Mpinganjira & Six Others v Speaker of National Assembly & Attorney General (Miscellaneous Civil Cause 3140 of 2001) [2001] MWHC 99 (27 November 2001)

Mpinganjira. Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament Att... Page | of 18 IN THE HIGH COURT OF MALAWI cvit PRINCIPAL REGISTRY ) < THM Bhpe JUN 2005 h y MISCELLANEO S CIVIL CAUSE NO. 3140 OF 2001 1 | CT REGISTRY]| BETWE HON., BROWN MPINGANIIRA. ...comnemnmusnssssssmsesesssesassensoss HON. LIZZIE MPINGANJIRA HON. PETER CHUP/ SHAM NAURA 4TH PLAINTIFF TH PLAINTIFE TH PLAINTIFF ............................................... TTH PLAINTIFF THE SPEAKER OF TH THE ATTORNEY G IKAPANDA nbara, Nyimba and Chalamanda, CORAM: THE HON. MR JUSTICE M/s K of Counsel for the Plaintiffs (Applicants) Ni/s Matenje and Chisanga, of Counsel for the Defendants (Respondents) M/s Kaundama and Balakasi, Official Interpreters /Recording Officers Dates of hearing : 12th and 13th November 2001 Date of ruling : 27th November 2001 Kapanda, J RULING Introduction On the 6th of November 2001 the Speaker of the National Assembly declared the Parliamentary seats of’ Plaintiffs vacant. Two days order of an interlozutory injunction against the Defendants (Respondents), and it was in the Tollowing ter i.c. on 8th November 2001, during an ex-parte application. this later, “Until the hearing of the inter partes application for injunction slated for Sunday November 11th, 2001 a 14.0C hours tne Defendants must not either by themselves, their servants, followers or agents, or howeve otherwise:- 0.1 Impiement the decision ol dismissing the Plaintiffs from the National Assembly or declaring their racant. se http://www judiciary mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.htm! 4/5/2005 Mpinganjira. Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament Att... Page 2 of 18 0.2 Bar the Plaintitfs from enjoying the privileges and exercising powers given to them by the positions hold as members of the National Assembly until a further order of this court or until a trial.” It was further ordered by this court that the service of the order would be effected on the office of the At General. The order in respect of service was made in view of the privileges and immunities that the offic Speaker is said to enjoy when the National Assembly is sitting Further. it has to be observed that this order was made pursuant to the Plaintifl”s (Applicant) prayer cont in the ex-parte summons filed with the court on the said 8th of November 2001. In the ex-parte summon Applicants were praying for an interlocutory order of injunction to restrain the Defendants (Respondents agents or servants, from enforcing the decision of the Speaker declaring the seats of the Applicants, in th National Assembly. vacant and expelling the Applicants from the National Assembly pending the determination of the Plaintiffs™ (Applicants™) application for Judicial Review. Perhaps it is also important to note that on the 9th of November 2001 the Applicants were actually grant leave to apply for Judicial Review. I shall revert this order of 9th November 2001 later in this Ruling. Si it to say. at this stage, that on the grant of leave this court observed that the Applicant’s complaint merits hearing under Judicial Review (see the order of my learned brother Judge Hon. Mr Justice Hanjahanja m 9th November 2001). Moreover, I wish to point out that the title of both the Summons herein and the Notice of Application o1 Judicial Review belie the real intention behind the applications. of application for leave to apply for Judicial Review, ought to have been as follows:- The title of these proceedings. and the “The State vs- I'he Speaker -and- I'he Attorney General Lx-parte (The names of the Applicants viz Hon. Brown Mpinganjira ete.” Itis no wonder that the title of the heading of these proceedings has caused a lot of confusion as regards whether these proceedings are a suit or not. It is hoped that learned Counsel for the Applicants will, at tl appropriate time, regularise this position. I'he fact that Counsel for the Applicants did not properly draft the papers he filed with this court should | make us lose sight of the fact that this application has been made in Judicial Review proceedings. This drafting of documents. which for all intents and purposes is a technicality. should not make the Applican is found that same would be necessary and appropriate 1o get a temporary protection. from this court, if'it ‘T'he Inter-partes Application for an Interlocutory Injunction On the same day the Applicants were granted an ex-parte order of injunction they took out an inter-parte The ord summons for an interlocutory injunction returnable on Sunday the 11th day of November 2001, was being sought in this inter-partes summons was the same as the one in the ex parte - summons and | the relevant parts of the Applicant’s prayer:- hp://www judiciary. mw/civil/Mpinganjira_Chupa Naura_Speaker Attorny.html V52005 Mpinganjira. Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament Att... Page 3 of agents or servants from “--An interlocutory order of injunction (sought) to restrain the Defendants their in the National As enforcing the decision of the First Defendant to declare the seats of the Plaintiffs vacant and expel the Plaintilfs from the National Assembly pending the determination of the Plaint application for Judicial Review herein on grounds appearing in the affidavit of Viva Nyimba--" It must be noted that if there are any grammatical. or typographical. crrors in the relevant parts of the sw quoted herein then same have not been corrected. The Factual Background The factual background to this matter. in my judgment, can be discerned from the affidavits both in supp and in opposition to this application for an interlocutory injunction. Paul Jonas Maulidi, M. P. respectively. The said alfidavits have been sworn by Mr Viva Nyimba anc The alfidavit of Mr Viva Nyimba, sworn on 8th November 2001, contains, the following matters ol fact, are deponed to in support of the application for an interlocutory injunction: 2. THAT---- “(i) the Tst to 4th Plaintiffs were elected on the ticket of the United Democratic Front (UDI?) a political y registered in accordance with the laws of Malawi, but the said Plaintiffs were involuntarily expelled fron UDI party in January 2001 well before the amendment of Section 65(1) of the Constitution of Malawi w amendment was assented to on 22nd June 2001 (if) The Sth Plaintiff was clected on the ticket of the United Democratic Front (UDF) a political party registered in accordance with the laws of Malawi, but the said Plaintifl was involuntarily expelled as UDF sometime in the year 2000 and subsequently resigned from the UDIF party General of well before the amendment of Section 65(1) of the Constitution. Tre in February - (iii) The oth and 7th Plaintif1s were elected on the ticket of the Malawi Congress Party. a political party registered i accordance with the Taws of Malawi. 3. That the first to fourth Plaintiffs have since January 2001 in exercise of their Constitutional 1 [reedoms formed the National Democratic Alliance (NDA) pressure group which the fifth Plain February 2001 joined. inorder to participate in peaceful political activity intended to influence pe CICS ¢ government. and freely to make political choices but they still remained MPS representing their respecti: Constituencies ights anc [ later 4. Following the said expulsions from the UDI party, the first Plaintifl is still representing Mulanje Cen Constituency in the National Assembly; the second Plaintiff Constituency in the National Assembly; the third Plaintiff is still representing Blantyre City Constituenc: the National Assembly: the fourth Plaintiff is still representing Phalombe East Constituency in the Natio Assembly: fiith Plaintiff is still representing Zomba - Nsondole Constituency in the National Assembly is still representing Mulanje South - West and the THAT first Plaintiff is the President of the NDA; the second Plaintiff is an executive member of the the third Plaintiff is an executive member of NDA; the fourth Plaintiff is an executive member of NDA the fifth Plaintiff is the National Chairman of NDA. They are no longer members of UDF. hup://www judiciary.mw/civil/Mpinganjira_Chupa_Naura_ Speaker Atorny. hunl Mpinganjira, Chupa. Naura, Makhumula. Chakuamba. Ntaba Vs Speaker of Pariament AtL... Page 4 of 6. THAT the Constituency in sixth PlaintifT is the President of the said Malawi Congress Party and representing Nsanje the National Assembly while the seventh Plaintiff is the Treasurer General of the said Malawi Congress and representing Lilongwe South - East Constituency in the National Assembly. 