Inspector General of Police and Attorney General v A.J (a minor) and Ex parte Standford Siliro Shaba on behalf of T.S (a minor) (Misc. Civil Appeal 5 of 2022) [2022] MWSC 6 (2 December 2022)

REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL FOR MALAWI SITTING AT BLANTYRE MISCELLANEOUS CIVIL APPEAL NO. 5 OF 2022 (Being Constitutional Case Number 4 and 5 of 2022 of the High Court Prineipal Registry ) Before Justice of Appeal Kapanda SC BETWEEN: THE STATE and THE INSPECTOR-GENERAL OF POLICE................................................ 1st APPLICANT THE ATTORNEY GENERAL....................................................................2nd APPLICANT and A. J. (A MINOR)............................................................................................ 1st RESPONDENT EX-PARTE STANDFORD SILIRO SHABA ON BEHALF OF T. S. (MINOR)...............................................................2ND RESPONDENT CORAM: THE HON. MR JUSTICE FE KAPANDA SC, JA Masanjala, Bonomali, and Maulidi, Counsel for the Appellants Kilembe, Chijozi. and Kaima, Counsel for the Respondents Ms C Masiyano, Court Clerk Date of Hearing: 15 February 2022, 1 March 2022; 29 March 2022 Date of Ruling: 2 December 2022 ANNOTATIONS Cases cited Malawi The Attorney General v The Malawi Congress Party and Others M. S. C. A. Civil Appeal No. 22 of 1996, The President of Malawi and Another v. Kachere and Others M. S. C. A. Civil Appeal No. 20 of United Democratic Front v. The Attorney General Civil Cause No. 11 of 1994. Civil Liberties Committee Minister of Justice and another MSCA civil Appeal No. 12 of 1999 Chaponda and another v Kajoloweka and another MSCA Civil Appeal No.5 of 2017 Mike Appel and Gatto Limited v Saulos Chilima MSCA Civil Appeal Case No. 20 of 2013 Auction Holdings Limited v Sangwani Judge Hara and Others. MSCA Civil Appeal No. 69 of 2 Monk v Bartram, [1891] 1QB 346 Cocker v Tempest 151 ER 864 (1841) Connelly v Direction of Public Prosecution (1964) A/C 1254 Statutes and Rules Supreme Court of Appeal Act Supreme Court of Appeal Rules Courts (High Court) Civil Procedure) Rules, 2017 RULING Kapanda SC, JA: INTRODUCTION The Applicants obtained an order for stay of proceedings pending appeal. The 2nd Respondent opposes this application on the basis that the Applicants have not shown any circumstances that would tilt the interests of justice in their favour and that no appeal has been lodged on this matter. This is the Applicant's application for an order staying proceedings pending hearing of the an application setting aside order admitting amicus curiae. The Applicants intend to apply for an order setting aside the order of High Court, sitting as a Constitutional Court, admitting amici curiae dated 11 February 2022 on the following grounds: a. That the Attorney General was not given an opportunity to present his views on the application by the amici curiae before the Court admitted them as such, which, if the Attorney General was given an opportunity, would have opposed the admission of the admitted amici curiae; b. That if the Attorney General was heard, he could have argued that the Court has no personal jurisdiction over persons who are domiciled outside Malawi; c. The applications were an abuse of Court process in that they were done by persons with no connection with Malawi yet the matters before the Court are founded on the Constitution which contains the aspirations of the people of Malawi and not strangers; d. Malawi Courts do not have extra territorial jurisdiction; e. That the Court's order admitting the amici curie was irregular as it merely considered the Affidavits and skeleton arguments that were not adopted by counsel; f. There was no proof given that the said amici curiae had authority from their governing institutions/boards to have conduct of this matter; g. The documents filed by the amici curiae do not comply with Order 19 Rule 10 Courts (High Court) (Civil Procedure) Rules 2017. FACTUAL BACKGROUND l or a better appreciation of the issues in contention in this matter, it is necessary' to explore the factual setting giving rise to the application. The facts upon which this application is founded are as stated in the affidavits of the Appellant and the Respondent filed with this application and in opposition to the application. The Court shall refer to the salient facts as and when necessary. Suffice to put it here that the following are common facts in the matter before this Court: lit is commonplace that on 15 December 2021, the High Court sitting in a Constitutional Matter directed the Respondents to file and serve Skeleton Arguments and List of Authorities on the Applicants by 15January, 2022. The Applicants were to file and serve the Respondent Skeleton Arguments and List of Authorities by 30 January, 2022. Further, it is on record that the 2nd Respondent filed the documents on the 14 of January, 2022 and served the Applicant on 18 January- 2022 instead of 15 January 2022 the date ordered by the court. On 10 February, 2022, the Applicants were served with an application by the Centre for Applied Legal Studies to join as amicus curiae in the present proceeding. It is further put in evidence that the application was issued by Centre for Applied Legal Studies and not the registrar as required by our law on civil procedure. The notice indicated that the