State(on the Application of the Registered Trustees of Seventh Day Adventist Association of Malawi )v Minister of Justice (Judicial Review Case 55 of 2021) [2023] MWHC 131 (27 October 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION JUDICIAL REVIEW CASE NO. 55 OF 2021 (Before Honourable Justice Mambulasa) BETWEEN: THE STATE [ON THE APPLICATION OF THE REGISTERED TRUSTEES OF THE SEVENTH-DAY ADVENTIST ASSOCIATION (MALAWD)]......ccccesccccesesssssscccecessscccecsssecccecssseecescesssssseees CLAIMANT -AND- MINISTER OF JUSTICE........ccsccssccessscesssescessseceeesseseeees DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Ralphael Joseph Mhone, Advocate for the Claimant Mr. Marshal Chilenga, Advocate for the Claimant Defendant, Absent Mr. Obet Chitatu, Court Clerk JUDGMENT MAMBULASA, J [1] [2] [3] [4] Introduction The Claimant is a trust duly incorporated in the Republic of Malawi under the Trustees Incorporation Act! and is a bona fide owner and administrator of the Seventh-Day Adventist Church and all its subsidiary entities in the aforesaid Republic. On or about 17" September, 2021 the Claimant sought the permission of this Court to commence judicial review proceedings as well as suspension of the decision by the Defendant to incorporate and issue a certificate of incorporation styled Zhe Registered Trustees of the Seventh-Day Adventist Church (Mw). Upon consideration of the two applications, this Court granted the Claimant both applications. Hearing of the proceedings was postponed several times for various reasons and was finally had on 17" July, 2023. This is now this Court’s final determination of the matter. In the main, the Claimant contends that the decision by the Defendant to incorporate the entity referred to in paragraph 2 hereof was made: ' Cap. 5:03 of the Laws of Malawi. (a) (b) without following the mandatory legal requirements under the Trustees Incorporation Rules; without due regard to the fact that the proposed name offended the rule against resemblance of names that which may have been calculated to deceive, as per the provisions of the Trustees Incorporation Rules. [5] The Claimant is therefore seeking a number of reliefs as follows: 5.1 5.2 5.3 5.4 A declaration that the decision by the Defendant to proceed with the incorporation of the entity styled The Registered Trustees of the Seventh-Day Adventist Church (Mw) was unlawful and unreasonable in the Wednesbury sense; A like order to certiorari quashing the Defendant’s decision to incorporate or issue a duplicate certificate of incorporation to The Registered Trustees of the Seventh-Day Adventist Church (Mw); A declaration that the incorporation of The Registered Trustees of the Seventh-Day Adventist Church (Mw) was a nullity and of no effect and that all steps taken by the entity on the basis of such incorporation stands nullified; Further, or any other relief that the Court may deem appropriate to order or make; and [6] 5.5. An order for costs. Issues for Determination The issues for determination are: 6.1 6.2 6.3 6.4 6.5 Whether or not Dr. Renderson Joseph Gombwa is the Chairperson or trustee of the Registered Trustees of Seventh Day Adventist Association (Malaw1)? Whether or not Pastor Tony Yolamu Nyirenda is the Chairperson or trustee of the Registered Trustees of Seventh Day Adventist Association (Malaw1)? Whether or not Dr. Renderson Joseph Gombwa should personally bear the costs of the application? Whether or not the decision of the Defendant to incorporate and issue a certificate of incorporation to Zhe Registered Trustees of the Seventh Day Adventist Church (Mw) was lawful and unreasonable in the Wednesbury sense? Whether or not the Defendant could incorporate and issue a certificate of incorporation to an organization desirous of being incorporated as a trust, without having satisfied the legal requirements made under both the Trustees Incorporation Act and the Trustees Incorporation Rules? [7] [8] [9] [10] 6.6 Whether in the circumstances, the Defendant was under an obligation to inquire if there was any other organization or trust with a similar or resembling name, duly incorporated, to form an opinion that the application in issue was calculated to deceive? The Claimant’s Case — As presented by Dr. Renderson Joseph Gombwa The Sworn Statement in Support of the application for Judicial Review was filed by the alleged Chairperson of the Board of Trustees of the Claimant, Dr. Renderson Joseph Gombwa. He also made another Sworn Statement verifying facts dated 14" September, 2021. In brief, he depones that the Claimant was duly incorporated as a trust on 23 June, 1967 with nine (9) trustees, namely, Pastors W. L. Masoka, G. S. Moyo, B. M. Sticle, H. B. Kanjewe, J. H. Kanjira, D. W. Kapitao, F. K. Nyasulu, Dr. R. J. Gombwa, and Mr. P. A. Chitsime. There are attached three exhibits to the Sworn Statement verifying facts being a return of these nine (9) trustees filed with the Registrar General showing that they were appointed on 1* April, 1990 marked as, “RG1”, a certificate of incorporation of the Claimant herein dated 23" June, 1970 marked as, “RG2” signed by the then Minister of Justice, H. Kamuzu Banda and an amended Constitution of the Claimant marked as, “RG3”’. Six of the initial trustees are now deceased, leaving three surviving trustees being Dr. R. J. Gombwa, G. S. Moyo and Mr. P. A. Chitsime. The Defendant made a decision, on 2™ September, 2021 to issue a certificate of incorporation number TR/INC5228 to an entity styled The Registered 5 [11] [12] [13] Trustees of the Seventh-Day Adventist Church (Mw). There 1s attached a copy of the said certificate marked as, “RG4” signed by the current Minister of Justice, Titus Edward Songiso Mvalo. The name of the trust that has been incorporated closely resembles the Claimant’s name and it is its opinion that this was calculated to deceive its members, followers, as well as well-wishers and would-be followers. The Claimant sought to find out the basis of the incorporation, noting there had been disagreements within its association amongst its members, pastors and trustees, and inquired with the Registrar General to find out who was behind the incorporation. The Claimant found out that as of 10 September, 2021 there had been no application deposited at the Department of Registrar General, warranting the issuance of the