Nadhi v Anti-Corruption Bureau (7 of 2010) [2010] MWSC 20 (30 June 2010)

JUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 7 OF 2O1O (Being High Court Principal Registry Misc. Ciuil Application No. 1 1O of 200e) BETWEEN: MOMAHED MUNIF ABDALLAH AI NADHI......... APPELLANT ANTI-CORRUPTION BUREAU. . RESPONDENT and - BEFORE: THE HON. JUSTICE TAMBALA, SC, JA THE HON. JUSTTCE MTAMBO, SC, JA THE HON. JUSTICE TEMBO. SC. JA Katuya assisted by Zambezi, of Counsel for the Appellant Nampota, Director of Anti Corruption Bureau assist..l hrr Mwala, of Counsei for the Respondent Mu.'ale, Chief Larn Clerk Singano (Mrs), Senior Personal Secretary JUDGMENT TEMBO, SC, JA This is an appeal by Mr. Abdullah Al-Nadhi against a High Court ruling dated 26th October, 2OO9, u'hich was made by the learned Manl'ungw&, J, in the matter of Dr. Elson Bakili Muluzi and in the matter of Section 23A of the Corrupt Practices Act. By its ruling, the High Court refused to grant an order staying execution of the seizure warrant dated 20th June, 2009, which the Anti- Corruption Bureau (ACB) had obtained from the High Court, in so far as in its schedule two the seizure warralt related to the property known as Keza Offrce Complex situated on title Number Chichiri 1/ 1, being Piot Number CC1157 (Keza Office Complex). In granting the seizure \ /arrant, to the ACB, to seize Keza Office Complex the High Court also made an order which placed Keza Office Complex under the custody, care and control of the ACB. rn'hereby an5, rents, charges, fees or dues or other monies whatsoever, in respect of Keza Office Complex, were to be paid to the ACB or its agents and that such monies had to be deposited into an interest-earning holding account. B5z that ruling, the High Court also refused the appellant's application for the variation of the seizure warrant so as to strike out Keza Office Complex from the list of properties and assets affected bv the seizure and freezins warrants. The instant appeal is supported by eighteen grounds of appeal. The appellant seeks the follorn'ing reliefs: (a) that the ruling of the lou'er court refusing to vary the seizure and freezing orders and u'arrant dated 20th June, 2009, be reversed; (b) that in place of that ruling, this Court should vary the seizure and freezing orders and warrant by striking out Keza offi.ce Complex from the orders and warrant; and (c) that costs be for the appellant both here and below. The relevant facts and sequence or chronoiogy- of events pertaining to the instant appeal are r.l'ell captured in the appellants skeleton arguments, and they are as follows: On 8th Jul-v, 2005 a restriction notice was addressed to the Land Registrar (Blantyre) and the Commissioner for Lands. The notice was issued under section 23(1) of the Corrupt Practices Act (CPA). The Director of Anti Corruption Bureau restricted the Land Registrar and the Commissioner for Lands from authorizing the sale of Keza Office Complex without his consent. Subsequently, the then owner of Keza Office Compiex, Atupele Properties Limited, applied to the High Court for a reversal or variation of the restriction notice, in question, in so far as it restricted the sale of Keza Office Complex. On 9th November,2OOS, the High Court delivered its ruling bv u'hich it vacated the restriction notice. Besides, by that ruling, the Minister responsible for Land matters was ordered to girre his consent for the transfer of the titie in Keza Office Complex from Atupeie Properties Limited to the intended purchaser u'ithin a period of seven days from the date of the ruling, thus, 9th Noverrrber, 2005. The iearned Judge declined an application for stay of the ruling which the ACB made. Subsequently, the ACB appeaied to this Court ooeinef fire Hioh (-.rrrf rrrlino 6f lth j November,2005, by which the lJigh Court vacated the restriction notice and ordered the Minister responsible for land matters to grant consent for the transfer of title tnKeza Ofilce Complex. On 14th November, 2005, the ACB made a fresh application for stay of the High Court's ruling of Qth 11ou'"*ber, 2005, u'hich our learned brother Honourabie Justice of Appeal Tambala si.tting as a single member of this Court, dismissed on 16th November, 2005. In essence, Justice of Appeal Tambala thereby also approved and ratified the order earlier made b1z the High Court requiring the Minister responsible for land matters to grant his consent for the transfer of title tn Keza Office Complex rvithin the time specified, then, by the High Court. Thereafter, in Februar)', 2006, Atupele Properties Limited sold and transferred title tn Keza Office Complex to the appellant in the instalt case at a price of K285 million. On 2"d March, 2007, this Court delivered its judgment on the substantive appeal against the High Court ruling