State( on the Application of Itaye) v Ombudsman (Judicial Review Case 23 of 2021) [2021] MWHCCiv 28 (18 May 2021)

IN THE HIGH COURT OF MALAWI CIVIL DIVISION PRINCIPAL REGISTRY JUDICIAL REVIEW CASE NO. 23 OF 2021 (Before Justice Rachel Sophie Silkwese) BETWEEN: STATE (THE), (ON APPLICATION OF GODFREY IPAYE) ....cs.eccsneresrerenes APPLICANT AND OMBUDSMAN (THE) ...cccsesssccnereeseenceneeeenes snevenvaneacnentesusassesanersasasensens RESPONDENT CORAM HON. FUSTICE RACHEL SOPHIE SHKWESE Messrs Gondwe & Attorneys, Counsel for the Applicant Counsel for the Respondent: Not served Mithi; Official interpreter ORDER ON AN URGENT APPLICATION WITHOUT NOTICE FOR INTERIM RELIEF TO STAY DETERMINATION OF THE OFFICE OF THE OMBUDSMAN PENDING JUDICIAL REVIEW OF THE DECISIONS AND EXERCISE OF POWERS IN THE DETERMINATION CONTAINED IN A REPORT DATED 10 MAY 2021 TITLED “SECURE IN DECEPTION”, (Pursuant to sections 108 (2) and 123 (2) of the Constitution as read with Order 19 rule 20 and Order 16 rule 1 of Courts (High Court) (Civil Procedure) Rules 2017) SIKWESE J Page Lof4 Background 1, On 12 May 2021, the Applicant filed this application without notice for permission to apply for the review of the decision and exercise of powers by the Office of the Ombudsman in the determination contained in the report of 10 May 2021 titled “Secure in Deception” and for an interlocutory order of stay of the said determination up until the determination of the Review by this Court in accordance with section 123(2) of the Constitution and that costs be provided for. The interlocutory order of stay is premised on the Applicant’s apprehension that if the Respondent’s directives are not stayed his “employment (with MACRA) will be nullified”. Considerations 3, Leave for judicial review shall be granted, if on the material before the Court, it appears that, without going into the matter in depth, there is an arguable case for granting the relief claimed by the Applicant. The requirement that leave must be obtained is to enable the Court to sieve out what might turn out to be frivolous or misconceived claims, Malawi Revenue Authority v Kivuyo!. The issue at this stage in the proceedings, is therefore, not to determine the matter on the merits but rather to decide whether a prima _ facie case has been made out requiring the Court to order the matter to go for further investigation at a judicial review hearing. Pursuant to Order 19 Rule 20 (1)(b) and (c), at a judicial review hearing the Court is required to review a decision of the Government or a public officer for conformity with the Constitution or a decision, action or failure to act in relation to the exercise of a public function in order to determine its lawfulness, its procedural fairness, its justification of the reasons provided, if any; or bad faith, if any, where a right, freedom, interests or legitimate expectation of the Applicant is affected or threatened. Based on this requirement, the role of the Court at this stage is to determine whether the Applicant has disclosed on the papers a case that shows on the face of it that a decision of the Respondent is not in conformity with the Constitution, is unlawful, procedurally unfair, unjustified or in bad faith. ' High Court, Revenue Cause Number 1 of 2017 (unreported) Page 2 of 4 7. It is also the duty of this Court to determine at this stage in the proceedings whether it has competence/ jurisdiction in accordance with the Constitution and other relevant laws and jurisprudence to handle the matter. 8. This application arises out of the Ombudsman’s determination in which she made several directives pursuant to her Constitutional powers under section 123(1) of the Constitution and section 5(1) of the Ombudsman Act as read with section 8(b) of the Ombudsman Act. 9, Section £23 (2) of the Constitution provides that, “ notwithstanding subsection (£), the powers of the office of the Ombudsman under this section shall not oust the jurisdiction of the courts and the decision and exercise of powers by the Ombudsman shall be reviewable by the High Court on the application of any person with sufficient interest in a case the Ombudsman has determined”. 10. The Applicant has filed Form 86A with this application in which he has made several allegations of irregularities in the way the office of the Ombudsman conducted the investigation and arrived at her decision and consequent directives. 11. Some of the Applicant challenges are: (a) the source of the investigation by attacking the mode of Jodging the complaint Vocus standi of the complainant) against the Applicant, (6) her findings that the recruitment of the Applicant as MACRA Director General was illegal (c) her unreasonable directive that the contract of employment of the Applicant should be nullified and that he should not be paid terminal benefits for 2016-2019 contract and that the office of the Ombudsman “ overstepped her constitutional powers and mandate in making consequential orders when such powers are vested in the courts”. 12, The Applicant has satisfied the constitutional and statutory requirements to be granted permission to apply for review of the Ombudsman’s determination made in her 10 May 2021 report. 13. The Applicant has however not justified his application for stay of the office of the Ombudsman’s determination because being a complaint founded in employment law, the Applicant has adequate remedies under his contract of employment should the Court find in his favour against the office of the Ombudsman’s determination. Page 3 of 4 Page 4 of 4 ORDERS 14. The application fop Permission to app] 1S. The application for Y for Judicial Review is granted, interim relief to Stay the determination of the Ombudsman is denied Made this 1gt day of May 2021 at High Court (Civil p i Rache! Sophie Sikwese JUDGE ivision) Blantyre.