said application was to be heard on the 15 February 2022 at 9.30 am. It is asserted by the Applicants that they were surprised that, without hearing them and before the appointed date, they were served with an order on admission of Centre for Applied Legal Studies as amicus curiae on 11 February 2022. On 11 February 2022, the Court below admitted the following as amici curiae: Ms. Tloleng Mofokeng, the United Nations Rapporteur on the right to health; The International Women’s Human Right Clinic at Georgetown University Law Center in Washington DC, United States of America; The Centre for Applied Legal Studies al University of the Witwatersrand; The Centre for Reproductive Rights, a United States of America based organization working in Malawi; and Dr. Dalitso Kangaude, a Malawian legal Researcher and scholar on sexual and reproductive rights. It is averred that the office of the Attorney General was not given an opportunity to address the court on the applications by the amici curiae before they were admitted. Further, it is put in evidence that there was no proof given that the said amici curiae had authority from their governing institutions/boards to have conduct of this matter. Further, the Applicants aver that the other three Applicants that have been granted permission to join the present proceeding as amici curiae never served any document on the Defendants and therefore their admission to join the case as amicus curiae is irregular. The Applicants filed a without Notice application for permission to file and serve Skeleton Arguments and list of Authorities out of time on the 14 February 2022 a day before the hearing on the 15 February 2022. Applicants filed an application to set aside the order admitting Amicus Curiae on the 14 February 2022. The Court below- dismissed the Applicants’ application and ordered them to serve the Skeleton Arguments and List of Authorities within 7 days from the date of hearing. It then adjourned all briefs and submissions by Amicus Curiae until 1 March 2022. It has further been put in evidence that the order admitting amicus curiae was made before the Defendants were heard although the applications were made with notice to the Defendants. The above were the averments of the parties as shown in the affidavits filed in support and opposition of the application before this Court. It is observed that the Respondent proceeded to put matters of opinion and law in an affidavit. This Court w'ould like to remind litigants that supporting affidavits must comply writh three “musts” — they must be based on personal knowledge, they must contain facts as would be admissible in evidence, and they must demonstrate the deponent’s competency to testify to the matters stated. And, just as at trial, a factual predicate for the deponent’s testimony is required. As it were, affidavits are written in the first person; that is, you tell your story as if you were narrating it or giving it in a courtroom. They are also generally confined to personal knowledge. An affidavit is not a kind of superior evidence. It is simply a written statement on oath. It has to be factual and free from extraneous matters such as hearsay, legal arguments, objections, prayers, and conclusions . Further, an affidavit should state facts, and facts in this Court’s view, do not include controverted evidence. ISSUES FOR DETERMINATION What are the issues that arise and fall to be decided in the application under consideration by this Court? As this Court understands it, the main question raised by the application is: Whether or not the Court should grant an order staying proceedings pending appeal. Further, there are two (2) ancillary issues for determination before this Court. The parties are desirous of wanting the following ancillary issues determined in the application before this Court viz.: 1 . Whether or not the foreign parties have sufficient interest in the matter warranting them to join as amici curiae; 2 . Whether or not the order admitting amici curiae was regular. This Court will now look at the arguments that have been raised by the parties in response to these questions. It shall start with the appellants’ arguments then move on to deliberate those put forward by the respondents. PARTIES’ POSITIONS The Appellant’s Arguments It is the argument of Counsel for the appellant that, contrary to the submission of the Respondent, pursuant to Section 7 of the Supreme Court of Appeal Act read together with Order 1 rule 18 of the Supreme Court of Appeal Rules, this Court has jurisdiction to grant a stay of the proceedings in the court below pending appeal. As regards the question whether the foreign parties have sufficient interest in the matter warranting them to join as curiae, the Applicants have called in aid the cases of The Attorney General v. The Malawi Congress Party and Others1; Civil Liberties Committee Minister of Justice and another2 ; and The President v. Kachere and Others2 . It is the argument of the Applicants that on the authority of these cases the amici curiae should not have been admitted as 1 M. S. C. A. Civil Appeal No. 22 of 1996 2 MSCA civil Appeal No. 12 of 1999 3 M. S. C. A. Civil Appeal No. 20 of 1995 ~J they do not have substantial interest in the matter. The Applicants contend that the matter to which they are joined as amici curie concerns