certificate of incorporation styled The Registered Trustees of the Seventh- Day Adventist Church (Mw) as follows: 13.1 There was no Form A duly filled and completed to necessitate the consideration of the application; 13.2 There was no certified copies of the constitution of the intended trust, in duplicate and duly certified by its officer as mandated by the rules; 13.3. There was no evidence of payment of the prescribed fee which is a prerequisite to the acceptance of the documents; [14] [15] [16] [17] 13.4 There were no signatures of the applicants of the new intended trust and there were no statements duly verified by any declaration of the applicants either before a commissioner for oaths, or any other authorized officer; and 13.5 In summary, there was no application duly filed to warrant the issuance of the certificate of incorporation. The Defendant thus issued the certificate of incorporation to The Registered Trustees of the Seventh- Day Adventist Church (Mw) without duly complying with the legal requirements. If there had been a proper application at the Department of Registrar General, they would have examined the documents and determined that the intended name closely resembled that of the Claimant and that the application was calculated to deceive in the absence of evidence of consent by the Claimant’s trustees or application for a change of name. The Defendant took into account extraneous and irrelevant considerations in making the decision to incorporate The Registered Trustees of the Seventh- Day Adventist Church (Mw) and ignored the legal requirements to that effect. Thus, the Claimant prayed that this Court finds that the said decision 1s illegal, irrational, and unreasonable and further grants the Claimant the reliefs sought. The Claimant’s Case — As presented by Pastor Tony Yolamu Nyirenda [18] [19] [20] On 26" April, 2023 Messrs T. F. Partners filed a Notice of Appointment of Legal Practitioners. In that Notice, they stated that they were representing the Claimant herein. Similarly, on 20" June, 2023 Messrs T. F. Partners filed Skeleton Arguments in Opposition to the application for Judicial Review in which they identified themselves as legal practitioners for the Claimant. Then, on 20" July, 2023 Messrs T. F. Partners filed a Notice to Cross-Examine a Deponent under Order 18, rule 23 of the Courts (High Court) (Civil Procedure Rules, 2017. In this new Notice, they identified themselves as legal practitioners for the Interested Party. Finally, Messrs T. F. Partners filed submissions on 10 August, 2023 in which they identified themselves as legal practitioners for the Claimant. Why is this information important? As the parties to these proceedings show, there is no party that identified itself as, Interested Party. This Court takes it that the Notice to Cross-Examine a Deponent filed by Messrs T. F. Partners in which they identified themselves as legal practitioners for Interested Party was a mere inadvertence in drafting. Ordinarily, the appointment of Messrs T. F. Partners would have meant that the Claimant herein was just beefing up its legal team. However, that was not the case in this matter. That will become clear shortly. Pastor Tony Yolamu Nyirenda filed a Sworn Statement in Opposition to the application for Judicial Review. As it will soon turn out, the opposition, is not really in terms of the substance of the application per se, but rather, the person who made the Sworn Statement on behalf of the Claimant. [21] [22] [23) [24] [25] [26] In brief, Pastor Tony Yolamu Nyirenda depones that he is allegedly the President of the Seventh-Day Adventist Association and Malawi Union Conference of Seventh Day Adventist in Malawi. He further depones that he read the Sworn Statement in Support of the application for Judicial Review by Dr. Renderson Joseph Gombwa and that the said Dr. Renderson Joseph Gombwa 1s not the chairman of the Board of Trustees of the Claimant and has never been one. However, Dr. Renderson Joseph Gombwa was a member of the Board of Trustees of the Claimant from 1990 to 1995 when his term expired following a quinquennial session of the association. There is exhibited a copy of the return of the trustees of the Claimant that was filed at the Department of Registrar General made up to 31‘ December, 2020 marked as, “TYN1”. That after the term of Dr. Renderson Joseph Gombwa and his fellow trustees, other trustees were appointed by the quinquennial session. That Dr. Renderson Gombwa was appointed in his capacity as a medical doctor from the Seventh Day Adventist Church and he was duly replaced by Dr. Chitsa Banda. There is produced a copy of the return of the trustees of the Claimant that was filed at the Department of Registrar General made up to 16 November, 2021 marked and exhibited as, “TYN2”. That the incorporation of The Registered Trustees of the Seventh Day Adventist Church (Mw) was a nullity as stated in the Sworn Statement of Neverson Chisiza. [27] [28] [29] [30] [31] [32] That there is no charitable association named, The Registered Trustees of Seventh Day Adventist Association (Malawi) but Seventh-Day Adventist Association. There is produced a copy of the certificate of incorporation of the Claimant marked and exhibited as, “TYN3”. That contrary to the factual background in paragraph 6 of the purported Sworn Statement of Dr. Renderson Joseph Gombwa, the original trustees were Merle Leon Mills, Alexander Walton Austen, Norman Lavern Doss, Saul Master Samuel and Gerald Lexien Cullum. There is produced a copy of the original registration application marked and exhibited as, “TYN4”. That contrary to paragraph 7 of the purported Sworn Statement of Dr. Renderson Joseph Gombwa, the trustees are Tony Yolamu Nyirenda, Victor Kachola, Evison Dambula, Wyson Thomas, Petros Sukali, Goodwin Sibande, Thomson Ligowe, Dr Annie Msosa and Florence Chipungu. There is produced a copy of the return of the trustees of the Claimant exhibited and marked as, “T'YN5”. That neither Dr. Renderson Joseph Gombwa, nor G. S. Moyo nor P. A. Chitsime are trustees of the Registered Trustees of the Seventh Day Adventist Association and that Dr. Renderson Joseph Gombwa has no capacity to commence the within proceedings at all. That it is just and equitable that Dr. Renderson Joseph Gombwa do bear the costs of the proceedings personally as he has