground, the Court said: “A consent judgment has an effect of a judgment by a court. Thus, such judgment is enforceable as is the case with any other judgment. The peculiar feature of a consent judgment is that it is entered with the agreement of the parties. The judgment endorses the parties’ agreement, giving it the force of an order of the court.” 2.10.6In concluding on these two grounds, Counsel Khunga contended that the first and second grounds operate automatically and that both of them show that there was an error of law in applying for or granting the Order. 2.10.7The Applicants’ answer to Issues | and 2 is as follows: “Olt i aclewde The simple answer is that the Applicants in the 1° JR were Richard Makondi and Mohammed Addul Gaffar Kassam. The Applicants herein are GEL and Mr Kassam. The Consent Order in the 1° JR therefore, on that score, cannot have the legal potency the Respondent ascribes to it in this matter. O.3L4,3, Further on its own words, the Consent Order in the 1” JR does not bar any subsequent JR. The order simply states that the Respondent can prosecute. But if they decide to do so, they must not arrest. They must resort to s. 84 of the Criminal Procedure and Evidence Code. 14 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 6.3.1.1.4. fy ~—_ 6.3.1.1.5. The present JR is distinct from the 1° JR. The Consent order herein goes to the same effect. The reliefs sought are different. The Applicants ultimately sought freedom from arrest in the 1*' JR. They seek permanent stay of prosecution in the present JR. The facts attending to the 1°" JR fundamentally spoke to cancellation of the warrant of arrest. The present JR seeks scrutiny of the decision making path way that makes the Respondent arrive at the decision to prosecute. These JRs are clearly different.” 2.10.8Turning to the Issue 3, Counsel Khunga submitted that leave cannot be sustained because there was no error of law in the decision to inquire from the Applicants on the suspected fraudulent activities connected to alleged offences the Respondent was investigating. 2.10.9The response by the Applicants is also short and it is to be found in paragraph 6.3.1.3 of the Applicant’s Skeletal Arguments: "“Oudads Bud 6.3.1.3.3. The short answer is that the Respondent is humming its musings. The Applicants do not allege error of law. This legal issue is clearly otiose. However, the Applicants are able to prove error of law. Refer to arguments on illegality below. The Applicants will at the hearing submit that the Respondent violated ss. 15 and 18 of the Corrupt Practices Act and s. 6 of the CPEC.” 2.10.10With regard to Issue 4, Counsel Khunga submitted that the Respondent was acting within his jurisdiction and, therefore, there is no justification for the application for judicial review. It was thus submitted that there is no triable issue with regard to the jurisdiction of the Respondent with regard to its decision-making process to summon and inquire from the Applicants what they know of the alleged offences under investigation. 2.10.110n their part, the Respondents deny pleading lack of jurisdiction in Form 86A. 2.10.12Issue 5 is premised on the doctrine of ultra vires. Counsel Khunga submitted that the Applicants have not shown that the 15 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Respondent acted ultra vires with regard to its decision to summon and inquire from the Applicants what they know about the alleged offences that the Respondent is investigating. Counsel Khunga invited the Court to note that the 24 Applicant in his affidavit in the 2" JR Case, supported by documents exhibited as MAGK | to 14, explains at length his involvement with regard to the contract signed on 23 June 2013 between the Malawi Defence Force and Toyota Malawi for the supply of 35 vehicles at a contract price of K894,635,200 that the Respondent is investigating. ~~ 7 2.10.13Here again, the Applicants deny alleging ultra vires in Form 86A. Counsel Nampota contended that Issue 5 is moot but for the intention by the Applicants to submit at the hearing of the substantive judicial review that the Respondent acted ultra vires ss. 15 and 18 of the Corrupt Practices Act (the CPA) as read with s. 6 of the Criminal Procedure and Evidence Code (CP&EC). 2.10.16Regarding Issue 6, Counsel Khunga invited the Court to note that although the Applicants assert that the Respondent was unreasonable in making the decision to inquire from the Applicants what they know about the contract signed on 23 June 2013 between the Malawi Defence Force and Toyota Malawi for the supply of 35 vehicles at a contract price of K894,635,200, the Applicants have not given the grounds or reasons why they make that assertion. 2.10.17It is the case of the Respondent on Issue 7 that the Applicants suppressed material facts during their ex parte application for leave for judicial review. Counsel Khunga put the point thus: “38 Their documents do not reveal that they have applied for Judicial Review four times in this matter; they did not disclose that there is an enforceable subsisting Consent Order, or that in a previous application the Court held their application was an abuse of process.” 2.10.18Counsel Khunga cited the cases of State v. Council of University of Malawi, Ex-Parte in Re Chihana and Musopole [2008] MWHC 88 and In the matter of s. 10(5) of the Refugees Act (Cap 11.04) of the Laws of Malawi; Jones and Others v. Refugee Committee [2005] MWHC 24 for the proposition that 16 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. non-disclosure or suppression of material facts is a ground for discharging an injunction. 2.10.19The Applicants deny suppressing material facts. In his submissions, Counsel Nampota expounded on_ relevant statements in the Supplementary Affidavit to the effect that the Applicants did not suppress any material facts and that it was not necessary to disclose all the other legal processes which were, in any event, independent of and distinct from each other. 2.10.20In the alternative, Counsel Nampota contended that the matters alleged to have been suppressed are not material to the challenged decision. Counsel Nampota relied on the case of Brink’s-Mat Ltd v. Eleombe and Others [1988] 3 ALL ER 188. 2.10.210n Issue 8, the Respondent allege that the Applicants have consistently made misrepresentations to the Court in the four judicial review cases they have taken out. Counsel Khunga argued the point thus: “An application for Judicial Review, and an application for leave to apply for Judicial Review must be supported by an Affidavit. There is no affidavit in support of this application Judicial Review Case Number 3 of 2017. Instead counsel for the applicant has filled Form 4 86A with ‘facts’ then he purports to himself swear an Affidavit to verity the ‘facts’ that he has so inserted. Counsel has himself not sworn any affidavit in support of this application so as to introduce the documents to be relied upon but in the Form 86A “Factual Background” he refers to ‘shown to me marked LG’... These have been marked from LG I to 12. This is not an affidavit. In Civil Cause 401 of 2016 Globe Electronics Limited and Mohamed Abdul Gaffar Kassam y Director of Anti-Corruption Bureau Mohamed Abdul Gafjar Kassam swore an affidavit.” 2.10.22In his response, Counsel Nampota insisted that the application for judicial review in the present case fully complied with Order 53, r.3 of the Rules of the Supreme Court (RSC). He submitted that the provision requires that the application for leave must be made ex parte to a judge by filing a notice in Form 86A and an affidavit verifying facts relied on. He further submitted that the Applicants also complied with the requirements of Order 53, rules 5 and 6 of the RSC regarding the mode of applying for Judicial review and service of statements and affidavits. Li State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Ze hd Analysis 2.11.1In considering the Respondent’s Summons, I deem it imperative to warn myself at the outset of the danger of being dragged into delving into matters meant for determination at the substantive judicial review proceedings. To my mind, the all-important task for the Court at this stage is to examine whether in light of the matters raised by the Respondent, the case of the Applicants deserves, or does not deserve, to go to the next stage of substantive judicial review proceedings. 2.11.2It is also important at this juncture to backtrack and remember the matters that must obtain for an applicant to be granted leave. It is trite that a court faced with an application for leave ought to be satisfied that (a) the person intended to be made a respondent is, or is not, amenable to judicial review, (b) the applicant has sufficient interest in the matter to which the application relates, (c) the matters/issues raised in Form 86A show a prima facie case fit for further investigations at the intended judicial review proceedings, (d) the application is made promptly, and in any event within three months of the date on which the grounds for the application first arose and (e) the applicant must have no alternative remedy or avenue that would resolve his or her complaint: see Malawi Communications Regulatory Authority v. Makande and Another, MSCA Civil Appeal No. 28 of 2013 (unreported), Ex-Parte CLC Forex Bureau and Others, supra, IRC v. National Federation of Self-Employed and Small Businesses [1982] AC 617 and O’Reilly v. Mackman [1983] 2 AC 237. 