7. THAT I am further informed by the Plaintiffs that the first Defendant has declared the Plaintiffs” seat the National Assembly vacant on grounds that:- (i) The first to fifth Plaintiffs have joined the National Democratic Alliance (NDA) a pressure group whe objectives are clearly political in nature, and thus the Plaintiffs have crossed the floor in the National Assembly (ii) The sixth and seventh Plaintif respectively. have joined the MCP/AFORD Alliance an organisation whose objective are political in nat s President and Political Secretary for the MCP/AFORD Alliance THAT 8. the Plaintiffs wish to challenge the said decision of the first Defendant on grounds that the rulc natural justice have not been followed and on the unconstitutionality of the said decision by the first Del as the Plaintifls have not received a fair and lawful interpretation of Constitution or at all. The Plaintiffs further contend that they have not crossed the floor in the National Assembly as:- (i) The first to fourth Plaintiffs. having been expelled from the UDI party. and after the amendment to S 65(1) of the Constitution, the said Plaintiffs were not members of the UDF Party anymore. (ii) The fourth Plaintiff having resigned from the UDF Party, and after amendment to Section 65(1) Constitution. the said Plaintiff was not a member of the UDF Party anymore. ol'th (iii) The sixth and seventh Plaintiff as individuals have not joined any organisation with political in natu their Malawi Congress Party as an organisation has formed an alliance with AFORD political party 9. THAT the Plaintiffs” Constituenci Defendant’s decision to declare the Plaintiffs’ seats vacant be implemented. all remain unrepresented in the National Assembly should the As regards the Defendants (Respondents). in opposition to this application, Hon. Mr Paul Jonas Maulid 1'1th November 2001, made the following pertinent sworn statement of facts on behalf of the Respondents:- “2. THAT I am the author of the letters that were written on 24th October 2001 addressed to the Speaker National Assembly concerning Hon. Brown Mpinganjira Member of Parliament for Mulanje Central, He Lizzie Mpinganjira Member of Parliament for Mulanje South East Constituency, Hon. James Makhumul Member of Parliament for Zomba Zondole Constituency. Hon. Gresham Naura Member of Parliament f¢ Phalombe North Fast Constituency and Hon. Peter Chupa Member of Parliament for Blantyre City Cent Constituency. 3. THAT the said letters were personally delivered by me to the Speaker of the National Assembly on 2 October 2001 and the five Members of Parliament namely Hon. Brown Mpinganjira, Hon. Lizzie Mpinganjira, Hon. James said letters were personally circulated to all Members of Parliament includi http://www judiciary. mw/eivil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html H5/2005 Mpinganjira, Chupa,Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament Att... Page 5 of 18 Makhumula. Hon. Gresham Naura and Hon. Peter Chupa on Sth November 2001, I was present in the House when these letters were being distributed to Members ol Parliamen 4. THAT saw the National Assembly messenger handing over the copies of the said letters to the five Members of Parliament 5. THAT [ was present in the House when the letters written by Members of Parliament for Lilongwe M dated 23rd October 2001 concerning Hon. Gwanda Chakuamba and Hon. Hetherwick Ntaba were being distributed to Memt Parliament including Ion. Gwanda Chakuamba and Hon. Hetherwick Ntaba on Sth November 2001, 6. THAT I personally talked to Hon. Peter Chupa who received copies of the said letters. knowledged to me that he and his colleag 1es h 7. THAT I verily believe that the seven Members of Parliament were duly served with the said letters or November 2001. 8. THAT when the Speaker made his ruling on 6th November 2001 declaring the seats vacant the Speak stated that he had not heard anything from the seven Members of Parliament as to whether they disputed challenged the allegations in the said letters or not and I verily believe that the said seven Members of Parliament have not responded to the allegations contained in the said letter to date. 9. THAT I verily believe that the five Members namely Hon. Brown Mpinganjira, Hon. Lizzie Mpingan Hon. James Makhumula. Hon. Peter Chupa and Hon. Gresham Naura have no valid grounds to challengc dispute the facts alleged in the said letters namely that they have joined an association known as Nationa Democratic Alliance whose objects UDI tickets: and that the two Members namely Hon. Gwanda Chakuamba and Hon. Hetherwick Ntaba are sei as President and Sceretary for Political Affairs of MCP Aford Alliance respectively - an association who objects are political in nature and that they entered Parliament through MCP tickets, are political in nature and that they entered Parliament through 10. THAT I understand and verily believe that no injunction can be issued against government and it was wrong for the applicants to obtain an injunction against the government.” Itis my understanding that. at law, an affidavit must contain only matters of fact - It would be appear to me that both affidavits, in some respects. contain matters of fact mixed with opinic law. Rules of the Supreme Court. 1 have decided not to take issue with these observations because as carlict remarked there is a mixture of matters of fact, law and opinion. It is trusted that members of the bar will better advised to take note of these comments for it is not only in this matter at hand that there has been t mixture. d So much for the background to this application. Let me now proceed to deal with the issuc(s) in this mar Issues For Determination The substantive question that I have to decide is whether or not the order of an interlocutory injunction v this court made on 8th November 2001 should be discharged. Further, I wish to observe that there are sc auxilliary issues that have arisen which will require this court’s determination as well when answering (f main question before me. I propose to deal with the other issues as well. Before proceeding to consider http://www judiciary.mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.htm! 4/5/2003 Mpinganjira, Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament Att... Page 6 of 18 issues let me observe that both Counsel addressed me at length during their viva voce submissions. | It will not, however, be possible to put i acknowledge that I found their arguments lucid and instructive. in writing, in this Ruling, every both Counsel but because I found out that some of the arguments would better be advanced at the substa hearing of the Judicial Review proceedings. Be that it may be it will be inescapable to bear them in min deciding on the issues for determination in this matter. I will now, without delay proceed to consider the questions for determination in this matter. argument advanced by either Counsel. This will not be out of any dis Law and Finding: : Consideration of The Issues The Speaker of the National Assembly as a party to these Proceedings At the commencement of the hearing of this application, on 11th November 2001, this court asked learnc Counsel for both partics to address it on the question of the propricty of having the Speaker as a party. regards the position of the Speaker as a party to proceedings. The court wanted to be addressed on this point in view ol the apparent confusion that has arisen is the main point taken by Mr Chisanga, of Counsel for the Defendants, that the answer to the question It Speaker being a party to proceedings is to be found in The President of Malawi and Speaker of Nation Assembly -vs- R. B. Kachere and Others MSCA Civil Appeal No. 20 of 1995, (unreported)| MSCA] whe on delivering the judgment of the court made the following statements [rom which I quote Mtegha. relevant parts at pag 8 and 9:- s J. AL s proceedings against the Attorney Gener: “---Itappears to me. therefore, that if one wants to sue the President in his official Ldpd(.ll\' as Head of Government, he should commence one’ that the Government can be sued in the civil suits other than contract and tort- should interpret the words “civil suits™ as limited to tort and contract only. There may be other situation example cases of Juc other than those involving contract and tort where the Government can be sued, for Reviews. These are civil in nature. We must interpret the words of an Act in such a way that they convc their ordinary and natural meaning unless there are some inconsistency. In the present case, ‘civil procec means civil proceedings other than criminal proceedings.” proceedings.”