been posing as a trustee. Thus, the deponent prays for an order that the incorporation of 7he Registered Trustees of the Seventh Day Adventist Church (Mw) be declared a nullity and 10 [33] [34] [35] [36] [37] that Dr. Renderson Joseph Gombwa do bear costs of the proceedings personally. The Defendant’s Case The Defendant did not attend hearing of the proceedings in this matter. The Court was satisfied that he was duly served with the Notice of Adjournment in the matter and proceeded to hear it noting that it has been outstanding for some time. However, pursuant to Order 19, rule 24 of the Courts (High Court) (Civil Procedure) Rules, 2017 the Defendant filed his defence supported by a sworn statement as required. The Defendant, through his Senior Assistant Chief State Advocate, Mr. Neverson Chisiza filed his defence in the matter in which he deponed that the incorporation of the entity in dispute was fake and it never was and was as a result of forgery and suspects were arrested to that effect and are being prosecuted. A Sworn Statement in Opposition to the application for Judicial Review was made by the Registrar General in the Ministry of Justice, Mr. Chikumbutso Namelo. He depones that he was aware that the purported impugned decision of the Defendant 1s that he allegedly incorporated The Registered Trustees of the Seventh Day Adventist Church (Mw) thereby infringing the rule against resemblance to the name of the Claimant herein. 11 [38] That the certificate of incorporation for The Registered Trustees of the Seventh Day Adventist Church (Mw) 1s fake as 1t was forged by some individuals that were assisted by some suspected officers at his office in Blantyre. [39] That the suspects were subsequently arrested by Fiscal Police, and are [40] [41] [42] [43] answering criminal charges bordering on forgery. There was a purported charge sheet marked as, “CN1” which was not exhibited as required. That from the foregoing, the deponent believed that there was neither a decision nor an omission to be reviewed herein. Thus, he prayed that this application should be dismissed in its entirety with costs because the Claimant was aware or ought to have been aware that the purported certificate of incorporation for The Registered Trustees of the Seventh Day Adventist Church (Mw) is fake and yet it kept on prosecuting this proceeding. The Claimant (as represented by Dr. Renderson Joseph Gombwa) filed a Notice to Cross - Examine Pastor Tony Yolamu Nyirenda. The Claimant (as represented by Pastor Tony Yolamu Nyirenda) also filed a Notice to Cross — Examine Dr. Renderson Joseph Gombwa. Cross-Examination of Dr. Renderson Joseph Gombwa In cross-examination, Dr. Renderson Joseph Gombwa told the Court that the Claimant was not incorporated in 1967 as he alleged in his Sworn Statement in Support of the Application for Judicial Review. 12 [44] [45] [46] [47] [48] [49] [50] [51] Asked whether Dr. Renderson Joseph Gombwa was one of the initial trustees of the Claimant, he told the Court that he was. Interrogated further as to when he (Dr. Renderson Joseph Gombwa) became a trustee, he told the Court that it was in the year 1990. Asked as to who appointed him as such trustee, he (Dr. Renderson Joseph Gombwa) said that he could not remember. Quizzed as to where he was appointed as a trustee, he (Dr. Renderson Joseph Gombwa) told the Court that he could also not remember. Again asked whether he attended a session of the Seventh Day Adventist Association (Malawi) in the year 1990 he told the Court that he could not remember. Asked whether he served as a health services director of the Malawi Union Conference of Seventh Day Adventist, he confirmed to the Court that he did serve in that capacity. However, he could not remember the date when he started serving. Questioned whether he had minutes of the trusteeship of the period that he (Dr. Renderson Joseph Gombwa) served as a trustee of the Claimant, he told the Court that he did not have them. Asked further whether after the year 1990 he (Dr. Renderson Joseph Gombwa) attended any other session of the Seventh Day Adventist Association (Malawi), he said he has attended none. 13 [52] [53] [54] [55] [56] [57] [58] Dr. Renderson Joseph Gombwa told the Court that he was not aware of what was happening in the Claimant’s association, including when and where the trustees were meeting. Quizzed again how long he served as a trustee in the Claimant’s association, he said from the year 1990 to the year 2021. Asked whether he (Dr. Renderson Joseph Gombwa) filed any returns at the Registrar General’s office, he said he never did, but other people were performing that role even though he was there on paper. Quizzed on who the other people were, Dr. Renderson Joseph Gombwa said it was the Chief Executive Officer who was performing the functions of the trustees. Dr. Renderson Joseph Gombwa did not know that trustees were replaced from time to time. Specifically, he did not know when the list of the original trustees on page 14 of the Constitution of the Claimant of 1970 were replaced and the names of the trustees who replaced them. There was no re-examination of Dr. Renderson Joseph Gombwa. Cross-Examination of Pastor Tony Yolamu Nyirenda Pastor Tony Yolamu Nyirenda was referred to exhibit marked as, “T'YN1” attached to his Sworn Statement in Opposition to the application for Judicial Review. He explained that it was a return that the trustees made after the expiry of their term of office. 