2.11.3 At the leave stage, there is no need for the court to go into the matter in depth. The essential burden of the Applicant at this stage is as was enunciated by the Supreme Court of Appeal in the case of Ombudsman v. Malawi Broadcasting Corporation [1999] MLR 329 at 333: “The law applicable to an application for leave to apply for judicial review is very clear. Once the court is satisfied, after going through the material before it, that there is an arguable case, then leave should be granted. The discretion that the court exercises at this stage is not the same as that, which the court is called on to exercise when all the evidence in the matter has been fully argued at the hearing of the application, se (IRC v Federation of Self Employed [1991] 2 ALL ER 93” 18 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 2.11.4It is commonplace that the Court has discretion under its inherent jurisdiction to discharge leave. This was put beyond question in the State v. Secretary to Treasury and Others, Ex-parte Mponda and Others [2005] MLR 454, where Mkandawire J, put the point thus: iM — “Both the Attorney General and Counsel Kaphale have formidably submitted that leave for judicial review granted herein should be set aside.. This Court has the inherent jurisdiction to set aside orders including orders granting permission to apply for judicial review, which have been made without notice being given to the defendant as was the case herein. The case authority in point is R v DPP ex parte Camelot PLC [1997] 10 Admin. L. Rep 93 — Order53. Practice note 53/1-14/34 is also very clear on this point that such an application has to be made promptly after the person had discovered the grant of leave. Thus the power of this court to set aside leave, already given for judicial review is covered in several case authorities from various jurisdictions.” — [Emphasis by underlining supplied] 2.11.5 However, the power to vacate leave to move for judicial review has to be sparingly used. This is how it ought to be: see R v. Customs and Excise Commissioners ex parte Eurotunnel PLC [1995] CLC 392 where the court said: “It is obvious that the whole purpose of the leave stage would be violated if the grant of leave were to be regularly followed by an application to set aside” 2.11.6 Leave will be vacated where (a) the application discloses absolutely no arguable case or (b) the applicant suppresses material facts: see In Re: Ministry of Finance, Ex-parte SGS Malawi Limited, Miscellaneous Civil Application Number 40 of 2003 (unreported) wherein Mwaungulu J, as he was then, said: “where given, the other party may apply to have the leave set aside because_the application discloses absolutely _no_arguable case (R y. Secretary of State for the Home Department ex parte Khalid Al-Nafeesi [1990] C. O. D. 306) or because the applicant has not frankly disclosed material facts or material aspects of the law. (R v. Jockey Club Licensing Committee ex parte Wright [1991] C. O. D. 306” — [Emphasis by underlining supplied] 19 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 2.11.7 Arguable Case 2.11.7.1Having examined the originating motion for judicial review, pg “ affidavit evidence and the submissions by Counsel, | have great } difficulties to accept the contention by the Respondent that there is no arguable case. The different arguments raised by the Applicants and the Respondent on the eight issues are self- revealing. For instance, the Applicants deny that (a) leave was granted per incuriam, (b) they are estopped from pursuing the present action by the Consent Order in the 1*' JR Case, (c) there is an error of law, (d) the Respondent is acting intra vires the CPA, etc., and they have advanced reasons in support of their position. 2 2.11.7.2 In short, there are present in this case several cogent triable issues. Having established that, the Applicants have, so to speak, crossed the threshold; and the Court has then to proceed to address the substantive judicial review matter, unless it can be shown that the Applicants, in obtaining leave, suppressed material facts. 2.11.8Suppression of Material Facts 2.11.8.1It will be recalled that the Respondent’s allegation of suppression of material facts is premised on three matters, namely, that (a) the Applicants’ “documents do not reveal that they have applied for Judicial Review four times in this matter” (b) the Applicants “did not disclose that there is an enforceable subsisting Consent Order” and (c) the Applicants did not reveal that “in a previous application the Court held their application was an abuse of process”. 2.11.8.2The matter in paragraph (c) can be easily be disposed of. It is Civil Cause 401 of 2016 which was dismissed and it was dismissed on the ground that that it was wrongly brought. To quote the Court: “T have to pause here, as a matter of prudence, to address what to my mind now constitutes the threshold question, namely, whether or not this Court can entertain this action which has been brought by way of an ordinary action begun by originating summons when it ought to have been instituted in terms of Order 53 of the RSC? 20 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. > In the present case, the parties are agreed that the essential facts are to a great extent not in dispute. I, therefore, do not understand why the Plaintiff opted to change from judicial review process under Order 53 of RSC to ordinary action process under Order 29 of the RSC. In the absence of a plausible explanation, I am very much inclined to the view that the present action is a blatant attempt by the Plaintiffs to evade the protections for the Defendants for which Order 53 provides. In the premises, the Originating Summons that the Plaintiffs took out herein is dismissed with costs.” 2.11.8.3Regarding the other two matters, there is no doubt in my mind that these matters are fully covered by the Applicants in the Supplementary Affidavit: see paragraph 2 thereof which gives a chronology of legal proceedings. 2.11.8.4 Further, I am constrained to agree with Counsel Nampota’s alternative contention that the facts which the Respondent says were suppressed are not material to the issues in Form 86A. Whether or not a fact complained of is of sufficient materiality depends on, on among other matters, the importance of the fact to the issues in the case: see Brink’s Mat Ltd v. Eleombe and Others, supra, at 1356F. In this regard, the Respondent’s ground on suppression of material facts stands or falls on whether the alleged non-disclosed material are relevant to the main issues for consideration under Form 86A, namely, whether or not the Respondent has correctly appreciated and discharged his constitutional, statutory and administrative law duties (a) “in relation to the prosecutorial decision which has impacted and continues to impact adversely on the Applicants’ right to economic activity” and (b) “by deciding to prosecute the Applicants when there is no evidence to support the prosecution.” 2.11.8.5 In this regard, the question to ask is this: what is the relevancy of the alleged non-disclosure of the facts that the Applicants have applied for judicial review four times in this matter and that there is an enforceable subsisting Consent Order? I have great difficulties in appreciating its relevancy. 2.11.8.6 All in all, 1am inclined to agree with the Applicants that they revealed all facts that were relevant and essential to the decision of the Ex-parte Summons which came before the Court. I have no difficult in concluding that leave and the ancillary orders were granted upon a 21 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Form 86A that was candid and fairly stated the facts in so far as the issues for determination in this case are concerned. 2,12 Conclusion } In the circumstances, I am very much persuaded and it is my decision that leave to commence judicial review was properly granted and that the issues which the Court is being asked to determine can only be best addressed through judicial review and not otherwise. I see no merit in the Respondent’s complaint against the said leave. The said leave is, accordingly, sustained. 3.0 SUBSTANTIVE JUDICIAL REVIEW APPLICATION 3.1 As already mentioned at paragraph 1.2 herein, the Applicants seek judicial review of the challenged decision. 