Chaponda v AG (Civil Cause 616 of 1994) [1997] MWHCCiv 10 (22 January 1997)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 616 OF 1994 BETWEEN:- L. CHAPONDA - and - THE ATTORNEY CORAM: MRS A. S. E. MSOSA, J. Mandala, Counsel for the Plaintiff Chigawa, Counsel for the Defendant Mkwepuh, Official Interpreter Katunga (Mrs), Recording Officer JUDGMENT The plaintiff claims damages for wrongful conversion of his shares in Southern Bottlers (Mw) Ltd and for wrongful conversion of his real property. The plaintiff by his Statement of Claim pleads that he was the owner of shares numbers 55045 to 55294 and He held 58177 to 58326 The these shares under share certificate number 119 plaintiff was also owner of four real properties held by him under title deeds number 28837, 27050, 26923 and 22573. in the then Nyasaland Bottlers Limited. to 126. has an order of the Minister responsible for the Forfeiture Act which The plaintiff's property was declared forfeit to the Malawi the Government by administration of since been repealed. The plaintiff contends that the Forfeiture order was in bad faith as he was neither a threat to the National made Economy nor a threat to Public Security. He further contends that the Forfeiture Order was unlawful and unconstitutional. He further states that it was by reason of the unlawful order that the his in 1966, and that the said sum of Administrator General at £400 £400 the Malawi The plaintiff also contends that it Government to its own use. was the Malawi Government reason expropriated his real property for the use of members of the now disbanded Malawi Young Pioneers and the Chinese Agricultural Mission in Malawi. in Nyasaland Bottlers Limited were together with dividents were converted by this order sold by shares that of by The plaintiff claims; (a) declaration a unconstitutional and unlwaful; that the forfeiture order was - 2 - (b) damages for conversion of the shares; (c) the return of his property; and (d) in the alternative, damages for conversion of the real property. denies in bad The The defendant that further the plaintiff was faith, or defendant in his defence, denies that the forfeiture and it was unlawful order was made the that unconstitutional. the Government. plaintiff's shares were wrongfully converted by lawfully made a The defendant states that subject of forfeiture and consequently, by the property vested in the Administrator General who had powers to dispose of it. The defendant states that under Section 7 of the Forfeiture Act, no suit could be brought against The defendant further states that according to Section 209 (2) (b) as read with Sub-section (4) of the Constitution, the rights in the repealed property of persons who were subjected Forfeiture Act vest in the National Compensation Fund, and that as such the property should be disposed of in accordance with the the National Compensation principles, procedure and rules of The Tribunal as provided defendant also states is statute barred by the operation of Section 4 (1) of the Limitation Act. in Section 138 of the Constitution. the plaintiff's claim the Government. the now that law, to The plaintiff, that his rights are in his reply, denies vested in the National Compensation Tribunal. He states that he instituted this action prior to the 1994 Constitution of Malawi. The plaintiff states that he only learnt that his property was forfeited on or about 24th January, 1994. He consequently contends that the course of action accrued on that date and therefore Section 4 of the Limitation Act does not apply. the commencement of The plaintiff is a businessman and has been such for a very long time. He testified that in 1962, he owned fifteen lorries, several houses, groceries and a maizemill. All these properties shares were in as Southern Nyasaland Bottling Company which Bottlers. He also had 400 is the City of Blantyre. known now in It was whilst he was In 1964 the plaintiff went to Zambia to open some additional in Zambia that he learnt that, businesses. all his dogs were killed. He was further warned that it was not safe for him to return to Malawi. He therefore stayed in Zambia and only returned to Malawi in 1993. According to him, it was after his return that he learnt that by an order of the Minister the administration of the Forfeiture Act, his responsible for property was in November, 1966. the Malawi Government forfeited to The facts of this case are not in dispute. The defendant readily admitted the facts as pleaded by the plaintiff and called no witnesses. - 3 - The main issue is the application of the Forfeiture Act on the defendant and his property. The question is whether it was the constitutional the constitution that existed at that time. the the since been Constitution which fundamental principles of the Government. For the purpose of the present case the following sub-sections thereto are relevant: provisions Section 2(1) of laid down repealed regard having has of to "(iii) The Government and the people of Malawi shall continue to recognise the sanctity of the personal liberties enshrined in the United Nations Universal Declaration of Human Rights and of adherence to the Law of Nations. ( i V ) No person should be deprived of his property without payment of fair compensation, and only where the public interest so requires." There was a saving clause to the above provisions which was a s follows: 11 (2)-Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of sub-section (1) to the extent that the law in question is reasonably required in the interests of defence, public safety public order or the national economy." The Forfeiture Act gave powers to the Minister to declare, by order published in the Gazette, a person to be subject to forfeiture if he was satisfied that the person to be forfeited the