™ (emphasis supplied by me) There is no reason why The present proceedings quite clear to 1 are clearly “civil Mr Chisanga also referred to me the statement of Kalaile, J. A.. at page 16 of the judgment in Kachere's ¢ buttress his argument that the Speaker is not a right party to these proceedings. This at page 16:- is what Kalaile Consequently. I hold that the State President or the Speaker can not be sued as a public officer but m: Th sued for anything particularly so since S. 98(1) of the Constitution lays down that there shall be the office of the Attorney General who shall be the principal advisor to the Government.™ they perform in their official capacities through the office of the Attorney General. Mr Kasambara. of learned Counsel for the Plaintiffs, in essence submitted that Kachere's case (supra) is distinguishable from the present case. It is the contention of Mr Kasambara that the present proceedings not a suit but rather they are Judicial Review proceedings. To this end. Mr Kasambara continued to ar Kachere does notapply because in that case the Plaintiffs had commenced a legal suit. against the Government or a public officer ic. the hup://www judiciary.mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html Mpinganjira, Chupa Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament Att... Page 7 ol 18 As a starting point in making a determination on this question let me put it here that I am bound by the d of the Malawi Supreme Court of Appeal on its holding that where one wants to sue the Speaker for anytl does in the performance of his duties then the legal suit must be in the name of the Attorney General. Al same time it must be pointed out that Tam at liberty, if'it is possible. to distinguish the decision in Kache case Party MSCA Civ is my considered view that. if this court comes to Appeal No. 32 of 1997 |unu|m1ud| In this regard. it conclusion llml the matter before it 11 this ¢ on the other hand. finds that the case before it assistance to the Defendants (the Respondents). {rom the one before me (I'red Nscula -vs- Attorney General and Malawi Congress a legal suit them surely Kachere's case, supra, will apply. is not a legal suit the case of Kachere will not be of any is Itis my finding that the present case is distinguishable from the case of The President and Speaker of Na Assembly -vs- R. B. Kachere and Others (supra) because in the instant case there is no suit against the Sy as was the case in the matter that was being dealt with by the Malawi Supreme Court of Appeal in the Ki case. Further, it would appear to me that the Malawi Supreme Court o' Appeal had no full legal argume from Counsel on the question of whether Judicial Review proceedings are legal suits and therefore caug! the provisions of Civil Procedure (Suits by or Against Government or Public Officers)Act (Cap. 6:01). As Tunderstand it a civil proceeding would be a suit. and therefore caught by the provisions of Cap. 6:01 proceedings are adversarial and the outcome would coercively affect the legal position of the Governmer Judicial Review proceedings. although civil in nature, principally will not, and do not. Further, it must be appreciated that Cap coercively alfect the legal position of the State or Government. of the Laws of Malawi was enacted with a view to enabling private individuals to sue government or pul office . a thing which was not possible prior to the enactment of the said Cap. 6:01 of the Laws of Mala it wa sumed then that a government could do no wrong. This assumption is not in keeping with mode legal thinking. Indeed. it is the view of this court that Cap. 6:01 of the Laws of Malawi is intended to co where ¢ private law proceedings and not Judicial Review proceedings which. in essence. person‘seeks to protect his right under public law or in public law proceedings. as an outcome are proceedings i Another issue which it would appear was not fully canvassed, by Counsel, before the Malawi Supreme € of Appeal. in the Kachere case, is the effect of a prayer for a declaration in civil proceedings in so far as parties to proceedings are concerned. I have visited some case authorities in the Commonwealth which ¢ instructive on this point. These cases show that where there is a prayer for a declaration the complexion parties to civil proceedings changes. In a case from Kiribati. a Commonwealth country like Malawi. viz Speaker -vs- Attorney General (1988) LRC1 Maxwell, C. J.. at page 7b-[; singled out general principles grant a declaration. 1 adopt these the courts have evolved to guide them in exercising their discretion to principles and one of them, which is relevant to this case. was expressed as follows (a)--- (b) [that| the court will not make a declaratory judgment. unless all the partics interested are before it a competent Defendant (Respondent) is before the court, as in this case, the court will decline to make a declaration affecting the interests of persons who are not before 11 In Myer Queenstown Garden Plaza | -vs- Port Adelaide Corporation [1975] 175 ABR 504, an Australian case, a declaration challenging the v of regulations on the ground. inter alia, that a ministerial certificate of consent was improperly given, wa not challengeable in a proceeding to which the minister was not a party--- « (c) =" (emphas s supplied by me) I'he above mentioned principle was noted with approval in Zambia, another Commonwealth country. in http://www judiciary.mw/civil/Mpinganji a_Chupa_Naura_Speaker_ Attorny.html 4/5/2005 Mpinganjira, Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament Att... Page 8 of 18 case of Mwamba -vs- The Attorney General of Zambia (1993)3 LRC 166 at 173 where Ngulube, C. J. ha to say which is also illuminating:- “No court of Justice can be called upon to make a declaration. which is always a discretionary remedy. v obvious injustice would be visited upon persons who have not been heard but who would be direetly afte by a declaratory order in proceedings to which they have not been made parties---" is his decision that is in issue in the Judicial Review proceedings is to be observed that in the substantive review proceedings the Applicants are sccki In the instant case it will be secking. inter alia, three separate declarations in respect of the decision of the Speaker of the Nat Assembly. The Speaker, in my view, will be directly affected in the event the Applicants are successlul. it will not make sense, and indeed it will be against settled punuplus of law, to have the Speaker struck « party to these Pl\)LLLleQb when it commenced by the Applicant. As a matter of law the court that will deal with the substantive applicatior Judicial Review would not make any declaratory orders if the Speaker is not made a party to these Judic Review proceedings in the light of the fact that there are declaratory orders that arc being sought in conn I understand it, under Order 53 of the Rules of the Supreme Court, the pe with his decision. Moreover. whose decision is being impugned must be a Respondent in Judicial Review proceedings. Even though Attorney General is