3.2. The Applicant’s Evidence 3.2.1 For the Applicants, the facts are as contained in paragraph 5 of Form 86A under the section entitled “Grounds on which Relief is Sought”, as reproduced, in part, at paragraph 2.5 herein, accompanied by the Affidavit Verifying Facts (see paragraph 2.5.4 herein) and the Applicants’ Supplementary Affidavit, set out at paragraph 2.8 herein. The Applicants’ affidavit evidence refers to numerous documents and the totality of such evidence can be summarized as follows. 3.2.2 The Applicants have had business dealings with Toyota Malawi Limited [Toyota Malawi] for a long time. They received word from Toyota Malawi that they were selling motor vehicles to Malawi Defence Force [the Defence Force]. The Defence Force wanted the motor vehicles to be fitted with military radio communication system [the radio system]. 3.2.3 The Defence Force gave specifications to Toyota Malawi which passed on the said specifications to the Applicants by email correspondence. The Applicants never dealt directly with the Defence Force, 22 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.2.4 3.2.5 3.2.6 3 esd The Applicants were authorised dealers for Harris Corporation, RF Communications Division [Harris Corporation], and a company in the United States of America that deals in military equipment. The Applicants offered to supply to Toyota Malawi the radio system which was to be purchased from Harris Corporation. The Applicants obtained quotations from Harris Corporation. The Applicants, having offered to supply the radio system, received payment from Toyota Malawi. However, before the Applicants could deliver the radio system, they received word from Toyota Malawi that the Defence Force had changed its | mind. Instead of the radio system, the Defence Force needed batteries and base chargers. The Applicants ordered the batteries and base chargers from Bren-Tronics on recommendation from Harris Corporation. They duly delivered these to the Defence Force. All invoices from the Applicants were directed or addressed to Toyota Malawi. All payments to the Applicants were received from Toyota Malawi. There were even overpayments to the Applicants by Toyota Malawi. These resulted from change of mind on the part of the Defence Force from the radio system to — batteries and chargers. The Applicants had squared their accounts with Toyota Malawi way before the Respondent started investigating the Applicants for offences subject of the criminal proceedings in the Chief Resident Magistrates Court sitting at Blantyre (the lower court). The Applicants stress that there was no single transaction between them and the Defence Force. Even the delivery notes signed by the Defence Force in evidence show that the Applicants delivered the goods to the Defence Force on behalf of Toyota Malawi. Be that as it may, the Respondent decided to file a complaint in the lower court. The Respondent also filed a charge sheet. The 23 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. lower court issued a warrant of arrest for the 2"! Applicant and one Richard Makondi. The 2™ Applicant moved the High Court for judicial review of the prosecutorial decision of the Respondent (the 1‘ JR Case). It was settled by the mutual consent of the parties. rig Mya? 3.2.8 It is in evidence that the intended prosecution of this matter has enjoyed nationwide media circulation both in daily and weekly tabloids and internet. Particularly, the warrant of arrest for the 2" Applicant generated quite some stir in society. Newspapers of daily and weekly circulation carried stories of the Applicants being involved in underhand, criminal dealings popularly referred to as cashgate. The corporate image of the 1* Applicant and the personal character of the 2"'Applicant have been mired in serious disrepute. The Applicants assert that their business associates, partners and counterparts are now avoiding to do business with them. One such business partner is Computron- from the United Arab Emirates. The other one is Apple from South Africa. 3.2.9 The Applicants assert that the Respondent knows of the frivolity and vexatiousness of the charges levelled against them. On 11" November 2014, the Respondent obtained an ordinary statement from the Applicants. They recorded a further statement from the Applicants on 1* October, 2015. The Applicants explained the minutest of the details of their involvement with Toyota Malawi and lack of involvement with the Defence Force. They gave all relevant documentary evidence to the Respondent. Surprisingly, when the Respondent laid a complaint before the lower court, they did not disclose these facts to it. Had they done so, perhaps, the lower court would not have made the decisions it did in terms of issuing warrant of arrest. Subsequently, the Respondent warned and cautioned the 2™ Applicant. 24 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another 3.3. The Respondent’s Evidence 3.3.1 The evidence by the Respondent is contained in an affidavit headed “AFFIDAVIT IN SUPPORT OF RESPONDENT”, sworn by Mr. Kondwani Zulu on unspecified date but filed with the Court on 2" March 2017 [hereinafter referred to as the “2™ Respondents’ Affidavit”]. Respondent’s Affidavit contains matters that came to Mr. Zulu’s knowledge from the investigations he carried out; documents he reviewed and statements he recorded from possible witnesses ¢ a during the said investigations. 3.3.2 A perusal of the 2" Respondent’s Affidavit, including the documents and statements referred thereto reveals the following. On 23" June 2013, Toyota Malawi and the Defence Force signed a contract for the supply of 35 vehicles at a contract price of K894 635 200.00 (the Contract). Upon investigation, Mr. Zulu supervised compilation of an Interim Investigation Report (the Report). The Report was handed over to the Respondent’s Prosecution Directorate (the Directorate). The Directorate prepared a prosecution brief (the Brief). The Report and the Brief Kenyatta Nyirenda, J. are the only documents the deponent gave in evidence. 3.3.3 The Report is basically a compilation of the interviews the Respondent conducted with possible witnesses. It is important to delve into the Report to garner what sort of evidence the Respondent had in support of the criminal allegations he levels against the Applicants. On page 3 of the Report, the Contract was signed by Mrs. Rosemary Mkandawire on the part of Toyota Malawi and Lt. Gen. Clement Kafuwa for the Defence Force. The Report, at page 6, indicates that the Applicants were contacted by one Mr. Richard Makondi of Toyota Malawi to supply the radio system to the Defence Force vehicles. The Applicants submitted an invoice to Toyota Malawi. The Applicants were paid the sum of K228 914 218.48 by Toyota Malawi. On 19" June, 2013, the Commander of the Defence Force General Odillo instructed Colonel Stephen Basiyao to provide specifications for batteries for Harris HF and VHF radios and motorolla radios to Mr. Makondi. Colonel Basiyao obliged. Mr. Makondi relayed that information to the Applicants. The 25 THE The 2™4 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.3.5 3.3.6 aided Applicants supplied the batteries to the Defence Force on behalf of Toyota Malawi: see page 8 of the Report. What seems to have caused anxious moments to the Respondent was the period between the time the Applicants received upfront payment and the time the Applicants delivered the goods. The Report itself detoxifies the said anxiety. The cause of the delay is explained at page 8 of the Report: delivery of the goods delayed because the Defence Force changed from supply of radio systems to batteries and chargers. What caused further anxious moments to the Respondent was that the goods did not come from Harris Corporation. They came from a different company. This made the Respondent suspect criminality. The Report explains this away on page 9. The Applicants during investigations informed the Respondent that when Toyota Malawi had instructed the Applicants that the Defence Force had changed from radio systems to batteries and chargers, the Applicants had contacted Harris Corporation who referred the Applicants to Bre-Tronics. The Applicants exhibited documents evidencing their transactions with Bren-Tronics. In his findings, the Respondent concludes on page 11 of the Report that the Applicants and others intended to defraud Malawi Government the sum of K228, 914, 218.48. Among other reasons, there was no evidence that Harris Corporation communicated or passed on the order by the Applicants to Bren- Tronics. However, as had become apparent during hearing, the Applicants gave evidence that they had transacted with Bren- Tronics which had being referred to the said Bren-Tronics by Harris Corporation. The Brief contains certain vital information in support of the Applicants’ version of the story. In his statement to the Respondent, one Arvinder Singh Reel, Managing Director of Toyota Malawi at the time of the Respondent’s investigations, told the Respondent that Toyota Malawi had made an upfront payment to the Applicants in order to procure the radio system. He was not at Toyota Malawi at all material times of the transactions