14 [59] [60] [61] [62] [63] [64] [65] Asked to explain whether the exhibit showed Dr. Renderson Gombwa as one of the former or retiring trustees, Pastor Tony Yolamu Nyirenda told the Court that it did not. Quizzed as to when the said exhibit was filed with the Department of Registrar General, the deponent said that it was on 11" July, 2023. Pastor Tony Yolamu Nyirenda was also referred to exhibit marked as, “TYN2” attached to his Sworn Statement in Opposition to the application for Judicial Review. He told the Court that it was also a return of trustees made after the expiry of their term of office. Asked as to when the exhibit was filed with the Department of Registrar General, the deponent said that it was on 11" July, 2023. Pastor Tony Yolamu Nyirenda was then referred to the stamp that had been put by the Registrar General on the exhibit to which he then changed and said that it was filed on 3 May, 2022. Similarly, Pastor Tony Yolamu Nyirenda was referred to the FDH Bank Plc generated receipt accompanying the exhibit and he told the Court that it bore the date of 5" May, 2022. Asked to explain whether the exhibit showed the name of Dr. Renderson Joseph Gombwa as a former or retiring trustee, he told the Court that it did not. 15 [66] [67] [68] [69] [70] [71] Pastor Tony Yolamu Nyirenda was also referred to exhibit marked as, “TYNS5S” attached to his Sworn Statement in Opposition to the application for Judicial Review. He told the Court that it was also a return of trustees made after the expiry of their term of office. Asked what date the exhibit and the accompanying FDH Bank Plc receipt bore, the deponent told the Court that it was 11" March, 2022. Quizzed further why he (Pastor Tony Yolamu Nyirenda) did not exhibit all the returns of changes in trustees from the beginning up to year 2022, he told the Court that the same were not being made and the Claimant was made to pay a penalty for that. The deponent confirmed to the Court that there are gaps of so many years and that the information that he provided to the Court was not complete. Pastor Tony Yolamu Nyirenda was further referred to exhibit marked as, “TYN3” attached to his Sworn Statement in Opposition to the application for Judicial Review. He told the Court that it was a certificate of incorporation and that it had the word, “Malawi” in full. The deponent was referred to paragraph 9 of his Sworn Statement in Opposition to the application for Judicial Review and he agreed entirely that the incorporation of The Registered Trustees of the Seventh Day Adventist Church (Mw) was a nullity. He also told the Court that there was no agreement made to come up with it and that there are no trustees of the disputed entity. 16 [72] Pastor Tony Yolamu Nyirenda was shown the certificate of incorporation of The Registered Trustees of the Seventh Day Adventist Church (Mw). He explained to the Court that it was incorporated on 2™ September, 2021 and that it was a nullity as it did not belong to their church. They never sanctioned it and he did not have any clue how the Defendant signed it and that he had no problem that the Court quashes it. [73] The deponent told the Court that exhibit marked as, “TYN4” was a copy of the Constitution of Seventh Day Adventist Association (Malawi) of 1970. [74] Pastor Tony Yolamu Nyirenda was asked to read Clause 27 of the said Constitution to the Court. He did. It provides as follows: At the first annual general meeting of the Association, and at the annual general meetings biannually thereafter, all members of the Board of Trustees shall retire from office. If at any meeting at which an election of Trustees ought to take place, the places of the retiring Trustees are not filled up then the retiring Trustees or such of them as shall not have had their places filled up, shall be deemed to have been re-elected at such meeting. [75] The deponent confirmed that he did not have all the returns from the year 1990 to the year 2022. He said that the Court should look to the sessions as elections have been happening in the association ever since. Pastor Tony Yolamu Nyirenda confirmed that the returns before the Court did not show that Dr. Renderson Joseph Gombwa is one of those trustees who retired. [76] Asked whether Clause 27 of the Constitution that he read to the Court referred to or used the word, “sessions”, the deponent told the Court that it did not. 17 Re-Examination of Pastor Tony Yolamu Nyirenda [77] Quizzed what the first sentence of Clause 27 of the Constitution provided, Pastor Tony Yolamu Nyirenda read it to the effect that at the first annual general meeting of the Association, and at annual general meetings biannually thereafter, all members of the Board of Trustees shall retire from office. [78] He told the Court that the meetings referred to in the first sentence of Clause 27 of the said Constitution are now called, “sessions”. [79] Quizzed about the positions that are filled during such meetings, Pastor Tony Yolamu Nyirenda told the Court that they also include officers and departmental directors of the Seventh Day Adventist Association (Malaw1). [80] The deponent told the Court that elections take place after every five years. [81] Asked as to who were the trustees of the Claimant after the year 1995, the deponent told the Court that they were Dr. Sosten Mfune, Baxter Chilunga, Hopekins Ngomba. He pointed out that this was already in evidence. [82] Quizzed which certificate of incorporation was the genuine one, the deponent told the Court that the one that had the words, “Association (Malawi)” and that this was according to his exhibit marked as, “T'YN3”. The Law, its Application, Analysis and Determination [83] Order 19, rule 20 of the Courts (High Court) (Civil Procedure) Rules, 2017 provides as follows: 18 [84] [85] (1) Judicial review shall cover the review of- (a) a law, an action or a decision of the Government or a public officer for conformity with the Constitution; or (b) a decision, action or failure to act in relation to the exercise of a public function in order to determine- (i) its lawfulness; (i1) its procedural fairness; (iii) its justification of the reasons provided, if any; or (iv) bad faith, if any, where a right, freedom, interests or legitimate expectation of the applicant is affected or threatened. (2) A person making an application for judicial review shall have sufficient interest in the matter to which the application relates. Submissions by the Claimant The Claimant submitted that Dr. Renderson Joseph Gombwa has sufficient interest in this matter by reason of being its trustee as per its Constitution to commence these proceedings on its behalf. The Claimant further contended that the High Court of Malawi in Civil Cause No. 301 of 2020 which was before Madise J (as he then was), found Dr. Renderson Joseph Gombwa to be one of the three surviving trustees of the Claimant, namely, G. S. Moyo, Dr. R. J. Gombwa and Mr. P. A. Chitsime. A copy of the decision was not made available to this Court. 