a competent Defendant. and would have been the right person to be sued under Cap. if this matter were a suit. the Speaker should still be a party to these proceedings since the Applicants we in the Judicial Review proceedings which this co inter alia. declaratory orders, in respect of the Speaker, the inclusion of the Speaker as a party in this allowed the Applicants to commence. In the premises application. which is essentially brought under Judicial Review inspite of the T ought to pause here to add a word so as to avoid confusion not offend the decision in Kachere's case. to these Judicial Review proceedings it does not mean th saving that the Speaker should be made a party can be sued directly for anything he does in the performance of his duties if the matter before the court is legal suit or an action. title of these proceedings. ¢ as Can an injunction be granted against the Speaker and the Attorney General in these Proceedings? is the contention of learned Counsel for the Applicants that since this application has been made insor It Judicial Review proceedings an order of injunction can be issued against the Speaker and the Attorney General. Mr Kasambara further contends that in view of the decisions in the cases of Kachere and Nscu (supra). to the effeet that the office of Spcakcr is not a public office, it therefore follows that he can not t from the provisions of Section 10 of the Civil Procedure (suits by or Against Government or Public offic Act which is intended to protect the Government and Public officers. Kasambara that the injunction in this case was not against Government because the prime mover of thesc proceedings. which are Judicial Review proceedings. is the State itsell against the Speaker and the Atton General ex parte (done for, on behalf of) the seven Applicants. Mr Kasambara continued to submit that Judicial Review proceedings are not suits, which this court has found not to be, therefore the stipulations Section 10 of the Civil Procedure (suits by or Against Government or Public Officers)Act are not applic: Judicial Review proceedings. [ was referred to the South African decision of Ndamase and Others -vs- Minister of Local Government and Land Tenure [1995](3) S. A. 235 in respect of this latter submission regarding the applicability, or otherwise, of Section 10 of the said Civil Procedure (suits by or Ag inst Government or Public Officers)Act to Judicial Review proceedings. Pausing here, let me obscrve that | the case of Ndamise (bl\pld) to be so informative on the need to differentiate between review proceeding actions or suits when one is construing a provision that has the effect of hindering the ordinary rights of: is seeking the assistance of the court. At pages 237 F-G and 238 A-I, white J. hac aggrieved person who to say which is very instructive:- ]t is the further contention of Mr http://www judiciary.mw/civil/Mpinganjira_Chupa_Naura_Speaker _Attorny.html 4/5/2005 Mpinganjira, Chupa,Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament AtL.. Page 9 ol “The first principle of construction to be applied is that the Section hampers the ordinary rights of an agg person to seek the assistance of courts and must therefore be restrictively construed and not extended beyond its expressed limits - Administrators. Transvaal. and others Traub and Others 1989 731 (A) at 764L. The ordinary grammatical meaning of the word ‘claim’ - “(a) demand for something as due: an assertion nee in inter right to something’, The Shorter Oxford English Dictionary - is so wide as to be of no So. too, is the meaning of the word in this ol no assistance in this case as those interpretations have been ‘proceedings” in numerous decided on the context in which the word has been used in particular Sections of other statutes - sce. for instance Pennington Health Committee 1980 (4) SA 243 (N). the interpretation of the words “claim’ “action” or tion. to the legislator’s intention when en section. The “claim against the Government” must arise from ‘any contract’ or “out of any wrong Reference to the Section as a whole, however, brings greater clarity the committed by any servant of the Government---" Review proceedings are clearly notincluded under the is extremely doubtful whether they fall under or are included in the latter. Any doubt wh category and it review proceedings are included in the phrase “claim against the Government. is, in my opinion. finally Lll%])t.“t(l by the wording of SS(4). which provides that ‘no execution, attachment or like process shall be issued---" These words clearly indicate that the legislator intended that the “claim” should be for somethi which can be the subject of a warrant of execution, attachment or similar process. The word “claim’. rca SS(4). in my opinion indicates that the legislature intended that the section apply only to proceedings in the Government may be called upon to commit an overt act, be it the payment of money or something ¢l something. which will result in the issuing ol a warrant of exccution. attachment. or 10 desist [rom doing . but not o review proceedings in which no warrants are issued and a court simply confirms or es quasi-judicial decisions of the Government, or its officials. As was stated in Hira and Another on and Another 1992 (4) SA 69 (A) at 93 -4, the function and purpose of review is to correct erron decision-making. In that Support for the above finding is found in Kampton Park Bombay (Pty) Ltd -vs- Campton Park Municipa case the applicant brought on review the refusal of an application for a trad 1956 (1) SA 643 (). h licence by the municipality. been given a month’s notice of the intended proceedings in terms of' S. 172(2) of the Local Government ordinance 17 of 1939 (1), which requires that 30 days’ prior notice must be given of any “action” against local authority. The court held, at 648B, that an ‘action” does not included review proceedings. and disn the point in limine on those grounds. The latter took the point in limine that the application must fail because it The above quoted pronouncement o’ White, J. in my considered judgment, confirms what I said carlicr ¢ Judicial Review proceedings are not legal suits and are therefore not caught by the provisions of the Civi Procedure (suits by or Against Government or Public Officers)Act. Moreover, it will be noted that the ¢ Ndamise’s case (supra) was construing a statutory provision similar to our Cap. 6:01 of the Laws of Mal see no reason why I should not adopt it in construing the meaning of the words suit or claim used in our 6:01 of the Laws ol Malawi. Turning to the arguments of learned Counsel for the Applicants, it cases of Dr. Hastings Kamuzu Banda -vs- The Attorney General C. C. No. 1839 of 1997, (unreported) ( Court) and Von Knips -vs- The Attorney General MISC Civil Cause No. 11 of 1998 (unreported) (High in which orders of injunction were granted against the Attorney General. 1 was also referred to the local o' Mhango -vs- The Attorney General and Others C. C. No. 338 of 1998 (unreported)(High Court) and 1D is observed that he cited to me the loc htp:/Awww judiciary. mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html 4/5/2005 Mpinganjira, Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament ... Page 10 ol 18 The Minister of Local Government and The Attorney General (unreported) Alufandika and Another -vs- Court Civil Cause No. 134 of 1995 where this court refused to grant an order of injunction against a Government Minister and the Attorney General. I shall comment upon these cases later in this Ruling suffice. for the moment. to put it here that the four cases cited above show that this court has two views In the regarding the question whether an injunction can issue against the Government or public officers. meantime let me continue with the submissions of Mr Kasambara. 1t was the further argument of Mr Kasambara that Review proceedings. The following cases were cited to this court in support of this areument:- in England a provision similar to our Section 10 has been held not to be applicable to Ju 1. Reg. -vs- Kensington and Chelsea Royal London Borugh Council ex.p. Hammell[1989]Q13 518: [198¢ AllLER. 