subject of litigation in this matter. When the Respondent called him for interview, he held a meeting with the Applicants. They informed him that they received verbal 26 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. communication from Mr. Makondi to supply radio communication system. They waited for confirmation for the order as this was military equipment. The Applicants informed Mr. Reel that they received an email from Mr. Makondi in June 2014 that specifications had changed. Instead, the Applicants had to supply batteries and chargers. The Applicants duly supplied these. The Defence Force acknowledged receipt of the batteries and chargers. Mr. Reel makes a statement on page 20 of the Brief that practically delineates the Applicants from the Defence Force. He says, in his own words: ae 4% “We became aware of the Globe Electronics transaction when I was at the Regional Office in South Africa before picking up my present job. TMAL [Toyota Malawi] was instructed to make sure delivery was done. Technically Globe Electronics were only a_sub- contractor and if they failed to deliver, liability still lay with Toyota Malawi.” bo bo oO Reading throughout the Report and the Brief, one gets the distinct impression that the reason the Respondent suspected fraud or criminal activity in this case is that payment to the Applicants was done before they could deliver the goods to the Defence Force. It is contended, not unusually in my view, by the Resporident, that payment was supposed to follow after delivery. Upfront payment is questioned. However, there is the answer right there in the Brief. On page 20 of the Brief, the Respondent records Mr. Reels comments on this aspect. Once again, in his own words as captured in the Brief, Mr. Reel says “Upfront payments can be made at the discretion of the local Managing Director’ of Toyota Malawi”’. 3.3.9 The Brief, on page 27, details further justification for upfront payment. According to Mr. Makondi: “The Malawi Defence Force requested that we mount communication equipment on Land Cruiser Pick up and Double Cab. As Toyota Malawi we do not supply Radio Equipment and Military Equipment as per Policy of Toyota Japan, the mother company. Before buying a vehicle, the customer signs a declaration that the vehicle will not be used for WAR but Peace Keeping. In 2013 the Managing Director of TMAL, Rosemary Mkandawire contacted Globe Electronics to source Radio Equipment and the cost was MK 27 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. ae il PO Roe 228,914,218.48 VAT included. This amount was for communication system for 40 vehicles. On 9 July 2013 TMAL paid K228,914,218.48 to Globe Electronics on cheque 2491. Although Globe Electronics did not supply the communication system but TMAL went ahead to pay them because it wanted to push the risk of Malawi Kwacha devaluation to the company. This arrangement was done to safeguard TMAL because it sub-contracted the service of supplying Radio Equipment to Globe Electronics. Globe Electronics were supposed to procure the military Radio Equipment from Harris Corporation in the United States.” 3.3.10Perhaps Mr. Makondi’s account to the Respondent best explains the delay in actual delivery of the goods, that is, he gives two reasons on page 27 of the Brief. The first reason relates to the need for registration of the Applicants. As the Applicants would source the radio systems from Harris Corporation, Harris Corporation had to make sure that Applicants are duly registered to supply the same. This took time. The United States of American Embassy got involved. The necessary registration was eventually done. In Mr. Makondi’s own words as captured by the Respondent in the Brief “this meant that there was undue delay in supply of military equipment.” 3.3.11 The second reason had to do with change of mind on the part of the Defence Forces. According to Mr. Makondi, in June 2014, the Defence Force, through Colonel Basiyao, informed him that the Defence Force already had radios. All they needed was batteries and chargers for the radios to function. Colonel Basiyao sent specifications for these. Mr. Makondi forwarded these to the Applicants. This meant that the Applicants had to change the supply of radio systems to batteries and chargers. Mr. Makondi confirms that the Applicants delivered the batteries and chargers to the Defence Force on behalf of Toyota Malawi. 3.3.12Colonel Basiyao confirms the foregoing on page 29 of the Brief, He states that he was given instructions by the Defence Force to 28 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. change the order from radio systems to charges and batteries. He confirms that the latter were duly delivered to the Defence Force. & 3.3.13On page 31 of the Brief, there is an account of Mr. Noel Zigowa. He was at all material times the Finance Manager of Toyota Malawi. He confirmed to the Respondent during investigations that Toyota Malawi indeed paid the Applicants for the radio systems. It is the then Managing Director of Toyota Malawi, Miss Rosemary Mkandawire, that authorized finance to pay the Applicants. The only document finance used to support the payment to the Applicants was the invoice from the Applicants. Finance did not necessarily need a written contract for it to pay: what it required was simply authorization to pay from the relevant authority or, in this instance, the Managing Director. 3.3.14Mr. Zigowa justifies why, from finance perspective, it was prudent to make upfront payment. The Brief records him as having said that: “We paid in advance (Globe Electronics) to transfer the risk because we did not know the delivery period and further it is common knowledge that after July every year when tobacco selling season is over the Malawi Kwacha becomes volatile. By paying in advance the risk was transferred to Globe Electronics. Based on our past dealings with Globe Group of Companies we were assured that they will deliver the products/goods to MDF besides we had proper documentation to support (cheque payment) to claim back the money when default.” 3.3.15There is more reason why Toyota Malawi was comfortable to make upfront payment to the Applicants. It is to be found on page 37 of the Brief in the account of Mr. Andrew Katimba. Much or > a good deal of what he says is speculation and hearsay. However, Mr. Katimba justifies upfront payment to the Applicants this way: “Let me state that Globe Electronics Director Mr Kassam is an agent of Islamic banking and owner of Universal Car Sales so we 29 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. have a guarantee; credit facility guarantee which states that if he is in default we can call this guarantee and they will pay us. I have attached a copy of this guarantee.” ) 3.3.16And lastly but not least important, there is on page 39 of the Brief the account of Miss Rosemary Mandawire. She says: “MDF wanted some vehicle communication equipment. Toyota Malawi does not provide such services so we sub-contracted Globe Electronics to do it as they were an electronics company and our agent. We paid Globe Electronics upfront because of Forex volatility, The other year we made a forex loss for keeping cash. This was not the first time we were dealing with Globe Electronics on military equipment. Later I was told by Globe Electronics that the Army had changed the specifications. I was assured that Globe Electronics would deliver.” 3.4 The Legal Issue 3.4.1 Itis out of the above factual setting that the Respondent decided to lay a complaint before the lower Court and on 6" February 2017 the Respondent -warned and cautioned (the Warning and Caution Statement) the 2" Applicant as follows: “You, MOHAMMAD ABDUL GAFFAR KASSAM, the Director of Globe Electronics in the City of Blantyre, you are being informed that the Anti- Corruption Bureau [ACB] is conducting criminal investigations into allegations that: (i) In February 2013 to February to February 2015 in the City of Blantyre you conspired with public officers General Henry Odillo, Lieutenant General Clement Kafuwa as then Commander and Deputy Commander of the Malawi Defence Force respectively, and Richard Makondi, the then National Sales and Marketing Manager at Toyota Malawi [Tmal] to defraud Malawi Government a total sum of MK228,914,218.48 for the benefit the said people and your own advantage contrary to s. 35 as read with s. 25B of the Corrupt Practices Act. (ii) You, Henry Odillo, Clement Kafuwa and Richard Makondi between February 2013 to February 2015 laundered a total sum of MK226, 30 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. & } 3.4.2 3.4.3 3.4.4 914, 218.28 which you knew or had reason to believe that it represented in whole or in part directly or indirectly money unlawfully obtained contrary to s. 35[l][c] of the Money Laundering, Proceeds of Crime and Terrorist Financing Act.” It will be recalled though that when the Respondent laid complaint before the lower court , as against the 2’ Applicant, the charges were