a law which applies within the territory of Malawi and on the account that they are not based in Malawi and that they will not be affected by the outcome of the matter makes their interest is too remote. On the question whether or not the order admitting the amici curiae was regular, the Applicants contend that, in terms of Order 19 Rule 8 of the Courts (High Court) Civil Procedure) Rules, 2017, although some of applications were inter parties, however the defendants were not served with notice of the applications. It is further contended that failure to follow the rules has occasioned injustice to the Attorney General in the instance as he was not heard. Thus, the submissions by the amicus will affect how the court interprets the constitution which should onlv be done when all the parties are heard with regards to admitting the amicus. The Applicants further argued that if the defendants were served, they would have objected to the admission of the amici curiae. Since the defendants were not served with the notice, the failure by the amici curiae to do so is a contravention of the Courts (High Court) Civil Procedure) Rules. The Applicants continued to argue that there is no evidence on the record showing that the applications by the parties to join as amici curiae was made with approval of their institutions or boards or council. Thus, it is the view of the Applicants on the authority of the case of Chaponda and another v Kajoloweka and another4 leave for judicial review ought not have been the amici curiae. Respecting the question whether stay should be granted or should continue , the Applicant has argued for its continuation. It is submitted by the Attorney General that the Court a quo did not follow the rules as set out in the Courts (High Court) Civil Procedure) Rules the end result of which wil affect all Malawians as the decision of the court below is about how we interpret the Constitution. It is further submitted that the submissions by the amicus will form part of the analysis of the court below in coming up with its decision. Thus, it further argued, it was only appropriate and as a legal requirement that the Attorney General should have been served and heard before the court admitted the amicus. The Applicants then submiited that It is just and 4 MSCA civil Appeal 5 of 2017 8~ expedient that the proceedings be stayed and the issue of the admission of the amicus be fully canvassed. The long and short of it is that the Attorney Generl has urged this Court to exercise its discretion to stay the Order of the court below admitting the amicus until the appeal on the impugned decisions is heard. Further, the applicant contends that there was unjust and procedurally irregular admission of amicus which significantly compromised justice on the matter. In sum, the Appellant submits that pending the hearing of appeal this Court should grant an on order of stay of order of High Court, sitting as a Constitutional Court, admitting amici curiae dated 11 February 2022. Finally, the Attorney General hasargued that the chances of success of the appeal before the Supreme Court of Appeal are high. It is therefore the applicamt’s submission that the interest of justice requires that this Court should maintains the stay order it granted. The Respondents' Arguments The lsl Respondent has argued that the stay herein should not be continued for the following reasons. The lsl Respondent argued that the Applicants neither filed a Notice of Appeal nor did they apply for leave to appeal before the Court below and therefore their application is prematurely before this Court. In support of this argument the 1st Respondent has cited Section 21 of the Supreme Court Act and Order III ule 3 of the Supreme Court of Appeal Rules. It was furthered submitted by the 1st Respondent that in the event that this Court finds that the Applicants’ application is properly before this Court, there is still need for this Court to note that what the Applicants are essentially seeking through these proceedings is an enlargement of time in which to file their Skeletal Arguments and list of documents in response to the Respondents ‘case. In short, the Applicants are asking for 30 days to file the said documents. It is the contention of the 1st Respondent that the Attorney General was served on 18 and 20 January 2022. Thus, the Respondent continued to argue, at least 40 days have elapsed, which means that the 30 days which the Applicants are seeking has already passed. Therefore, in the view of the Respondent, the remedy which the Applicants seek through the intended appeal has already passed. It is further claimed by the 1st Respondent that the Applicants have every intention to delay the proceedings before the Court below as despite dismissing their application for enlargement of lime to file their ~ 9 ~ Skeletal Arguments and List of Authorities the Court below still gave them 7 days within which to file their Skeletal Arguments and List of Authorities. The Is* Respondent adds that the Applicants did not even disclose before this Court that the Court below gave them 7 days more in which to file the said Skeletal Arguments and List of Authorities and to-date they have not done so. Thus, this application is an abuse of the Court process and that granting the Applicants a Stay Order will cause an