safety or the had been acting economy of the lawfully established Government. The Minister had powers to make the declaration whether the person was within or outside Malawi. I am of the view that these powers did not per se contravene the above constitutional provisions in view of the proviso. in a manner prejudicial to the State or subversive the authority of to The position was that the in the Government to deprive a person of his property if it was public interest provided the person was compensated. Further the that could have constitution by a p p e a re ct i f the interests of defence, such public safety, public order or the national economy. law t h e p r ov i s i o n s of Sec t i on 2 ( 1 ) the proviso allowed reasonably required i n c o n s i st e n t w i t h constitution law was allowed the the in It is clear that the proviso was necessary because it was un der this proviso that a person could lawfully suffer forfeiture of his property if convicted of some offences e.g. under the Pe nal Code, Exchange control regulations, Customs and Excise Act et c . This clearly shows that there were several laws under which - 4 - a person's property could be forfeited without the person getting the interests of defence, any compensation provided it was public safety, public order or the national economy. that ex t ent, the law would not be said to be unconstitutional. in To the Minister The Forfeiture Act authorised to deprive a person of his property if the Minister was satisfied that the in a manner prejudicial to the safety of the person had acted economy of the state or was subversive to the authority of the lawfully established Government. Can one say that this part of the Act was unconstitutional? The circumstances under which one could be forfeited were spelt out and these were compatible with the proviso to Section 2 ( 1) of the Constitution. think not so. do I and to appoint a Forfeiture committee It is significant to note that under the Act the Minister to make had powers regulations necessary or convenient for carrying out or giving It seems, from the available evidence, there effect to the Act. Perhaps if these we re no Forfeiture Committee and regulations. an had been created, opportunity of challenging the order at some point, or at least gi ven an opportunity to be heard. forfeited person could have had The evidence before me does not show the circumstances under f which the plaintiff was forfeited. had been acting in a manner as specified in the Act. However I feel that even today the Government should be able to justify the i t s actions, otherwise how does one Minister took. The assumption is that the action justify he ff the Republic It was held -v- in MSCA Criminal Application No. 9 of 1992 the United Nations Universal Chihana Declaration of Human Rights is part of the law of this country. Article 17 (1) and (2) of the said declaration provides that every person has a right to own property and that no one shall be arbitrarily deprived of his property. And Article 8 guarantees a competent every individual the right to an effective remedy by national tribunal for acts violating fundamental rights. that - I from subject see with the personal the plaintiff to forfeiture. The problem as the Forfeiture Act to be the prov1s1ons of the available evidence of the present case, is the procedure used in declaring The the constitution which procedure offended in guaranteed one the United The forfeited Nations Universal Declaration of Human Rights. person was deprived of his property without fair compensation and his The plaintiff was not even given any opportunity to be heard at any s tage the process of making him a subject to a forfeiture order or thereafter. The many cases that have come to this court s how that almost all the people who were made subjects of the forfeiture order, the procedure used was similar to the one used in the present case. The Minister felt that he was not under any a competent court. liberties enshrined to effective remedy by right in - 5 - obligation to state the circumstances that justified the making The person forfeited was not given a of the forfeiture order. chance to be heard. Perhaps if the proper procedure as provided in the United Nations Universal Declaration of Human Rights had been followed, the effect of the forfeiture order could have been It is not surprising that the Forfeiture Act failed ~ otherwise. to survive in the new democracy. Having regard to all this I / find that the Forfeiture Order in the present case was unlawful /) and unconstitutional. As to whether this matter is statute barred or not I agree with what Judge Tambala said in Civil Cause No. 1855 of 1993 Ali The facts of the case Mahomed Waka -v- The Attorney General. were similar to those of the present case. The Judge said that Section 4 of the Limitation Act which prescribes time limits in ; cases founded on contract, tort, actions brought to enforce a He recognisance or an award did not cover that type of case. also observed from barred the forfeited instituting any property. therefore found that the plaintiff was under a legal disability up to the time that the Act was repealed which was that legal proceedings person was in respect of forfeited in 1994. the He instituted The plaintiff the present Constitution came into force. He is therefore not bound by Section 138 of the Constitution. For the reasons I have given therefore enter the plaintiff succeeds I refer the matter to judgement for the plaintiff with costs. the Registrar for assessment of damages in the event that the property can not be restored to the plaintiff. these proceedings before in all his claims. I DATED this 22nd day of January, 1997 at Blantyre • . , ;;.~,,, ~ ... , ... ~ .- 0 __:7•y:~C\ Mrs A. S. E. Msosa JUDGE -... J.. J