as contained in exhibit LG 10 annexed to Form 86A and they included the charges is the Warning and Caution Statement. The other charges in LG 10 were improper payment of public money contrary to s. 23(2) and (3)(a) of the Public Finance Management Act in respect of the sum of K1,094,635,200-00 being money paid to Toyota Malawi as an expense by the Malawi Defence Force without authority; and influencing the use of public office for advantage contrary to s. 25B [2] of the CPA. Conspicuously, the Respondent has abandoned the latter charges. The thrust of the Applicants’ contention is that the decision of the Respondent to prosecute the 2" Applicant in his capacity as Managing Director of the 1% Applicant is without merit. It is frivolous and vexatious and an abuse of prosecutorial powers. The Applicants contend that when the matter is viewed objectively, there is clearly no evidence of any offence committed by the Applicants to warrant prosecution. It is on this basis that the Applicants seek permanent stay of prosecution and ancillary orders. On the other hand, the Respondent contends that the Applicants’ contention lacks merit in that the Respondent has legal imprimatur to investigate, arrest and prosecute all persons alleged to have committed offences known to our criminal justice system. The Respondent bases its claim to such powers and mandate under the CPA. It is thus argued that the Respondent could not be said to have acted either ultra vires or Wednesbury unreasonably. It is further contended that the Applicants’ application for judicial review is an obvious vanity and an exercise in futility only made to aid the Applicants escape the long arm of the criminal justice system. 31 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.4.5 My task, therefore, is to decide whether as the Applicants claim to order a permanent stay of prosecution and ancillary reliefs or indeed dismiss -, the judicial review on reasons advanced by the Respondent or indeed fy for any other reasons known to law. 3.5 The Applicants’ Submission on the Law 3.5.1 BiDied 33:3 The Applicants, in submissions through Counsel Nampota and Counsel Gondwe, concede that the relief of permanent stay of prosecution is radical. Counsel Nampota submits that barring the prosecution before the trial begins is far reaching and not the norm. It is an exception to the norm. It prevents the prosecution from presenting the society’s complaint against an alleged transgressor of acceptable rules of conduct. That will seldom be warranted. Counsel Nampota admits that the Respondent is vested with prosecutorial powers under the CPA. The Respondent has, under the CPA, powers to investigate, arrest and indeed prosecute for corrupt practices. This is the traditional role of every public prosecutor. Counsel submitted that there is an inherent expectation that arrests and prosecutions shall be conducted in accordance with fairness. Objectivity must manifestly be seen to be the prosecutor’s sole guiding post. This view is so firmly entrenched in international governance systems that any deviation therefrom leads to a challenge of prosecutorial decision. In Counsel Nampota’s view, the rationale is simple. Nothing could bring greater disrepute to the administration of criminal justice than a suspect or ill-conceived prosecutorial decision. Suspicion that improper conduct played a part in the handling of criminal prosecutions undermines the impartiality of an entire proceeding. Where objectivity is shown to be lacking, corrective action is necessary to protect “the integrity’ of the criminal justice system”. The rule of law permits a court to interfere with a prosecution decision by, for example, staying the proceedings or granting some other appropriate remedy. In the 32 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. "53.5.4 3.5.5 3.5.6 result, courts are now a key element of the checks and balances against abuse of prosecutorial powers. Counsel Nampota further submitted that the Court has powers to stay prosecutorial decisions in appropriate circumstances. Prosecutors have a duty in the investigation of alleged offences and in the initiation of prosecution to exercise an independent, objective, professional judgement on the facts of each case. It is a grave violation of their professional and legal duty to allow their judgment to be swayed by subjective or extraneous considerations. It is also well established that interference with a prosecutorial decision, although available in principle, is a highly exceptional remedy. The language of the cases shows a uniform approach: “rare in the extreme” (R v. Inland Revenue Commissioners, Exp. Sharma v Deputy Director of Public Prosecutions ORS (Trinidad and Tobago) [2006] UKPC, [1993] 1 All ER 722, 782); “sparingly exercised” (R v. Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136, 140); “very hesitant” (Kostuch y. Attorney General of Alberta (1995) 128 DLR (4") 440, 449): “very rare indeed” (R (Pepushi) v. Crown Prosecution Service [2004] EWHC 798 (Admin), [2004] Imm AR 549, para 49); “very rarely” (R (Bermingham) v. Director of the Serious Fraud Office [2006] 200 (Admin), [2006] 3 All ER 239, para 63. In R v. Director of Public Prosecutions ex parte Kebilene [2000] 2 AC 326, 371, Lord Steyn said: “My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applications is not amenable to judicial review.” Courts have given a number of reasons for their extreme reluctance to disturb decisions to prosecution. However, there is ratio decidendi to the effect that despite all safeguards that may be there in a criminal trial, the Court still reserves the power to restrain proceedings which are an abuse of its process, even where such abuse does not compromise the fairness of the trial itself: see R v. Horseferry Road Magistrate’s 33 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.5.8 3.5.9 Court, Ex p Bennett [1994] 1 AC 42) and Attorney-General’s Reference (No 1 of 1990) [1992] QB 630, 642. Counsel Nampota submitted further that the basis for the Court’s power was well adumbrated in the case of R v. Horseferry Road Magistrates’ Court, ex p Bennet, supra by Lord Griffiths (whose speech Lord Bridge of Harwich, Lord Lowry and Lord Slynn of Hadley agreed with) who explained the rationale in the following passage (at pp.61H — 62A): “If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behavior that threatens either basic human rights or the rule of law. My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law” Counsel Nampota argued that, broadly speaking, the power of the Court to interfere with a prosecutorial decision, as rarely exercised as it were, stems from the judiciary’s oversight of executive. The power to stay for abuse of process can and should be understood widely enough to — embrace an application challenging a decision to prosecute on the ground that it was arrived at rather than by an objective review of proper prosecutorial considerations (such as, in England, those set out in the Code for Crown Prosecutors issues under the Prosecution of Offences Act 1985). Among the authorities which give support to the propositions, Counsel Nampota pointed to R v. Grays Justice, Ex p. Low [1990] 1 QB 54, Hui-Ching v. The Queen [1992] 1 AC 34, 57, Attorney General of Trinidad and Tobago v Phillip [1995] 1 AC 396, 417C-D and R y. Director of Public Prosecutions, Ex p. Kebilene [2000] 2 AC 326. Counsel Nampota urged me to note the principles applicable in a judicial review where one of the interim reliefs being sought is a stay of the prosecution of the criminal proceedings. The basic principle is that it is for the prosecution, not the court, to decide whether a 34 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. a prosecution should be commenced and, if commenced, whether it should continue. In support of this proposition, Counsel Nampota cited the case of Environment Agency v. Stanford [1998] C. O. D. 373, DC, where Lord Bingham LCJ said: . “The jurisdiction to stay, as has been repeatedly explained, is one to be exercised with the great caution... The question of whether or not to prosecute is for the prosecutor. Most of the points relied on in support of an argument of abuse are more profitably relied on as mitigation”. See also Wandsworth London Borough Council v. Rashid [2009] EWHC 1844 3.5.10 However, Counsel Nampota urged me to observe that courts have an overriding duty to promote justice and prevent injustice. From this duty, there arises an inherent power to "stay” an indictment or stop a prosecution if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of prosecutorial discretion. Abuse has been defined as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case: see Hui Chi- Ming v. R. [1992] 1 A. C. 34, PC). “Unfair and wrong” is for the court to determire on the individual facts of each case. The concept of a fair trial involves fairness to the prosecution and to the public as well as to the defendant: See: DPP v. Meakin [2006] EWHC 1067. 