1202, 2. Reg. -vs- Sceretary of State of the Home Department ex-parte Herbage [1987]QB 872 [1986]3 All ER CInRe M (M. -vs- Home Office) [1993]3 WLR 433: [1993]3 All L. R. 377 (Housc of Lords). w 4. Reg. -vs- Secretary of State For Transport ex-parte Factorfame Ltd [1990]3 W. L. R. 818. Of the four cases cited I found the case of In re M {M -vs- Home Office} (supra) very instructive and i enlightening on the question of whether an order of injunction can be made against the Government or servants. | will come back to this case later in this ruling but it will suffice to put here that the House of was interpreting a statutory provision similar to our Section 10 of the Civil procedure (suits by or Again: Government or Public Officers)Act. The case is for the proposition that there is a difference between pri law proceedings and public law litigation; and that in Judicial Review proceedings, like in the instant cas injunction order would be made against Government (Ministers) and its servants (Government Servants) mentioned carlier. in the case of In Re M (supra) the House of Lords of the Laws of Malawi was interpre among others, a provision that is similar to our Section 10 of Cap. 6:01 of the Laws of Malawi. Now. pt Alfred Waters to the holding. by the Malawi Supreme Court of Appeal, in Commercial Union (Ple) -vs- MSCA Civil Appeal No. 46 ol 1995 [unreported]. infra. [ will be adopting the reasoning In Re M's case interpretation of our said Section 10 of Cap. 6:01 of the Laws of Malawi. At this juncture let me now pr Lo consider the arcuments that have been advanced on behall of the Speaker and the Attorney regarding the propriety or otherwise of granting an order of injunction against the Government or Public officers. General Mr Chisanga. learned Counsel for the Respondents, has submitted that Section 10 of the Civil Procedure by or Against Government or Public Officers)Act entreats the courts not to grant injunctions against the Government. Itis his further contention that if this court upholds the interim order of injunction herein t that would infringe the provisions of the said Section 10 and it will further mean that basically this court has furt made a determination on the substantive issue in the Judicial Review proceedings. Mr Chisanga contended that this court should discharge this injunction by taking the approach of this court in the case D. R. D. Alufandika and Another -vs- Minister of Local Government and The Attorney General (ante) anc Mhango and Others -vs- The Attorney General, Inspector General and Lilongwe City Assembly (supra). was also the argument of Mr Chisanga that should this court lift the interim order of injunction herein the Applicants should not be allowed to go back to Parliament until the Judicial Review proceedings are determined. Learned Counsel for the Respondents also took issue with the provisions ol O. 53 1.3 (10) ¢ Rules of the Supreme Court and the cases cited thereunder which are for the proposition that in Judicia! Review proceedings an injunction can be granted against the the Government (crown) and its Chisanga’s contention that Order 53 r. therefore all the cases that are cited under this order are not applicable to Malawi. 3 (10) of the said Rules of the Supreme Court is not part of our la The reasons advanced servants. | http://www judiciary. mw/civil/Mpinganjira_Chupa_Naura_Speaker Attorny.html 4/5/2005 Mpinganjira, Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament ... ~Page 11 of 18 In this interprated is not a statute of general application and/or that the statute was passed well afic regard Scetion 29(b) of the Courts Act was referred to this court. On first impression Mr this argument are that the statutory law on which the decisions were made are not part ol our law since statute being 1902. Chisanga’s argument would appear to be correct if one reads the said Section 29 (b) of the Courts Act w reference to any case authority. But when one refers to the statement of Mtegha J. A. in the case of Comr Union Assurance (Ple) -vs- Alfred Waters MSCA Civil Appeal No. 46 of 1995 [unreported [(MSCA) it becomes clear that the courts in Malawi. this court inclusive. are entitled and allowed. when construing « legislation. to look at the construction of similar provisions in foreign jurisdiction. and il the reasoning i respectful v correct. there would be no reason why a court should dupm't from that construction. It therefore. that if the ca referred to under Order 53 rule 3 (10) are construing a provision similar to our Sulmn 10 of the Civil Procedure (Suits by or Against Government or Public Officers)Act. and if the rea is my correct, this court n h( [all for that interpretation. It is now nece ary that I should move on to consider the question that has been raised above viz whethe s erroncously made. The answer order of interim injunction that was granted against the Respondents w this question, in my considered view. hinges on the interpretation of Section 10 of the Civil Procedure (& by or Against Government or Public Officers)Act (Cap. 6:01) of the Laws of Malawi which has fcaturcd highly in the submissions of both Counsel for the Applicants and Respondents. The relevant parts of the Section 10 of (Cap. 6:01) of the Laws of Malawi provides as follows:- “(1) Nothing in this Act contained shall be construed as authorising the grant of relief by way of injuncti against the Government. but in licu thereof the court may make an order declaratory of the rights of the (2) The court shall not in any suit grant any injunction or make any order against a public officer if the ¢ would be to give anyrelief against the Governmient which could not have been obtained in a suit against Government.”™ As earlier found, this statute is not intended to regulate Judicial Review proceedings. That is the reason one need not give notice to the Attorney General or a Public officer in terms of Sections 4 and 5 of the st Cap. 6:01 of the Laws of Malawi before commencing Judicial Review proceedings - Ndamise’s case (su If the courts were to insist on the need to giving notice in Judicial Review proceedings then that would d the whole purpose of protecting people’s rights and freedoms. enshrined in our constitution. if' those righ freedoms are threatened. This court does not accept that Cap. 6:01 of the Laws of Malawi. passed on 2 intended to cover Judicial Review proceedings which are a new phenomenon. Inm December 1946 was judgment, and as already found, the expression “suit™ or “claim™ which features highly in this statute exc what are now called applications for Judicial Review. But even if it be accepted that the Plaintiff’s appli falls within the expression “suit™ or “claim?, as shall be seen later, it must be recognised that the constitu ri has given power to the courts to give an effective remedy where there is a complaint that a been infringed or is being threatened. This power. in my most considered opinion. includes interim remedy of injunction pending the hearing of a substantive application. A court charged under Uu constitution with securing an cffective remedy, albeit a temporary one, can not be denied such power as job of this court, at this juncture, is to determine whether o necessary for the task it has in its hands. The there is need to preserve the status quo ante pending the determination of the substantive Judicial Reviev proceedings where the decision of the Speaker will be reviewed. I will come back to this observation lat to Section 10 of Cap. 6:01 and make my observations regarding thi this Ruling. For now let me go back Section and the question that it raises. Ttis the judgment of this court that this provision raises the i c regarding the power, or the duty. of the hutp://www judiciary. mw/civil/Mpinganjira_Chupa_Naura_Speaker Attorny.html 4/5/2005 Mpinganjira, Chupa,Naura, Makhumula, Chakuamba. Ntaba Vs Spcaker of Pariament ... Pa ¢ 12 of 1§ to grant an effective remedy against the State for violations or the purported violations of the rights or freedoms. or both, of an individual which are protected by the constitution, where such