injustice to the Respondents. On the Applicants" second application before the Court below which related to the Order admitting the amici curiae, it is submitted by the 1st Respondent that all the amici curiae already filed their written submissions before this Court such that if an appeal was to lie on the same, it will be just an academic exercise because the Court below has all the amici curiae submissions before it and the Court has already benefitted from the admitted amici curiae since their submissions were filed before the date of hearing. The 1st Respondent continued to argue that the Applicants have not shown through evidence what prejudice they have suffered or they will suffer if the proceedings in the Court below are not stayed and therefore they should not be allowed to delay this matter on frivolous grounds. Thus, the Is’ Respondent submitted that the interest of justice requires that this Court should not grant the Applicants the stay Order that the Applicants seek. Further, the 1st Respondent pray before this Court for an order dismissing the Applicants’ application with costs and that the Ex-parte-Ordcr of Stay granted to the Applicants be discharged. The 2nd Respondent It is the 2nd Respondent’s argumemt that in as much as the Applicants would like the proceedings in the lower Court stayed pending appeal, there is however no evidence that they sought or were granted leave to appeal the interlocutory ruling of the Court below dismissing the Applicant’s application to set aside order admitting Amicus Curiae. They add that no appeal on an interlocutory order or an interlocutory judgment made or given by a judge of the High Court shall lie to this Court without leave of the High Court. It is the further submission of the 2nd Respondent that there is therefore currently no appeal lodged in this matter and thus no need to stay the proceedings in the lower Court pending appeal. The 2nd Respondnent added that if however if this Court allows the Applicants to proceed with their application for stay then in determining whether to grant the Stay pending appeal the Court’s paramount guiding principle should the potential prejudice to cither or both of the parties and the risk of injustice to one or both of the parlies as was held in Puma Energy Malawi Limited v Bishop Abraham Simama and Simso Oil and Transport Company Limited.5 Further, the 2nd Respondent notes that the Applicants want to appeal the Court aquo’s refusal to set aside the admission of amicus curiae on the basis that the Attorney General was not served with their application to join as Amicus Curiae and that he was not heard. The 2nd Respondent admits that Order 19 rule 8 indeed requires that the Attorney General be served of every process in a Constitutional matter. However, the 2nd Respondent is of the view that tThe omission by the Amicus Curiae to serve the Attorney is not fatal to the case and in terms of the perfected ruling of the Court belowr the same was cured by the Court belowr pursuant to Order 2 rule 2 of the Courts (High Court) Civil Procedure Rules. Further, the 2nd Respondent argues that objections raised by a party or parties to admission of an amicus curiae is a factor to be taken into consideration but it is not the determining factor as the Court would still be entitled to exercise its discretion in favour of admitting the amicus curiae. The 2nd Respondent adds that the said Amicus are not even a party to this case and the Applicants have not demonstrated how the decision to admit the said Amicus has prejudiced them. They continued to submit that on the other hand the Respondents will suffer great injustice as the stay will lead to a delay in the matter yet the amicus that the Applicants do not want in this case are not even a party to this case. The Respondents further argue that they are adolescent boys currently on bail and their freedom greatly hinges on the completion of this case. Thus, the 2nd Respondent contends, the balance of justice is in favour of dismissing this application. The long and short of it is that the Respondents pray that the Appellant's / Applicant’s application for stay pending appeal be dismissed. ANALYSIS OF THE APPLICABLE LAW AND DETERMINATION Analysis of the applicable law 5 (MSCA Civil Appeal No. 19 of 2018). The Court has given deliberate consideration to the very helpful submissions of Counsel. Therefore, this Court is thankful to Counsel for both parties for their industry. 1 he application before this Court has been brought under Section 7 of the Supreme Court of Appeal Act as read together with Order I Rule 18 of the Supreme Court of Appeal Rules. Section 7 of the Supreme Court of Appeal Act provides: “A single member of the Court may exercise any power vested in the Court not involving the hearing or determination of an appeal: Provided that— (a) in criminal matters, if a single member refuses an application for the exercise of any such power, the applicant shall be entitled to have his application determined by the Court; (b) in civil matters, any order, direction or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the Court.” Clearly, the section gives power to a single member of the Court to hear matters so long as it does not involve hearing and determination of an appeal. A civil appeal is brought by a notice and grounds