3.5.11 Counsel Gondwe, also for the Applicants, submitted that the inherent jurisdiction of the court to stop a prosecution to prevent an abuse of process must be exercised only in exceptional circumstances: see Attorney General’s Reference (No 1 of 1990) [1992] Q. B. 630, CA; Attorney General’s Reference (No 2 of 2001) [2004] 2 A. C. 72, HL and R y. Crown Court at Norwich ex parte Belsham (1992) 94 Cr. App. R 382, QBD. 3.5.12 This principle was confirmed and extended to the police by the House of Lords in the case of Bennett v. Horseferry Road Magistrates’ Court and Another [1993] 3 All E. R. 138, 151, HL; see also R v. Methyrydfil Magistrates’ Court and Day ex parte DPP [1989] 35 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.6 Crim. 148. Whilst the courts do not have any power to apply direct discipline to the police or the prosecuting authorities, they can (in Lord Griffiths’ words in the Bennett case) “refuse to take advantage of abuse of power by regarding their behavior as an abuse of process and thus preventing a prosecution”. 3.5.13 Counsel Gondwe submitted that there is ample authority for permanent stay of prosecution for vexation and frivolity. Reliance was placed on the following dicta in the Namibian case of Namibian Financial Institutions Supervising Authority v. Christian and Another 2011 (2) NR 537 (HC): “It is in correct statement of the law that at common law, our superior courts have inherent jurisdiction to prevent an abuse of the process by either staying proceedings in certain circumstances or even dismissing them altogether but the power to do so will be exercised sparingly and only in exceptional circumstances. Proceedings will be stayed when they are vexatious or frivolous or when their continuance, in all circumstances of the case, is, or may prove, to be, an injustice or serious embarrassment to one or other of the parties: See 3.5.14A court has inherent jurisdiction to stay proceedings on prosecution permanently as being frivolous and vexatious in order to prevent abuse of its powers. Counsel Gondwe submitted that the Court can resort to its inherent powers to stop the prosecution of the Applicants. He referred the Court to the holding in Montreal Trust Co. v. Churchill Forest Industries [Manitoba] Ltd (1971) 2 DLR (3") 75: “Inherent jurisdiction is the reserve or fund of powers, a residential source of powers, which the Court may draw upon as necessary whenever it is Just or equitable to do so, and in particular to ensure the observance of due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”. The Respondent’s Submissions on the Law 3.6.1 As already mentioned, the Respondent is opposed to the Substantive 36 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. ar a 3:6.2 3.6.3 3.6.4 Judicial Review Application. Counsel Khunga submits that there was no error of law in the way the Respondent made his prosecutorial decisions in this matter and did not act Wednesbury unreasonably. He cited Anti-Corruption Bureau v. Hashmi and Finance Bank Limited [2005] MWHC 19 and Re Ministry of Finance Ex parte SGS Malawi Limited [2003] MWHC 41 regarding the closed list of grounds on which a Court will quash a decision of the public office or authority in judicial review proceedings. Counsel Khunga submits that s.10 of the CPA mandates the Respondent to, among other things (a) receive any complaints, report or other information of any suspected corrupt practice under the CPA, (b) investigate any complaint, report or other information received, (c) investigate any alleged or suspected offence under the CPA, (d) investigate any offence under any written law disclosed in the course of investigating any alleged or suspected corrupt practice of offence under the CPA, (e) inquire into any matter in relation to the exercise of its other functions under s. 10 of the CPA, and (f) subject to the directions of the Director of Public Prosecutions to prosecute any offence under the CPA. Counsel Khunga submitted that in the discharge of his mandate, the Respondent was investigating alleged offences involving a contract signed on 23 June 2013 between the Defence Force and Toyota Malawi for the supply of 35 vehicles at a contract price of K894, 635, 200.00. The investigations revealed that the following persons were connected to this contract: Gen. Henry Odillo, Lt. Gen. Clement Kafuwa, Richard Tedwille Makondi, Mohammed Abdul Gaffar Kassam and Globe Electronics Limited. The Respondent decided to institute criminal proceedings under s. 83 of the CP&EC. The Applicants have resisted all attempts by the Respondent to inquire into what they know about the matter, without any justifiable reason. Counsel Khunga submitted that for there to be a judicial review of challenged decision, the Applicants must show that in the process of 37 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. fX 3.6.5 3.6.6 ois! 3.6.8 3.6.9 making this decision, not the decision itself, the Respondent violated the law; or had no jurisdiction; or acted ultra vires or acted unreasonably. Counsel Khunga emphasized that judicial review is not an appeal against the decision of a public office or authority and he cited a host of cases including Anti-Corruption Bureau v. Hasmi and Finance Bank Limited [2005] MWHC 19, Minister of Finance and Governor of the Reserve Bank of Malawi v. Golden Forex Bureau Ltd and Others [2007] MWHC 4, The State and another v. Phiri [2003] MWHC 5 and Hailulu v. Director, Anti-Corruption Commission and Others [2016] NASC 25. Counsel Khunga argued that there was no error of law in the decision to inquire from the Applicants on the suspected fraudulent activities connected to alleged offences the Respondent was investigating. Indeed, the application for judicial review does not assert that there was any error of law. . Counsel Khunga further submitted that the Respondent acted within his jurisdiction and, therefore, there is no jurisdiction for the application for judicial review. There is no triable issue with regard to the jurisdiction of the Respondent with regard to its decision-making process. . Counsel Khunga furthermore contended that the Applicants have not shown that the Respondent acted ultra vires with regard to his decision. Counsel Khunga referred the Court to the 2" Applicant’s affidavit in the 2" JR Case and invited it to note that the 2" Applicant explains therein at length his involvement with regard to the Contract that the Respondent investigated and intends to prosecute. The Respondent disputes the Applicants’ assertion that the Respondent was unreasonable in making the decision complained of. Counsel Khunga contended that the Applicants have not given the grounds or 38 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. su reasons why they make that assertion. Counsel Khunga contended that the evidence herein does not meet the standard of unreasonableness as " reiterated in the case of The State and another v. Phiri [2003] MWHC 25: “By “irrationally” I mean what can by now be succinctly referred to as “wednesbury unreasonableness” (Associated Provincial Picture House Ltd —y- Wednesbury Corporation (1948) 1 K. B. 223. It applied to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” 3.6.10All in all, Counsel Khunga invited me to dismiss the Substantive Judicial Review Application for want of merit. 3.7 Analysis De tel Bald This case raises very novel issues. The said issues are not subject of daily or routine litigation in our courts. With the exception of the cases of The State V. Director of Anti-Corruption Bureau Ex parte Frank Farouk Mbeta wherein my sister Judge, Ntaba J., gave leave to move for judicial review of prosecutorial powers and The State v. Director of Anti-Corruption Bureau ex parte Shiraz Fereirra; Judicial Review Case No. 82 of 2015 and The State v. Officer In Charge of Blantyre Police Station; exparte Mabvuto Khoza wherein my brother Judge, Tembo J., did likewise, litigation of this nature rarely comes before our Courts. I presume the reason is that a prosecutor of necessity must be left alone to flex his or her muscles against criminal activities and their perpetrators. Unless something very untoward happens in the way the prosecutor has conducted his duties, leaving him or her alone seems a sacrosanct ethos to be respected at all costs and in all weather by the Courts and the litigating public. It is from that viewpoint that I have been very cautious in considering the issues in this case. The case pulls on two opposing ends of the criminal justice system vis-a-vis prosecutorial discretion. The 39 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. Respondent believes he has powers to investigate, arrest and prosecute the Applicants. While conceding that the Respondent is vested with -, such powers, the Applicants believe that the Respondent has gone 3.7.3 3.7.4 Bt id overboard. They contend that, having concluded his investigations of the Applicants in respect of the transactions more fully explained below, the Respondent had no sufficient evidential material on which he could decide to prosecute the Applicants. Before I proceed to venture into my analysis of the law and the evidence, let me place on record my gratitude to counsel for their respective research and industry which was of immerse assistance to the Court. I may not, however, in the course of my judgment be able to recite every submission they made. This is to be expected where the skeletal arguments (including case reports) are voluminous, running into a total of well over 200 pages. Be it as it may, the parties and their counsel can be rest assured that I have carefully adverted to all arguments they advanced. As I decide this matter, I do so with whatever they said in mind. If I do not refer to some of the authorities they cited to me, I do so not as an act of disrespect to Counsel but simply for the imperative need for brevity. The law relating to judicial review is not in dispute. Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision- making process itself: see Jamadar v. Attorney General [Department of Immigration] [2000-2001] MLR 175 and Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155. In the latter case, Lord Hailsham said at page 1160 that: “it is important to remember in every case that the purpose of [the remedy of judicial review] is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. ” 3.7.6 A decision of a public authority may, therefore, be quashed where the 40 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. w oe 4% authority acted without jurisdiction or exceeded its jurisdiction, or _ failed to comply with the rules of natural justice where such rules are 3.7.7 ‘applicable, or where there is an error of law on the face of the record or the decision is unreasonable in the Wednesbury sense. The function of the courts, including this Court, in judicial review is not to act as an appellate tribunal in relation to decisions complained against. It is also not to interfere in any way with a public officer’s/office’s exercise of any power or discretion conferred on it unless the same has been exercised beyond jurisdiction or unreasonably. In other words, the court must not do that which the public authority whose decision is the subject of review is by law mandated to do. If the courts did that, they would under the thin disguise of preventing abuse of power be themselves guilty of exercising powers they did not have. The purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected: See Chief Constable of North Wales Police v Evans, supra. Having mentioned Wednesbury reasonableness, it may not be out of order to say some more about it. The classic formulation of Wednesbury reasonableness is that by Lord Greene in the Associated Provincial Picture House Ltd v. Wednesbury Corporation (1948) 1 K. B. 223, Lord Greene stated that courts could only interfere if a decision is so unreasonable that no reasonable authority could ever come to it. Examples are bad faith, perversity, absurdity implying that the decision-maker has taken leave of his senses: see also Pulhofer v. Hillingdon LBC [1986] 3 All ER 353 and R v Secretary of State for the Environment ex parte Notts CC [1986] AC 240). In Council of Civil Service Unions v. Ministers for the Ministers for the Civil Service [1985] AC 374 Lord Diplock equated unreasonableness to irrationality which he described as applying to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. It is also important to remember that judicial review is also expressly provided for in the Constitution. Section 108(2) of the Constitution vests the High Court with jurisdiction to “to review any action or decision of the Government for conformity with the Constitution, save as otherwise provided by this Constitution”. Then there is also ss. 40 and 43 of the Constitution. The net effect of these provisions is that 41 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. administrative actions/decisions must be lawful, procedurally fair, justifiable in relation to the grounds/reasons given and have reasons therefor given in writing: see State v. Chief Secretary to the President and Cabinet, Ex parte Muluzi [2011] MLR 357. In view of these constitutional provisions, the judiciary has to recognise that in certain circumstances it is necessary to undertake a more searching review of administrative decisions, that is, the reviewing court has to subject the challenged decision to "anxious scrutiny" as to whether an administrative decision infringes a constitutional right. 3.7.10As I understand it from Form 86A, the Applicants’ application for Judicial review is premised on unreasonableness or irrationality of the challenged decision. The basis of judicial review hence the relief of permanent stay of prosecution is that the Applicants contend that there is no evidence to prove the offences in the Warning and Caution Statement as well as in the charge sheet in the lower court in so far as it related to the Applicants. In Associated Provincial Picture House vy. Wednesbury Corporation, supra, Lord Greene held that a person entrusted with discretion must direct himself properly in law. He must call his attention to the matter he is bound to consider. If he does not obey these rules he may be truly said to be acting unreasonably. 4 3.7.11 Unreasonableness resonates or sits together or is not strange bed- fellows with irrationality. As Lord Diplock said in Council of Civil Service Unions v. Ministers for the Ministers for the Civil Service, supra, by irrationality is meant what can be succinctly referred to as Wednesbury unreasonableness. This applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. 3.7.12On the facts of this matter, ] am called upon therefore to decide whether a person well knowledgeable of the background and factual context of this case would think or believe that there is enough reason for the Respondent to mount prosecution of the Applicants. I remind myself once again that I am reviewing not the decision to prosecute the Applicants but the process of arriving at that decision. 42 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. ay ae 3.7.13The Respondent could only reasonably and rationality make the decision to prosecute the Respondent if there is evidence to support the offences alleged to have been committed by the Applicants. To be more direct, the Respondent could only be said to be reasonable and rational to prosecute the Applicant’s if, for example, he had evidence of conspiracy or money laundering amongst or by Gen. Odillo, Lt. Gen. Kafuwa, Richard Makondi and the Applicants. To be fair to the Respondent, and to the great efforts made by Counsel Khunga to have the Court see it, I have been unable to see a scintilla of evidence of conspiracy or money laundering amongst the above-mentioned persons. 3.7.14As I see it, there was no point of meeting of minds amongst the said persons. The Applicants had dealings with Toyota Malawi for a long time. The Applicants were contracted by Toyota Malawi. Invoices were directed to Toyota Malawi. They were paid by Toyota Malawi. They never dealt with the Defence Force throughout the life of the contract. 3.7.15 Of course, the Applicants delivered the batteries and chargers to the Defence Force. However, the delivery notes speak for themselves: the Applicants delivered the goods on behalf of Toyota Malawi. After delivery of the goods to the Defence Force, there was left in the hand of the Applicants some balance returnable to Toyota Malawi. The balance came about because in the first place Toyota Malawi requested the Applicants to supply radio systems to the Defence Force. The Defence Force thereafter changed its needs. It no longer needed radio systems. It opted to procure batteries and chargers. Toyota Malawi forwarded Defence Force requirements to the Applicants. The cost of chargers and batteries was lower than that of radio systems. As Toyota Malawi had paid the higher cost of radio systems, it was entitled to refund of the difference. The refund was made. 3.7.16The thread and sequence of the transaction leads to no or no reasonable conclusion of criminality. My most candid view is that the fact that the Applicants fell within a chain of supply of goods to the Defence Force 43 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. does not suffice for criminal activity. I tend to agree with the Applicants that to every offence there are elements of mens rea and actus reus. There is no actus reus for conspiracy or money laundering on the facts even to talk of mens rea. 3.7.17 The Respondent seems to peg criminality to the following issues, if the Warning and Caution Statement and the accompanying interview are anything to go by: the fact that Toyota Malawi made upfront payment to the Applicants only on the basis of an invoice without a written contract and the fact that it took over a year for the Applicants to deliver the goods to the Defence Force. To my mind, there are ready answers to allay the suspicion or