rights or freedon infringed or threatened. to unde why I make this observation. In Section 41(3) of the Constitution of the Republic of Malawi it is provid: follows:- is pertinent to visit some constitutional provisions so as In this regard it svery person shall have the right to an effective remedy by a court of law or tribunal for acts violating 1 rights and freedoms granted to him by this constitution or any other law.” And Subscction(2) of Section 46 of the said Constitution of the Republic of Malawi stipulates that:- “Any person who claims that a fundamental ri or threatened shall be entitled - oht or freedom guaranteed by this constitution has been in (a) to make (an) application to a competent court to enforce or protect such right and freedom: and Further. the relevant parts of Section 46(3) of the said Constitution of the Republic of Malawi provides ( “Where a court referred to in Subsection(2)(a) finds that rights or freedoms conferred by this constitutior been unlawfully denied or violated, it shall have power to make any orders that are necessary and approy to sccure the enjoyment of these rights and freedoms and where a court finds that a threat exists o such 1 or freedoms. it shall have power to make any orders necessary and appropriate to prevent those rights an freedoms. [rom being unlaw(ully denied or violated---" It will be seen that the above mentioned Sections demonstrate that if’ Section 10 of the Civil Procedure (¢ by or Against Government or Public Officers)Act is taken literally then the courts would be rendered im in so faras what the Constitution of the Republic of Malawi enjoins them to do where there is a complai rights or freedoms of an individual have been infringed or threatened. Indeed. Cap. 6:01 of the Laws of Malawi which was promulgated before the current Constitution of the Republic of Malawi. in particula provisions in Sections 41(3). 46(2) and 46(3) cited above, should not and/or can not stop this court from an eflective. and appropriate, remedy if that effective remedy would mean making an injunctive order (o the Applicant’s rights and freedoms which they claim have been infringed. If the ¢ff purpose of securing surely this court will so ord remedy which is found necessary and appropriate is an injunction order then notwithstanding the provisions of Section 10 of the Civil Procedure (Suits by or Against Government or Officers)Act. That would be the case if'it is assumed that this Act is intended to cover Judicial Review proceedings as well. fact. Judicial Review proceedings are not legal suits or claims and are thercfore not caught by 6:01 of the Laws of Malawi. But as will be recalled this court has formed the opinion. and has found as a t! the provisions o Moreover, the provisions of Section 46(2) and (3), as read with Section 108(1), of the Constitution of M: confer unlimited Jurisdiction on this court to fashion remedics to secure the enjoyment of the fundament rights and freedoms. provided for in the Constitution of Malawi, and to grant protection against the contravention of those ri shts and [reedoms and other provisions of’ the Constitution. For this reason an Act of Parliament, in particular Scction 10 of Cap. 6:01. can not ove the provisions of the Constitution and stop the court from giving an effective remedy, albeit a temporary http://www judiciary.mw/civil/Mpinganjira_Chupa_Naura Speaker Attorny.html Mpinganjira, Chupa. Naura, Makhumula. Chakuamba. Ntaba Vs Speaker of Pariament ... Page 13 of 18 In the premises. like the interim injunction that is being prayed for in this matter. In point of fact Section 5 of the Constit of Malawi provides. inter alia. that any law that is inconsistent with the provisions of the Republic of M Constitution shall. to the extent of such inconsistency. be invalid. in so far as Scction 1( Cap. 6:01 purports to be inconsistent with the provisions of the of the Republic of Malawi Constitution. - calls upon this court 1o give an effective remedy, then same may. in an appropriate application, r 2hitly b declared invalid (Nelson Jasi -vs- The Republic Crim. Appeal No. 64 of 1997 [unreported|(HC). Furthe may be allowed to put it here. the famed immunities of the Government or Public Officers should not be allowed to constrain the power of the courts to grant an effective temporary relief until the hearing of the substantive application for Judicial Review. By the provisions of Chapter 1 and Sections 4 and 5 of thei Constitution the people of Malawi established a new Constitutional order. The Constitution has supremsz (subject to its provisions) over all law which. so far as they are not inconsistent with its provisions. must to it. Thus to read down the provisions of the constitution so that they accord with the provisions ol Cap of the Laws of Malawi or historic principles or rules will amount to subverting the purpose of the Repub Malawi Constitution. Historic common law doctrines, adopted and codified in Cap. 6:01 of the Laws of Malawi, restricting the liability of Government or its public officers, as regards the av ailability of injunct should not be allowed to stand in the way of effective protection of fundamental rights and freedoms guaranteed by 10 of Cap. 6:01 today. law. one must yield to the Constitution. This court, although respecting its previous decisions in the Alufandika and Mhango’s case (supra), where it was held that an injunction can not be issucd against the Government, cannot regard those previous decisions as representing an accurate statement of the moderr constitutional law principles applicable in Malawi in so far as the said Section 10 of Cap. 6:01 of Laws ¢ Malawi. and the temporary. to secure the enjoyment of rights and freedoms where a court finds that a threat exists to sucl or freedoms. Further, 1 wish to note that as I understand it Section 10 of Cap. 6:01 of the Laws of Malav effect saying that you can not obtain an injunction (injuctive relict) against Government or Public Oftic in those situations where prior to the enactment of Cap. 6:01 no injunctive relief would be obtained agaii government. Judicial Review proceedings came after Cap. 6:01 was enacted and therefore, in my opinio restriction as to the grant of injunctions does not apply. It must also be appreciated, as said carlier, that ( 0:01 of the Laws of Malawi was passed by the legislature with a view to enabling individuals to sue Government or Public Officers which was not possible prior to the enactment of Cap. 6:01 of the Laws ¢ Malawi for it was assumed then that a Government could do no w rong. This assumption is dead and bur the grave. the said Republic of Malawi Constitution. To this end in interpreting the provisions of S¢ as read with the Republic of Malawi Constitution. the traditional rules of the com said previous decisions, want to limit the power of the court to make an order, albeit Thus where, as stated above. a question regarding the rights and freedoms of individuals has arisen and | be decided in a substantive application, the court can grant an interim injunctive relief il that would be 1l way of preserving the status quo ante of the Applicants who are alleging that their rights and freedoms h: been threatened. until the trial of the issues in the substantive Judicial Review proceedings. It is clear fic record of these proceedings that the Applicants shall be relying on the provisions of the Republic of Mal Constitution. and will be arguing that their Constitutional Rights have been infringed or threatened. at th hearing of the substantive application for Judicial Review. It will therefore not be fair and justto hold (- they are bound by the provisions of Section 10 of Cap. 6:01 of the Laws of Malawi for to hold so will an Lo saying that they can not get a temporary effective remedy whilst awaiting the outcome of those proceedings. This court has, and must be ready to excrcise, power to grant an effective interim relief wh is being alleged that there has been a contravention of a protected Constitutional Right or freecdom. Whi could be said that in private law litigation an injunction can not be issued against the Government, [ am