of appeal. The appeal is heard and determined when this Court hears and determines the grounds of appeal. In an application for stay a single member of the Court is not called upon to hear and determine the merits of the appeal. In other words, the single member does not hear the appeal and determine the outcome of the appeal as outlined in the grounds of appeal. Section 7 of the Supreme Court of Appeal Act makes it clear that the powers granted to the single member of the Court once exercised maybe varied, discharged or reversed by the Court. It is well to observe that at this juncture, the Appellant's purported appeal has not yet been heard or dismissed on merits. As this Court understands it, he intends to go before the full bench of this Court for review of the decision of the court below. Further, it is a fact that my decision can be reversed by the full bench. This Court has got the jurisdiction to grant a stay of the Ruling herein pending appeal. Section 7 of the Supreme Court of Appeal Act confers powers upon a single member of the Court to exercise any power of the Court except involving the hearing or determination of an appeal. The present matter does not involve the hearing or determination of ~12 an appeal. It is simply an interim relief that the Appellant seeks before its appeal can be heard by the Supreme Court. Further, it is well to remember that the application is made under Order I rule 18 of the Supreme Court of Appeal Rules. This provision stipulates that: "Whenever an application may be either to the Court below' or to the Court, it shall be made in the first instance to the Court below but, if the Court below refuses the application, the applicant shall be entitled to have the application determined by the Court.” The ultimate objective of stay ing proceedings is to ensure that there should be a fair trial according to law. This involves fairness to both the claimant and the respondent. The Applicants filed a without Notice application for permission to file and serve Skeleton Arguments and list of Authorities out of time on the 14th February 2022 a day before the hearing on the 15th February 2022. Applicants filed an application to set aside the order admitting Amicus Curiae on 14 February 2022. The Court below dismissed the Applicants’ application and ordered them to serve the Skeleton Arguments and List of Authorities within 7 days from the date of hearing. It then adjourned all briefs and submission by Amicus Curiae until 1 March 2022. It has further been put in evidence that the order admitting amicus curiae was made before the Defendants were heard although the applications were made with notice to the Defendants. In terms of Order I rule 18 of the Supreme Court of Appeal Rules, the Appellant is entitled to approach this Court and have his application for stay determined accordingly. It is so found and concluded that this Court has got the jurisdiction to preside over this matter and grant a stay of the Ruling of the HighCourton the application to set aside the order admitting Amicus Curiae on 14 February 2022. Further, there is no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. These are powers that are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its powers and to defeat any attempted thw^arting of its process. The powder which is inherent in a court’s jurisdiction to prevent abuses of its process and to control its own processes must as of necessity include a power to safeguard a litigant from oppression and abuse which will impede his right to a fair trial. This Court has inherent jurisdiction and can exercise its discretion to stay the Order of the Court below where the justice of the case requires it. In this regard, this Court finds very instructive the dictum of Justice Anderson in Cocker v Tempest6 where he instructively wrote of inherent jurisdiction of a court as folows: " The power of each court over its own process is unlimited; it is a power incident of all courts, inferior as well as superior; were not so, the court would be obliged to sit still and (to) see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter of the most careful discretion.” Further, in Connelly v Direction of Public Prosecution1, Justice Morris of the House of Lords observed that: "There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress and to defeat any attempted thwarting of its process." Furthermore, in the Canadian Case of Golden Forest Holding Limited v Bank of Nova Scotia3 Justice Hallet observed that: "The term inherent jurisdiction is not used in contradistinction to the jurisdiction of the court exercisable at common law or conferred on it by statute or rules of court for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or rules of court. The jurisdiction of the court which is comprised within the term inherent is that which enables it to fulfil itself properly and effectively, as a court of law. The overriding feature of inherent jurisdiction of the court is that it is a part of procedural law, both civil and criminal, and not a part of substantive law; it is exercisable by summary process without a plenary trial; it may be invoked not only in relation to parties in pending proceedings, but in relation to matters not raised in the litigation between the parties, it 6 151 E. R. 864 7 (1964) AC 1254 8 (1991) N. S. R (429 (1990 NSCA) - 14 must be distinguished from the exercise of judicial discretion and it may be exercised even in circumstances governed by rules of court... In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” Obviously, inherent jurisdiction of the court is not derived from any statute or rule of law but from the very nature of the court of law. It is intrinsic power in the courts. As reserve power, this inherent jurisdiction of the court may be invoked whenever necessary. Further, the principles in granting stays have been well articulated by our courts. The court always has discretion to decide on whether or not a stay should be granted. The Court can exercise its discretion to stay a decision whenever it reaches a conclusion that there has been a wrongful exercise of discretion (by the lower court), in that no weight, or no sufficient weight, has been given to relevant considerations. Thus, the reversal of the order may be justified. As found and concluded earlier, in terms of Order I rule 18 of the Supreme Court of Appeal Rules, the Appellant/ Applicant is entitled to approach this Court and have his application for stay of the ruling of the Court below on the application to set aside the order admitting Amicus Curiae on 14 February 2022 determined accordingly. What should guide this Court in this application for stay of proceedings? In the case of Malawi Revenue Authority v Nadeem Munshi9, the Court stated: "The Court considering stay of proceedings must realise that it is exercising discretion which like any other discretion must he exercised judicially, comporting that the Court must account for all material factors on all circumstances of the case. Failure to consider material factors and placing undue emphasis on a factor or circumstance is wrong exercise 9 Civil Appeal Cause No. 67 of 2013 (unreported) of jurisdiction... ‘ the critical consideration is whether there is a risk of injustice to one or other or both parties if it grants or refuses stay’,” (emphasis supplied) I he critical consideration by the Court should basically be where the interest of justice tilts between granting and refusing a stay. Thus, where the refusal of Stay would be unconscionable and unjust, then the same has to be granted. In Mike Appel Gatto Limited vs- Sanios ChUima™ this Court instructively put it thus: ‘‘Clearly, from this authority, the approach should be to look at all the facts of the Case and base the court's decision on what is ’’just and ’"expedient" in all the circumstances of the case ...a consideration of "risk of injustice” and "prejudice would encompass the considerations currently and conventionally considered: but it also allows for other considerations relevant in the case. Liberal in that way a court has a wider premise upon which to exercise its discretion in granting or refusing to grant a Stay of execution.” Having looked at the dicta in the two cases above, this Court must consider whether or not there is a risk of injustice to one or other or both parties if it grants or refuses stay. As this Court sees it there is a risk of injustice to the applicants if stay of proceedings is refused or not continued. In coming to this conclusion this Court is alive to the following: fhe present application is made pursuant to Order I Rule 18 of the Supreme Court of Appeal Rules which provides that " Whenever an application may be made either to the Court below or to the Court, it shall be made in the first instance to the Court below but. if the Court below refuses the application, the applicant shall be entitled to have the application determined by the Court.” It is on record that this application for stay was made in the court below and the court dismissed the application. It was therefore in order for the applicants to make this application before this Court. It is found and concluded that this application is appropriately before this Court. Further, it is well to point out that the application is predicated on the failure by the Court below to afford the Attorney General an opportunity to be heard in the proceedings concerning the amicus curiae. Respecting applications admission as amicus curiae, the provisions governing such applications have been provided under Order 19 rules 9, 10 and 11 of the Courts (High Courts) 1C MSCA Civil Appeal Number 20 of 2013 (unreported) ~16 (Civil Procedure) Rules, 2017 As provided for under Order 19 (8) of the Rules, such applications must be served on the Attorney General whether or not the Attorney General is a party to the proceeding. There is reason why an application for the admission of an amicus curiae must be served on the Attorney General. It is well to note where a matter is constitutional nature, or where a proceeding expressly and substantively relates to, or concerns the interpretation or application of the provisions of the Constitution, the law deems it appropriate for the principal legal advisor to government to be in the know and make his representation. The reason for this is understood when one looks at the requirements that one must satisfy in order to be admitted as amicus. Order 9 rule 10 of the of the Courts (High Courts) (Civil Procedure) Rules, 2017 provieds that that an amicus must (a) describe the interest of the amicus curiae in the proceeding; (b) identify the position to be