fears or apprehension of the Respondent. Several interviewees who were employees of Toyota Malawi confessed that there was nothing inimical about upfront payment. It was advantageous to Toyota Malawi to proceed that way. Toyota Malawi was hedging against local currency fluctuation. Volatility of the Malawi Kwacha caused Toyota Malawi to pay the Applicants in advance to avoid foreign exchange loss. In any event, Toyota Malawi had a guarantee with the Applicants and their associated business, namely, Universal Caf Sales. In the event of default on the radio systems deal. Toyota Malawi would have comfortable recourse to the guarantee to recoup its loss. Further, the Managing Director of Toyota Malawi had the discretion to enter into such contracts or arrangements as was done in the present manner. In all this, as all witnesses at Toyota Malawi stated to the Respondent, it did not matter whether the contract was in writing or not. 3.7.18 I notice that the Applicants did not plead illegality or ultra vires of the prosecutorial decision of the Respondent. It is the Respondent that raised it. Counsel Khunga submitted the Substantive Judicial Review Application must fail because the Respondent acted within their mandate and power. He did not exceed his jurisdiction. He did not act ultra vires in his intention to prosecute the Applicants. Counsel Khunga relied on s. 10 of the CPA. 44 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.7.19 I agree with Counsel Khunga on the purport of s. 10 of the Act. However, the way the Respondent effected an arrest in this matter violated s. 15 of the CPA. The Respondent arrested the 2"! Applicant under ss. 96, 98 and 99 of the CP&EC. Worse still, the Respondent flouted s. 6 (2) of the CP&EC which provides that offences under any other written laws shall be inquired into, tried and otherwise dealt with — in accordance with the CP&EC. This is subject to any Act for the time being in force regulating the manner or place of inquiring into or trying or otherwise dealing with such offences. The CPA provides for the manner of inquiring into offences under it as well as offences under any other statute. If there are persons suspected of having committed offences under the CPA, then the Respondent must have recourse to s. 15 of the CPA. In fact, the Respondent is further regulated by the Bureau Standing Orders made under s. 18 of the CPA. 3.7.20 In Muhammed Jawad v. The Republic, HC/PR Criminal Appeal Case No. 26 of 2015 (unreported), the High Court warned against relying on provisions in the CP&EC on a matter that is governed by a specific piece of legislation, at page 16: 4 “It is trite that the CP&EC is a statute of general application. Where there is a Special provision dealing with a subject a general provision, however widely worded, must yield to the former. The principle is expressed by the maxim “gereralia specialibus non derogant”. Thus when Parliament has given attention to a specific subject and made provision for it, the presumption is that a general enactment is not intended to interfere with the specific provisions: see the Indian case of Venkatarama Devaru vy. State of Mygore, AIR 1958 and the Canadian case of Lalonde v. Sun Life [1992] 3 SCR 261. Of course, the presumption can be displaced by a contrary intention being clearly manifested.” 3.7.21It is crystal clear to me that the Respondent adopted or used wrong procedure to obtain warrants of arrest and to commence the prosecution. Plainly, the warrant of arrest was granted on the vestiges of wrong procedure. I am fortified in my view by the fact that in the 1°" JR Case, the Applicants and the Respondent entered into a Consent Order whereby it was agreed, among other matters, that “2. The 45 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. warrants of arrest that were issued against the Applicants BE and are HEREBY permanently stayed” 3.7.22 It is noteworthy that the parties to the Consent Order did not just agree to a conditional stay of the warrant of arrest but to a “permanent stay” thereof. The relief of permanent stay of warrant of arrest is radical. In this regard, the all-important question to be asked is why would the Respondent agree to such an order if he had ample evidence against the Applicants. I have read and read the evidence and I have searched in vain for an explanation from the Respondent why he opted to agree to enter into a Consent Order with such a provision. The Applicants argue that the Respondent agreed to a permanent stay of the warrant of arrest because he too appreciated that the Anti-Corruption Bureau had no evidence on the basis of which it could competitively level criminal charges against the Applicants. Having agonized over the matter, I am fully persuaded by Applicants’ argument. Short of this argument, we would merely enter circulus inextricabilis (for it is no less). 3.7.23 In the circumstances and by reason of the foregoing, the Substantive Judicial Review Application must succeed. 3.8 Conclusion 3.8.1 Having caricatured a long journey into the facts and law applicable to the Substantive Judicial Review Application, I am satisfied on the balance of probabilities that the Applicants did not touch money the property of the Malawi Government. The evidence is wanting in majority respects. The Warning and Caution Statement shows that the Respondent for whatever reason decided to go after the Applicants who are not connected or part of the commission of the offences. This suspicion on the part of the Respondent held good before the investigations were carried out. After investigating the case, the Respondent, on the evidence, should not have made the challenged decision. The Respondent had no evidence to support the charges leveled against the Applicants. Simply put, no money changed hands 46 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.8.2 3.8.3 between the Applicants and the Defence Force. The Applicants dealt with Toyota Malawi with whom they had a long time commercial relationship in their business endeavours. The Applicants issued an invoice to Toyota Malawi and Toyota Malawi paid the invoice value. It is not the Malawi Government that paid. The Respondent’s decision to prosecute the Applicants in this matter is Wednesbury unreasonable. In the premises, the challenged decision ought to be quashed and I proceed to do so. A permanent stay of prosecution be and is hereby granted. The Applicants are losing business avenues due to this case as explained above. Yet the allegations against the Applicants are clearly spurious and the investigation and prosecution process itself was riddled with a high degree of irregularity. To sum up, the Applicants have succeeded in this action. As such, with the exception of one order (discussed below at paragraph 3.8.4), all the declaratory orders that they sought are granted. For the avoidance of doubt, the following declarations and orders be and are hereby granted: (a) an order granting permanent stay of prosecution of the Applicants in the lower court and/or in any court of law on the facts of this matter; (b) a declaration that the prosecution of the Applicants in the court below or indeed any other Court is unjustified affront to the Applicants’ right to economic activity; (c) a declaration that the challenged decision is not necessary in an open and democratic society, is unreasonable, negates the essential content of the Applicants’ right to economic activity; and (d) a like order to certiorari quashing the challenged decision in the circumstances. 47 State v. Director of Anti-Corruption Bureau ex p. Globe Electronics Ltd & Another Kenyatta Nyirenda, J. 3.8.4 The exception relates to the prayer by the Applicants that the Court should direct the Respondent to write a letter to the Applicants’ ‘business partners, associates, investors, counterparts and to whom it may concern clearing the Applicants from all wrong-doing and from criminal allegations in the lower court or any other court of law. At the trial, the Applicants did not pursue their prayer for this relief. I take it that the Applicants abandoned this relief even though they pleaded it in Form 86A. This relief is not, therefore, granted. £¥ 4.0 COSTS Costs are in the discretion of the court but normally follow the event: see section 30 of the Courts Act as read with Order 62 Rule 3(3) of RSC: see also State v. Refugee Committee Ex parte Jones and Others, HC/PR Miscellaneous Civil Cause No. 31 of 2005 [unreported]. In exercising its discretion, the Court must consider all the circumstances of the case: see National Bank of Malawi v. Zgambo and Another [1994] MLR 239. The present case, as was accepted by the parties, is unique and raises very noyel issues of national importance. In the premises, I consider that the appropriate order to make would be that each,party should bear its own costs and so it is ordered. Pronounced in Court this 24" day of April 2017 at Blantyre in the Republic of Malawi. | ( Cun) \. Kenyatta Nyirenda JUDGE 48