19 [86] [87] [88] The Claimant also argued that it had legitimate expectations that the Defendant would follow due process of the law in dealing with an application for incorporation of a trust, whose name resembles its name, and that the Defendant would in any case, have referred to the Claimant in the event of any doubts or objections, actual or perceived. On the other hand, the Claimant (as represented by Pastor Tony Yolamu Nyirenda) submitted that Dr. Renderson Joseph Gombwa did not have sufficient interest in this matter because during cross examination he told the Court that he has never attended any meetings of the Claimant since the year 1990. He had no minutes of the Board of Trustees since the year 1990. Further, following the submission of the returns of the trustees as exhibited in “TYN1” and “TYN2” with the Department of Registrar General, Dr. Renderson Joseph Gombwa is no longer a trustee. Dr. Renderson Joseph Gombwa failed to prove that he is the chairperson of the Board of Trustees of the Claimant and that therefore he did not have sufficient interest in the matter. It was also contended that Dr. Renderson Joseph Gombwa, failed to prove to the Court that he was an initial trustee of the Claimant. In cross examination, he conceded that paragraphs 6 and 7 of the factual background of his Sworn Statement in Support of the application for Judicial Review were untrue as the initial trustees were Merle Leon Mills, Alexander Walton Austen, Norman Lavern Doss, Saul Master Samuel, and Gerald Lexien Cullum as stated in paragraph 11 of the Sworn Statement in Opposition to the application for Judicial Review of Pastor Tony Yolamu Nyirenda and exhibit, “TYN4”. 20 [89] [90] The return of trustees in exhibit “TYN5” shows the trustees of the Claimant as of to-date. The document speaks for itself. New trustees were duly appointed and their appointment was duly notified to the Department of Registrar General in terms of Rule 5 of the Trustees Incorporation Rules. There is no document that shows that Dr. Renderson Joseph Gombwa is a trustee of the Claimant. There is nothing on record that supports the application for judicial review by Dr. Renderson Joseph Gombwa. He is not a trustee, real or imagined. He has no sufficient interest to pursue the judicial review in this Court. It was further submitted that by virtue of Clause 27 of the Constitution of the Registered Trustees of the Seventh Day Association (Malaw1) all trustees shall retire from office. The fixed term for trustees is two years and upon expiring of such, all trustees retire pending a meeting for election of trustees. It is inconsistent with Clause 27 for Dr. Renderson Joseph Gombwa to claim that he is still a trustee since he was appointed as a health director and trustee in the year 1990. The term of office of Dr. Renderson Joseph Gombwa had already expired and was not re-elected. He is further not aware of how the trustees managed the business of the Claimant. Dr. Renderson Joseph Gombwa has never attended any meeting since 1990. However, meetings have been held from the time that he retired that have filled vacancies of trustees as evidenced by exhibits “T'YN1” and “T'YN2”. The returns have been filed with the Department of Registrar General. Accordingly, Dr. Renderson Joseph Gombwa lacks sufficient interest in terms of Order 19, rule 20 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017, so it was submitted. 21 [91] Sufficient interest or /ocus standi is a condition precedent that must be satisfied by a claimant before they can obtain a remedy that they seek by way of judicial review proceedings. This is clear from Order 19, rule 20 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017.7 This means that the Court must be satisfied that a claimant has sufficient interest at the permission stage as well as at the hearing stage. In other words, sufficient interest remains an enduring question throughout the judicial review proceedings. Locally, this proposition is exemplified by the decision of the Supreme Court of Appeal for Malawi in The State and Chaponda and another, ex-parte Mr. Charles Kajoloweka and others? [92] Ordinarily, judicial review hearings are conducted on the basis of written material and submissions made to the court. However, there are instances, though rare, where the court will order witnesses to attend the hearing for cross-examination.’ In this case, each side of the Claimant had already filed notices to cross-examine a deponent. Both deponents were also present in court during the hearing. It is for that reason that this Court allowed cross- examination in this matter. [93] It was argued that Dr. Renderson Joseph Gombwa has /ocus standi in these proceedings on account of two reasons. First, by reason of Clause 27 of the Constitution of the Registered Trustees of Seventh Day Adventist Association 2 See also: R -vs- Inland Revenue Commissioners, ex-parte National Federation of Self Employment and Small Businesses Limited [1982] AC 617. 3 MSCA Civil Appeal No. 5 of 2017 (Unreported). * See for instance, (R (Wilkinson) -vs- Responsible Medical Officer Broadmoor Hospital [2002] 1 WLR 419. 22 (Malawi). Second, that the High Court in Civil Cause No. 301 of 2020 found him to be one of the three surviving trustees along with G. S. Moyo and Mr. P. A. Chitsime. [94] There are a few observations to be made in relation to Dr. Renderson Joseph Gombwa’s Sworn Statement in Support of the application for Judicial Review. The first is that he deponed in paragraph 6 of the said Sworn Statement that the Claimant herein was incorporated as a trust on 23 June, 1967. However, his own exhibit, “RG2” a copy of the certificate of incorporation for the Claimant bore a date of 23 June, 1970 as a date of incorporation of the trust. Dr. Renderson Joseph Gombwa only changed this position when he was confronted on it during cross-examination.° [95] The second observation to be made is that in the same paragraph 6 of his Sworn Statement referred to above and paragraph 7, he deponed that he and eight (8) others were the initial or original trustees of the Claimant. He also maintained this fact during cross-examination.° However, his own exhibit marked as, “RG1” a copy of a return for trustees submitted to the Department of Registrar General showed that he was appointed as a trustee on 1* April, 1990. He also confirmed this position during cross-examination.’ This means that Dr. Renderson Joseph Gombwa only became a trustee of the Claimant twenty (20) years after it had been incorporated. It follows therefore that he was not among the initial or original trustees of the Claimant as deponed in his Sworn Statement and maintained during cross-examination. The fact of > See Paragraph 43 above. ° See Paragraph 44 above. 7 See Paragraph 45 above. 23 [96] [97] [98] the matter is that initial or original trustees are those that appear in the 1970 Constitution of the Claimant which was exhibited and marked as, “TYN4” to the Sworn Statement in Opposition to the application for Judicial Review made by Pastor Tony Yolamu Nyirenda. The fact that Dr. Renderson Joseph Gombwa only became a trustee after 20 years when the Claimant was incorporated means that trustees of the Claimant were being elected or appointed and then retire from office from time to time and new cohorts would also be elected or appointed. From this background alone, it goes against common sense for Dr. Renderson Joseph Gombwa to claim that only him and two other trustees remained trustees since their election or appointment in the year 1990 to the year 2021. Actually, it also does not make legal sense. This Court fully agrees with the submission made by Advocate Marshal Chilenga that the starting point in understanding Clause 27 of the Constitution of the Registered Trustees of the Seventh Day Adventist Association (Malaw1) of 1970 is that at annual general meetings biannually, a// members of the Board of Trustees shall retire (Emphasis supplied). The assumption to be made therefore 1s that Dr. Renderson Joseph Gombwa retired as a trustee at the end of his term of office. Clause 27 of the aforesaid Constitution continues to the effect that if at any meeting at which an election of trustees ought to take place, the places of the retiring trustees are not filled up, then, the retiring trustees or such of them as shall not have had their places filled up, shall be deemed to have been re- elected at such meeting. The question is, at which meeting or meetings was the place of Dr. Renderson Joseph Gombwa as a retiring trustee not filled up for him to be deemed to have been re-elected from the years 1990 to 2021? 24 The golden rule in evidence is that he who asserts must prove.* There is nothing in his evidence before this Court that answers or proves this question. In fact, according to his own words, he has not attended any annual general meetings or sessions since the year 1990.2 Furthermore, during cross- examination, Dr. Renderson Joseph Gombwa claimed to have served as a trustee from the year 1990 to the year 2021.'° Asked whether he had made any return to the Department of Registrar General in the year 2021 that tended to show that he was a former trustee, he said he did not make any but other people did and that his name was there on the paper.'! The only return for the trustees of the Claimant that was filed with the Department of Registrar General for the year 2021 was filed on 3 May, 2022 and it is exhibit marked as, “TYN2”. On former trustees, it has three names. These are, Frackson Kuyama, Innocent Chikomo and Evison Dambula. Clearly, Dr. Renderson Joseph Gombwa’s name was not on the paper (return) as he had claimed. This leaves this Court with one inescapable conclusion, which is that, Dr. Renderson Joseph Gombwa was never re-elected as a trustee of the Claimant after his first term had expired as he did not proffer any evidence of any meeting or meetings at which his place as a retiring trustee was never filled up for him to be deemed to have been re-elected as a trustee of the Claimant. Similarly, Dr. Renderson Joseph Gombwa has not been able to demonstrate to this Court that he is the chairperson of the Board of Trustees of the Claimant. 8 See Prof. Arthur Peter Mutharika et al -vs- Dr. Saulos Klaus Chilima et al: MSCA Constitutional Appeal No. 1 of 2020 (Unreported). ? See Paragraph 51 above. 10 See Paragraph 53 above. 'l See Paragraph 54 above. 25 [99] [100] [101] This Court now moves to the second limb of the argument that Dr. Renderson Joseph Gombwa has /ocus standi in this matter because the High Court in Civil Cause No. 301 of 2020 found him to be one of the three surviving trustees of the Claimant. The parties of the case were not cited to this Court by the learned Advocate, Mr. Raphael Joseph Mhone. As already stated elsewhere, a copy of the decision was also not made available to this Court. However, an effort was made to find the case using the register at the Civil Registry but it did not yield any positive result. As a result, this Court did not have an opportunity to read the decision to appreciate the reasoning of the Court in that case. In that case, this Court is unable to follow what was alleged to have been held therein without having read it. In any case, it being a decision of a co-ordinate jurisdiction, this Court is not legally bound to follow it. This Court does not agree with both Advocates on their submissions on the question of /ocus standi of Dr. Renderson Joseph Gombwa. In this Court’s understanding, /ocus standi concerns a party to a proceeding. Dr. Renderson Gombwa 1s not a Claimant in this matter. The Claimant is The Registered Trustees of the Seventh-Day Adventist Association (Malawi) which is a body corporate. The Claimant had and continues to have sufficient interest in this matter as it has legitimate expectation that the Defendant would follow due process of the law in dealing with an application for incorporation of a trust, whose name closely resembles its name and which trust still remains undissolved to date. The real issue is whether or not Dr. Renderson Joseph Gombwa is the right person to represent the Claimant, not whether he has Jocus standi. The 26 [102] [103] [104] question of locus standi of Dr. Renderson Joseph Gombwa would only have arisen if he was a party to these proceedings, which he is not. Consequently, in view of the foregoing, this Court holds that Dr. Renderson Joseph Gombwa was not the right person to represent the Claimant in these proceedings as he has dismally failed to prove, on a balance of probabilities, that he is the Chairperson or indeed a trustee of the Claimant. This disposes of the first issue in this matter. The second issue for the Court’s consideration is whether or not Pastor Tony Yolamu Nyirenda 1s the chairperson of the Board of Trustees of the Claimant. There are also a few observations to be made regarding the Sworn Statement in Opposition to the application for Judicial Review filed by Pastor Tony Yolamu Nyirenda. The first is that in paragraph 2 thereof, he depones that he is the President of the Seventh Day Adventist Association and Malawi Union Conference of Seventh Day Adventist in Malawi.” A similar mistake was also made in relation to paragraphs 4, 10 and 14 where he deponed that there 1s no charitable association named The Registered Trustees of Seventh Day Adventist Association (Malawi) but Seventh Day Adventist Association.’