taken by the amicus curiae in the proceeding: and (c) set out the arguments to be advanced by the amicus curiae, their relevance to the proceeding and the reasons for believing that the arguments will be useful to the Court. A reading of Order 9 rules 8 and 10 of the of the Courts (High Courts) (Civil Procedure) Rules, 2017 when read together, shows that it is imperative that before any person moves the Court on how the Constitution of Malawi should be interpreted, they must serve the office of the Attorney General and then satisfy the court of the matters set out in Order 9 Rule 10 of the said Order 9 rule 10 of the of the Courts (High Courts) (Civil Procedure) Rules, 2017. Further, it is well to note that the wording of the rule makes it mandatory that the Attorney General must be served with the application for amicus Curiae. This is in order to allow the Attorney General to make an informed submission on the matter and ventilate on it as well as address his mind as to whether or not the amicus will assist the Court in its deliberations on how to interpret the provisions of the Constitution that are a subject matter of the consideration by the court. The procedure is that the Attorney General makes his representations on the issues through the Court hearing the application, Unfortunately, the Court below denied the Attorney General that opportunity. It is accepted that the amicus are not parties to this matter, hut their submission will certainly assist the court in one way or the other on how to interpret our constitution. Thus, it is imperative that the Attorney General be served with the said application to be admitted as amicus documents before the admission and then the Attorney General was supposed to be given an opportunity to be heard11. The record shows that the Applicants (the Attorney General) raised this issue of the admission of the amicus curiae as a preliminary objection but the Court below dismissed it. The Court below did not comply with the rules of procedure. As if that was not enough, the admitted amicus curiae did not serve their application admitted as amicus curiae on the Attorney General as required by Order 19 (8) of the Courts (High Courts) (Civil Procedure) Rules, 2017. This was a serious failure by the Court below when it admitted amicus while denying the Attorney General right to be heard on their admission. Therefore, if the matter goes before a full bench of this Court there might be a case of the whole process of admitting the amicus curiae being declared invalid12. As found above, the Attorney General wras not heard at the time the application to admit the amicus curiae . Subject to what the full bench of this Court might say, 1 find and conclude that failure to follow the rules occasioned injustice to the Attorney General. The result being that the submissions by the amicus will certainly affect how the court interprets the Constitution. This should onlv be done when all the parties are heard with regards to admitting the amicus. xxxxx Having found that failure to follow the rules occasioned injustice to the Attorney General the question that arises is whether or not pending the determination of the appeal lodged herein by the Attorney General an order of stay of proceedings should be granted. Alternatively, whether or not pending the determination of the appeal lodged herein by the Attorney Greneral, the stay of proceedings granted earlier byb this Court should continue pending the determination of the appeal lodged herein by the Attorney General. The position at law is that the grant or refusal of stay of proceedings or court's decision is in the w ider discretion of the Court. The said discretion must be exercised judicially by the Court balancing between the genuine concern of causing an injustice to one of the parties if the stay is refused or granted13 In Mike Appel Gatto Limited vs- Saulos ChUima (supra) this Court said that, when deciding whether to grant a stay, the approach should 11 Nelson Jasi vs Republic Criminal Appeal No. 14 of 1997: see also Republic v Dennis Spax John Kambalame Criminal Case No. 108 of 2002 12 see City Assembly and Resale Auctioneers and Estate Agents v, G. H. Bandawe Singini Civil Appeal Number I of 2009 Malawi Supreme Court of Appeal Unreported ) 13 Mike Appel Gatto Limited vs- Saulos Chilima MSCA Civil Appeal Number 20 of 2013 (unreported) ~18~ be to look at all the facts of the case and the court's decision should be based on what is "just" and "expedient" in all the circumstances of the case. Further, the Court is enjoined the courts to take into account the risk of injustice and prejudice as relevant consideration when deciding whether or not a stay should be granted. Furthermore, This Court has found and concluded above that the Court below clearly did not follow the rules as set out in the Courts (High Court) Civil Procedure) Rules, 2017. Order 19 Rule 8 of the Courts (High Court) Civil Procedure) Rules, 2017 states that "every process under this Part shall be served on the Attorney General whether or not the Attorney General is a party to the proceeding." Further, in terms of Order 2 Rule 3 of the Courts (High Court) Civil Procedure) Rules, 2017 swhere there has been a failure to comply with these Rules or a direction of the Court, the Court may do any of the following: set aside