to accept the argument that an injunction can not be issued, against the Government or its servants or any person performing public functions or quasi-judicial functions, in Judicial Review procecdings. Asame fact in Judicial Review proceedings the one applying for the injunction is the State itself. on behalf of the parte Applicants. against the Respondents. In this matter the Respondents are not even public officers (M http:/www judiciary.mw/civil/Mpinganj ira_Chupa_Naura_Speaker_Attorny.html 4/5/2005 Mpinganjira, Chupa,Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament ... Page 14 o' and Kachere cases) so the said Section 10 of Cap. 6:01 does not apply. Having concluded that in Judicial Review proceedings a court can, by an order, grant an injunction or an injunctive relief, it must surcly ha power to grant an interim (interlocutory) injunction and the principles governing the grant or refusal o1 discharge of interlocutory injunction may be granted. T will now proceed to deal with the principles upon whic an injunction must. or will. apply. Interlocutory injunction: principles on which they are granted. it In litigation, be it private or public. where (the Plaintiff) an Applicant seeks a permanent injunction Defendant) a Respondent, this court has a discretion to grant (the Plaintiff) the Applicant an interlocutor: injunction - a temporary restriction pending the determination of the dispute at the substantive trial) - wh designed to protect the position of the Applicant (Plaintiff) in the interim. In that event the Applicant wi normally be required to give an undertaking to pay damages to the Respondent should the latter succeed trial. I'he principles on which such injunctions will be granted - to which reference was made in these proceec and are trite knowledge - were set out in American Cynamid Co -vs- Ethicon Ltd [1975] A. C.396: [ 1972 E. R. 504 (Housce of Lords) and a synopsis of these principles is as follow: (a) The Applicant must establish that he has a good arguable claim to the right he seeks to protect. is not for the court, at the interlocutory stage, to seek to determine disputed issues of fact on the afl (b) It before it or to decide difficult questions of law which call for detailed argument and mature consideration; it a serious question to be tried at the substantive trial. is enough il the Applicant shows that t (¢) Unless the material before the court, at the interlocutory stage, fails to disclose that there is a serious question to be tried. the court should consider, in the light of the particular circumstances of the case, wh the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (d) If damages would be an adequate remedy for the Applicant, il he were to succeed at trial. no interloc injunction should normally be granted. If, on the other hand, damages would not provide an adequate re for the Applicant but would adequately compensate the Respondent under the Applicant’s undertaking. i Respondent were to succeed at the trial. there would be no reason to refuse an interlocutory injunction o eround. is where there is doubt as to the adequacy of the respective remedies in damages available to cither (¢) It or both that the question of balance of convenience arises. (f) Where other factors appear evenly balanced, it is a counsel of prudence to take such measur caleulated to preserve the status quo ante. Now turning to the instant case, having heard the arguments of Counsel. and due regard being had to the that the leave to apply for Judicial Review was granted to the Applicants, and has neither been discharge is my view that ! is there an intimation that the Respondents intend to apply for discharge of the lcave, it Applicants had and still have, an arguable case in respect of their In pc is the opinion of this court that there are a triable issues to be considered by the court at the hearin fact it rights which they seek to protect. http://www judiciary.mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html 4/5/2005 Mpinganjira, Chupa,Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament ... - Page 15 ol 18 the substantive application for Judicial Review. Some of the said issues. inter alia, as scen {rom the reco these proceeds. are:- (1) Whether or not the Applicants have crossed the floor in terms of Section 65 of the Republic of Malay Constitution. (2) Whether or not the Applicants were given an opportunity to be heard before the decision to declare (1 seats vacant was made. (3) Whether or not the decision of the Speaker is unconstitutional. In the light of the observations which have been made above the ordinary principles enumerated in the American Cynamid case have to apply to the instant case. 1 have carefully looked at the reliefs that will be sought by the Applicants at the hearing of the subs application for Judicial Review. The view that this court takes their application. would not be an effective remedy. Indeed. it should be noted that the Applicants will seeking. inter alia. declaratory orders. The orders they want can not be quantificd in monetory terms thu damages would not be an effective remedy in the event of their suceess at the substantive trial. Since dar would be an ineffective remedy for the Applicants. and ntiv is that damages, i’ the Applicants succec would be no compensation to them, if they succeed at trial, then it has to be determined where the balanc convenience. or what others have called balance of justice, lies. fa of co venience has fallen in Itis the view of this court that. upon weighing all the factors. the balance ol an interim injunction and its continuation. The factors in la\’mu “of an interim injunction and the continuation thereof are: Firstly. the injunction, and indeed these proceedings. are only interlocutory and designed to hold the ring until the hearing of the substantive application for Judicial Review. Its continu contrary to what the Respondents were contending, does not prejudge the decision to be made at the hea the substantive application for Judicial Review on the reliefs sought and indeed on the relief for a final injunction. Secondly. to discharge the injunction would mean that the courts are powerless to preserve status quo whilst awaiting the outcome of the Judicial Review proceedings. The status quo that this cour should be looking dl is the status quo which had been in place prior to the decision of the Speaker on 6th Judic November 2001, If this Review pmuulmnx might be rendered nugatory or useless in the event the Applicants succeed in their application for Judicial Review. Indeed, to refuse to grant an interim injunction, or to discontinue the int injunction that was granted herein, would be like this court is giving the Applicants something with one (leave to apply for Judicial Review) and then immediately thereafter taking it with the other hand. In the of the leave to apply for Judicial Review, granted to the Applicants, it will not make a lot of sensc to refit erantan interim injunction or to discontinue the interim injunction herein. That will in essenee mean tf impugned decision will stand and may very well be effected whilst the parties are awaiting a determinati the substantive Judicial Review proceedings. A refusal to grant an interim injunction. or a decision to discharge this injunction, might completely destroy the Applicant’s arguable case, at this interlocutory st without their having had the opportunity of having it tried on evidence. I make this remark in view of th observation by this court that the Applicant’s case merit Review. Further, it is the view of this court that interim injunction were not to be granted. and maintained. the forthcomi nting of an interim injunction, and/or continuing the interim injunction. until the substantive h the Applicants failed. will merely delay but not prevent the Speaker to effect his decision to declare the http://Awww judiciary. mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html 4/5, S \ '\Ipm sanjira. Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament ... Page 160018 In overall interests of justice. a course which would only result in temporary. vacant. ase or the Attorney General's case should be preferred to one whi irrevocable. damage to the Speaker’s might result in permanent irrevocable damage to the purported freedoms or rights off the Applicants. A discharge of the interim injunction of 8th November 2001 and/or refusal of an interim injunction would « j might prematurely and permanently deny the Applicants any protection from the courts thus a denial of' which these courts are constitutionally mandated to dispense. and in no way Indeed. a refusal or discharge ol this temporary injunctive relief might. if they succeed at the substantive hearing. cause irreparable harm and effectively deprive the Applicants their rights and/or freedoms whic are seeking to protect in the forthcoming application for Judicial Review. Was there non-disclosure of a material fact which would entitle this court to dis Order of $th November 20017 harge the Interim Injunc Mr Chisanga. learned Counsel for the Respondents. submitted that the Applicants did not disclose to this at the hearing of the ex parte application for an interlocutory injunction. that letters of complaint against is learned Counsel’s argument, in this regard, that t had been circulated to all Members of Parliament. It Applicants xu])plts\gd facts which would have, if disclosed, swayed this court at the time it made its dec to make an interim order of injunction. Mr Chisanga continued to argue that they are taking this as a ver crucial point because the Applicants are arguing that they were not heard. Pausing here let me observe ! I will not make any comment on thesc court has had the occasion to see and read the letters in question. | believe that any remarks on these letters should be Ieft to the court that will be scised with the letters. substantive application for Judicial Review. Turning again to the submissions of learned Counsel for the Respondents. on this question of non-disclosure, it was further argued by him that this court should excre discretion and discharge the interim injunction. On his part Mr Kasambara contended that what is being alleged as not having been disclosed is notama There were also some arguments which he advanced which this court thinks should be better reser fact. the court that will deal with the substantive application for Judicial Review consideration by Itis trite law. and I need not cite an authority for it. that a court can discharge an injunction obtained ex- there was non-disclosure of a material fact when the ex-parte application was made. As [ understand it position at law is that the failure to disclose a material fact must be deliberate if the injunction obtained ¢ parte is to be discharged. Actually. this court takes the view that. on balance. the non-disclosurc. or the 1 exhibiting of the letter in the affidavit of Mr Viva Nyimba, just like by Hon. Mr P. J. Maulidi. was not Maulidi to show that Mr Viva Nyiml deliberate. For sure there is nothing in the affidavit of Hon. Mr P. J. deliberately withheld this information from the court. Further, it an ¢ settled law that an Applicant for interim injunction must proceed with the highest good faith and make a full and frank disclosure of all w facts. including those against his application. But it must be noted that materiality of non-disclosure or t point at which it should have been disclosed is decided by the court and the test is whether the court shou in the weighing scale. Thus, even il this court were to find that there was material no have those matters then this very same court would be disclosure and discharged the interim injunction herein on that basis. perfeetly entitled to listen to the arguments again, inter partes, in which case it will have to consider the « affidavit evidence. with the contents of the letters in mind and. more probable than not, come to the same conclusion in view of the observations that I have made regarding the propriety and logic ol this court gi the Applicants something with one hand and taking it with the other hand at the same time. the fact that this court has now read the contents of the letters T do not think that my judgment will chang Morcover, I wish to observe that even assumit hat there was such non=disclosure this court has disen FFurther. in is http://www judiciary.mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html 4/5/2005 Mpinganjira. Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament ... - Page 17 0 18 maintain the interim injunction (or make a new order if the ex-parte interim injunction, has expired) whe court is satislicd that no injustice has been caused to a Respondent. An instructive dictum on this point ¢ found in the case of Brink’s Mat Limited -vs- Elcome and Others [1988]1 W. L. R. 1350 at 1357 E-17 whe Ralph Gibson L. J. has this to say: ~Finally. it is not every omission that the injunction will be automatically discharged. A locus. poenit "1 Lord Denning M. R. in Bank Meliat - may some times be afforded per court has discretion. notwithstanding proof of material non-disclosure which justifies or requires the imn discharge of the ex-parte order, nevertheless continue the order. or to make a new order on terms: Nikpour [1985]1*.5. R. 87.90. “When the whole of the facts. including that of the original non-disclosure, are before [the court, it] may grant --- a second injunction if the original non disclosure was innocent and if an injunction could prope granted even had the facts been disclosed” - per Ghdewell L. in Lloyds Bowmaker Ltd -vs- Britania Ar Holdings Ple.. ante. pp 134311 - 1344A7 from this statement, that the withholding of information is, therefore, not sufficient It comes out clearly, ground of itself for setting aside an order of interlocutory injunction made ex-parte. Much depends on th circumstances. and the effect on the fairness in the proceedings, of the withholding of the information. / Stuart- Guilby in Ex-parte Salinger[1993]2 All E. R. 310 at 320 recognised, the withheld information ma is not disclosed will not, without more, cause the injunction to be discharg be decisive. but the fact that it [ would therefore have exercised my diseretion in favour of continuing with the injunction for I do not sc this caused to the Respondents. Indeed. there is no material before me to show that the order of injustice 8th November 2001 has caused. or caused any, injustice on the part of the Respondents in view of the of that the said order was for a limited period and the Respondents were allowed to present their case at the partes hearing of application for an interlocutory injunction. Order | therefore hold. on the facts before me and for the reasons that I have given above. that the interim order injunction granted herein on the 8th of November 2001 is to continue until the hearing of the substantive application for Judicial Review or until a further order is made. granted leave to the Applicants to apply for Judicial Review but it did not make any order ast This court the parties were to proceed alter the grant of leave viz in respeet of the mode of applying for Judicial Re timetable for service and the period within which the substantive application must be entered for hearing Actually. in the Notice of Application for Judicial Review, the Applicants wanted to have an expedited | and that the other time limits should be abridged. There was no order made on cither this abridgement time limits or the expeditious hearing of the Application. The parties might wish to apply for the necess: orders, or agree on the way forward. in view of what Counsel for both parties said, during submissions concerning the importance of this matter. Both parties will be at liberty to apply for the necessary orders this regard. The costs of. and occasion by. this application shall be costs in the cause. Made in Chambers this 27th day of November 2001 at the Principal Registry. Blantyre. http://www judiciary.mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html Mpinganjira, Chupa. Naura, Makhumula, Chakuamba, Ntaba Vs Speaker of Pariament ... Page 18 of 18 Kapanda F JUDGE http:/wwaw judiciary. mw/civil/Mpinganjira_Chupa_Naura_Speaker_Attorny.html 4/5/2005