* The fact of the matter is that according to Clause 1 of the Constitution of the Claimant of 1970 exhibited and marked as “T'YN4’, the proper name is Seventh Day Adventist Association (Malawi). In addition, exhibit marked as, “TYN3” a copy of the certificate of incorporation states that the name is 7he 12 See Paragraph 21 above. 13 See Paragraph 27 above. 27 Registered Trustees of the Seventh Day Adventist Association (Malawi). Again, during cross-examination, Pastor Tony Yolamu Nyirenda told the Court that the genuine name of the Claimant and the institution that he represents is the one that has the words, “Association (Malawi)”.'* [105] The second observation is that in paragraph 8 of his Sworn Statement, Pastor Tony Yolamu Nyirenda deponed that Dr. Renderson Joseph Gombwa was appointed in his capacity as a medical doctor from the Seventh Day Adventist Church and he was duly replaced by Dr. Chitsa Banda. There is produced a copy of the return of the trustees of the Claimant exhibited and marked as, “TYN2”. However, a careful look at the said return shows that there is no such a name on the list of trustees. The only name bearing the title, “Dr.” is that of Annie Msosa. [106] The third observation to be made is that in paragraph 9, Pastor Tony Yolamu Nyirenda deponed that the incorporation of Zhe Registered Trustees of Seventh Day Adventist Church (Mw) was a nullity as stated in the Sworn Statement of Neverson Chisiza. The fact of the matter is, there is no Sworn Statement made by Advocate Neverson Chisiza on record. The only Sworn Statement on record on the part of the Defendant was made by the Registrar General, Mr. Chikumbutso Namelo.!° [107] In passing, and even though this Court has already made a finding that Dr. Renderson Joseph Gombwa is not the nght person to represent the Claimant \4 See Paragraph 82 above. '5 See Paragraph 36 above. 28 [108] in this matter, the Court notes that there were factual errors committed by both Dr. Renderson Joseph Gombwa and Pastor Tony Yolamu Nyirenda in their respective Sworn Statements as has been demonstrated in this judgment. The good thing is that some were picked by the Advocates and were somewhat corrected during cross-examination. The Court would therefore be slow to impute any ill intentions on any person. Nevertheless, this Court reiterates the sentiments it made in Re Edward Gwazantini (Deceased)'* and several other decisions of the superior courts!’ that care should be taken by advocates when drafting or preparing court documents. Court documents must be proof-read and ensure that sworn statements and exhibits are speaking to each other. The Court now turns to the second issue in this matter. The uncontroverted evidence before this Court shows that Pastor Tony Yolamu Nyirenda is the current President of the Seventh Day Adventist Association (Malawi). Exhibit marked as, “TYN2” to his Sworn Statement is a return of the Registered Trustees of Seventh Day Adventist Association (Malawi) elected at the general session (meeting) held at Mponela in Dowa District on 16 November, 2021. His name is on number | as a trustee. As is the case with both returns that have been tendered in evidence in this matter, namely, “T'YN1” and “TYN2”, the first name 1s always that of the chairperson of the Board of Trustees. The immediate past chairpersons according to these ‘6 Probate Cause No. 470 of 2020 (High Court of Malawi) (Principal Registry) (Family and Probate Division) (Unreported). '7 Re Chrispine Ng’oma (Deceased), Probate Cause No. 135 of 2019 (High Court of Malawi) (Mzuzu District Registry) (Family and Probate Division) (Unreported); Re Father D. S. Chitete (Deceased), Probate Cause No. 56 of 2023 (High Court of Malawi) (Lilongwe District Registry) (Unreported), Anderson Katanga -vs- Peoples Trading Centre, MSCA Civil Appeal No. 81 of 2016 (Sitting at Lilongwe) (Unreported). 29 [109] [110] [111] two returns were Pastor Frackson Kuyama and Pastor Dr. Sosten Mfune. This Court therefore has no difficulty to find that Pastor Tony Yolamu Nyirenda is the current chairperson and trustee of the Board of Trustees of the Claimant. He is therefore the right person to make a sworn statement on behalf of the Claimant as he did. The Court now turns to the third issue. This Court would be very slow to penalize Dr. Renderson Joseph Gombwa for the finding that it has made that he was not the right person to spearhead the prosecution of this matter. It appears to this Court that he may have had good intentions to protect the nghts, interests and legitimate expectation of the Claimant save that he was perhaps misguided on the law. In any event, he is not a party to these proceedings. In short, this Court declines to make an order that Dr. Renderson Joseph Gombwa personally bears the costs of these proceedings. This disposes of the third issue. The fourth issue to be considered by this Court is whether or not the decision of the Defendant to incorporate and issue a certificate of incorporation to Zhe Registered Trustees of the Seventh Day Adventist Church (Mw) was lawful and unreasonable in the Wednesbury sense. The power or jurisdiction of the High Court to review any action or decision or failure to act in relation to the exercise of a public function by Government or public officers in order to determine their lawfulness, procedural fairness, justification of the reasons provided, if any, or bad faith where a right, freedom, interests or legitimate expectation of the claimant 1s affected or threatened has never been in question.'® 18 See Order 19, rule 20 (1) (b) of the Courts (High Court) (Civil Procedure) Rules, 2017. 