all or part of the proceeding; set aside a step taken in the proceeding; declare a document or a step taken to be ineffectual; declare a document or a step taken to be effectual; make an order as to costs; or make any order that the Court may deem fit. It is noted that some of applications for the admission of the amicus curae were inter parties but the defendants were not served with notice of the applications. Had the defendants (the Attorney General and Inspector General) been served, they would have been given an opportunity to object to the admission of the amici curiae. Since they were not served with the notices, the failure by the applicants to do so was and remains a contravention of the provisions of the Courts (High Court) Civil Procedure) Rules, 2017. It was only appropriate, and it was a legal requirement that the Attorney General should have been served and heard before the court admitting the amicus curae. What it means is that all Malawians will be affected by the decision to admit the amicus curae in the proceedings befre the Court below yet the Chief Legal advisor to the Malawi Government was not heard on the application to admit amicus curae yet the decision of the Court below is about how we as a country should interpret the Constitution. Further, the submissions by the amicus will form part of the analysis of the Court below' in coming up with its decision yet the decision views of the Attorney General was not canvassed as to whether the amicus should join in the application before the Court below respeftin the interpretation of our Constitution. From the foregoing, it only just and expedient that the proceedings be stayed and the issue of the admission of the amicus be fully canvassed. In sum, this Court is of the view, and it so finds as a fact, that the interest of justice tilt in favour of granting a stay of proceedings pending the determination of an application to set aside an order admitting Amicus Curiae. At the the hearing of the appeal this Court will have to decide whether the foreign parties have sufficient interest in the matter warranting them to join as curiae considering what this Court observed in Attorney General v. The Malawi Congress Party and Others 14 as wel as case of The President of Malawi and Another v. Kachere and Others l5; United Democratic Front v. The Attorney Generall6; Civil Liberties Committee Minister of Justice and another ,7. Further, in the appeal the Court will have to consider whether the order admitting the amici curiae was regular in view of the decision of this Court in Chaponda and another v Kajoloweka and another™ on the authority to institute legal proceedings by institutions or boards or council. Further, it is well to observe that the position at law is that the Court is enjoined to make sure that an appeal is not rendered nugatory. The Court can only do that if it grants a stay of execution pending appeal. This Court has defined what it means for an appeal to be rendered nugatory in the case of Auction Holdings Limited vs Sangwani Judge Hara and Others. MSCA Civil Appeal No. 69 of of 2009: “... Nugatory is a state of affairs. A state of affairs where the appeal will not yield results; where the appellants efforts even if successful, will be a wasted effort for lack of remedy. Pursuant to these considerations, as the court put it in Circle Plumbing Ltd vs Taulo [1993] (16) 2 MLR 506 an appeal can only be rendered nugatory if for example the subject matter of the appeal is destroyed or ceases to exists or changes substantially or where if the appeal succeeds it would be impossible to recover the damages that would be sought. The real question is for the court is whether the appellant will engage in an exercise in futility” This Court observes that the admission of the amicus curac means that the hearing of the judicial review' will proceed and the Court below' might make orders adversely affecting the defendants and the country. If these orders are to be complied with, a successful appeal herein will thus be rendered nugatory. Thus, it is only fair that this Court should stay the order admitting the amicus 14 M. S. C. A. Civil Appeal No. 22 of 1996 (unreported) 15 M. S. C. A. Civil Appeal No. 20 of 1995 (unreported) 16 Civil Cause No. II of 1994 (unreported) 17 MSCA civil Appeal No. 12 of 1999 (unreported) 18 MSCA civil Appeal 5 of 2017 (unreported) unitll the appeal is heard and determined. This will avert the inherent risk and prejudice as well as injustice the admission of the amicus shall pose on the Appellant if this appeal is successful. DETERMINATION 5 In light of what this Court has observed above respecting the applicable law on the application before it, it finds and concludes that the application for stay succeeds. In the circumstances, the interests of justice plainly require that this Court should stay the proceedings in the Court below pending hearing of the application setting aside order admitting amicus curiae. The order of High Court, sitting as a Constitutional Court, admitting amici curiae dated 11 February 2022 is stayed 10 pending hearing of the an application/ appeal to set aside the order admitting amicus curiae. It is so ordered. Made in Chambers at the Supreme Court of Appeal, Blantyre this 2nd day of December 2022. JUSTICE F. E. KAPANDA SC JUSTICE OF APPEAL ~21 ~