30 [112] It is therefore incumbent upon public authorities when making their decisions to act only in accordance with the law. Where they act outside the law, or fail to act, their decisions will be amenable for judicial review by the High Court when so moved by persons who have sufficient interest in the matter. In the case of Associated Provincial Picture Houses Limited -vs- Wednesbury Corporation” it was put better when the Court of Appeal stated that: Decisions of persons or bodies which perform public duties or functions will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the Court concludes that the decision is such that no person or body directing itself on the relevant law and acting reasonably could have reached that decision. [113] The law is very clear on the requirements for incorporation of trusts. Section 3 (1) of the Trustees Incorporation Act as follows: Trustees of any charity for religious, educational, literary, artistic, scientific or public charitable purposes or of any association of persons for any religious, educational, literary, artistic, scientific, social, athletic or charitable purpose or for any purpose which in the opinion of the Minister is for the benefit or welfare of the inhabitants of Malawi or any part thereof may apply in the prescribed manner to the Minister for a certificate of incorporation of the trustees of such charity or association as a corporate body. (Emphasis supplied) [114] Rule 2 of the Trustees Incorporation Rules provides that- (1) In the case of an application under section 3 by trustees of an association, the application shall be made to the Registrar and shall — 19 11948] 1 KB 223. 3] (a) be in Form A in the First Schedule; (b) be accompanied by two copies of the constitution certified by the secretary or other principal officer of the association, and a copy so certified of the minutes of the meeting of the association at which the trustees were authorized to apply for incorporation. (3) Every application shall be accompanied by the device in quadruplicate of the proposed common seal and the prescribed fee. (4) The signatures of the applicants and the statements in the application shall be verified by declaration before a legal practitioner, commissioner for oaths, mayor or District Commissioner or in such other manner as the Registrar shall require. [115] Rule 3 of the Trustees Incorporation Rules provides that- On receipt of an application, the Registrar shall examine the documents presented to him and shall report to the Minister whether- (e) the name proposed for the corporate body is identical with a registered business name, or that by which a company or body corporate 1s already registered or so nearly resembles such name as to be calculated to deceive. [116] Where the law gives ministerial powers to take action such as a review and he or she fails to do so, such inaction leads to unlawfulness. This may be implied from Order 19, rule 20 (1) (b) of the Courts (High Court) (Civil Procedure) Rules, 2017.7° 20 See also for instance, Chunga -vs- Attorney General [1996] MLR 160. 32 [117] It is clear in this matter that there was no review of any documents by the Defendant to satisfy himself that all the legal requirements for incorporation of a trust had been met. In fact, the Registrar General himself swore a Sworn Statement to the effect that the certificate of incorporation for The Registered Trustees of the Seventh Day Adventist Church (Mw) 1s fake. He deponed that it is a work of forgery and that some officers in his department are being prosecuted for it, even though he failed to adduce any evidence for the alleged arrest and prosecution before this Court. [118] Pastor Tony Yolamu also told this Court that there was no agreement on the part of the Claimant to come up with a new body corporate. He also told the Court that there are no trustees of this disputed fake entity and prayed to the Court that the decision to incorporate it be quashed. [119] Accordingly, in view of the foregoing, this Court finds that the decision to incorporate and issue a certificate of incorporation to The Registered Trustees of the Seventh Day Adventist Church (Mw) was unlawful and unreasonable in the Wednesbury sense in that no reasonable Minister properly directing himself on the law would have incorporated and issued it without reviewing and ensuring that the application, if there was one, satisfied all the requirements under the Trustees Incorporation Act and the Trustees Incorporation Rules. This Court grants a like order to certiorari quashing the Defendant’s decision to incorporate or issue a certificate of incorporation to The Registered Trustees of the Seventh Day Adventist Church (Mw) ?' 21 The diction, “like order to certiorari” is being used advisedly in this judgment because that is the power that is bestowed upon this Court under section 16 (2) of the Statute Law (Miscellaneous Provisions) Act, Cap. 5:01 of the Laws of Malawi. Order 19, rule 21 of the Courts (High Court) (Civil Procedure) Rules, 2017 departs from the diction used in the Statute Law (Miscellaneous Provisions) Act and suggests that one could simply apply for a quashing order. Where there is such 33 The Court also declares that the incorporation is a nullity and all steps taken by any such entity on the basis of such incorporation stands nullified. [120] The serious nature of the business that is transacted at the Department of Registrar General and the trust and confidence that the public reposes in their products and services requires that it ups its game. Measures should be taken to ensure quality control in its output. What happened at the said Department leading to these proceedings 1s, to say the least, embarrassing. [121] To a greater extent, issues number four and five have now become irrelevant and are no longer worthy this Court’s consideration. [122] Costs are awarded in the discretion of the Court as is provided by law. The Claimant having succeeded in these proceedings is awarded costs of the action. [123] Any party that is dissatisfied with this Judgment 1s at liberty to appeal to the Supreme Court of Appeal for Malawi. [124] Made in open Court this 27" day of October, 2023 in Blantyre, Malawi. ii las M. D. MAMBULASA JUDGE an inconsistency, it is obviously the statute that takes precedence over subsidiary legislation. See Jam Willem Akster -and- The State, Centre for Human Rights, Education, Advice and Assistance: Constitutional Referral Cause No. 02 of 2021 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported). 34