of 9th November, 2005. This Court's ruling was on points of lau, which were raised for its determination. We dare say, in that regard, that our ruling did not in anlu'ay whatsoever and howsoever interfere, and u.as not at all meant to interfere, rn'ith the High Court's ruling and orders of 9th November, 2005. Thereafter, the matter went to rest until 19th June,2009, when the ACB appiied for and obtained, ex-parte, an order and seizure u,arrant which necessitated the application by the appellant for variation thereof, and which eventually ied to the decision of the High Court against which the instant appeal lies. To begin with, it is our considered view that aithough the appellant has raised eighteen grounds of appeal. his appeal, in the main. can, and should without more. readily be considered and determined on the basis of six grounds as foliou's: That - l-\ -.1 o. ).2 J:TJ the learned Judge erred in lau' and fact in holding in effect that by its judgment dated 2"d March, 2OO7 tn the case of ACB -v- Atupele Properties Limited, the Supreme Court reversed the rulings of the High Court nnd the Srrrrrcrne Cnrrrl cittino eq. a einol e rncrnher rr rrrvrrrvvr, the learned Judge erred in iau' in failing to hold that r.r'hen the respondent applied ex-parte for a seizure warrant and stated in its supporting affidavit that the Srrnreme Corrrt had reversed the rrrlins of the Hish Court and that of a single member of the Supreme Court in the case of ACB -v- Atupele Properties Limited, that, that statement amounted suppression of a material fact; to 3:14 rhe learnerl ,lrrdrre erred in fact and lau'in hoidins that Keza Office Complex was dissipating u'hen there was no evidence of dissioation: 3: i6.5 3:17 the learned Judgc erred in law in holding that there was technicai dissipation of I{eza Office Complex; the property (Keza Office Complex) is in no way dissipating despite the learned Judge's erroneous reasoning fo the effect that the nronertr' "has technically dissipated"; and the learned Judge erred in lau' in failing to hold that the sale and transfer of title in Keza Office Complex was executed under a court order which was never set aside, that the rights of the appeliants were not iiable to be defeated and were free from all other interests and claims whatsoever includins the ACB's claims. We start with ground 3:17. We are in complete agreement with the contention and submission of the learned Counsel for the appellant on this point. The Registered Land Act (Cap. 58:01) in section 25, on rights of the proprietor, provides as foilows - The right of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or b1' an order of the Court, shall be rights not liable to be defeated except as provided in this Act and the Land Act and shall be held by the proprietor, free from all other interests, and claims whatsoever, but subject - to the leases, charges and other encumbrances, if an5', shown in the register; and (a) (b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 27 not to require noLing on the register - Provided that (i) nothing in this section shali be taken to relie'e a nronriel nr rLrruvv frnrn nn\/ rirrrv qrrJ LfLlLJ q Ut l/rvlJrrLLvr J obligation to which he is subject as a trustee, or as a famill' representative; ( ii) the registration of any person under this Act shall not confer on him any right to any minerals or to an]' mineral oiis as defined in the Mining Act and the Mining Regulations (Oil) Act respectively unless the same are expressh' referred to in the resister. We must observe, without more, that the circumstances of the instant case have no reievance to section 27. We are in agreement with the submission of Counsei for the appeilant that the appellant had purchased Keza Office Complex from Atupeie Properties Limited after both the High Court and this Court. in the capacitv of its single member as earlier observed, had aliowed the disposal of Keza Office Complex, by refusing to allow the ACB to continue restricting the disposal of Keza Office Complex through a restriction notice. In these circumstances, we concur with learned Counsel for the appellant that it would be absurd, unreasonable and indeed quite unfair to now allou' seizure of Keza Office Complex and freezing of the income therefrom u'hen Keza Offlce Complex is in the hands of a third party who is not connected r.l'ith the offences under the Corrupt Practices Act and indeed a thlrd part1, u'ho acquired Keza Office Complex upon furnishing valuabie consideration, in the sum of MK285 million. We in that respect, again, observe that the sale under court order had been effected when the High Court and this Court had vacated, so to speak, the restrlction notice which the ACB had earlier on obtained. In the circumstances, the appellant was under no restraint of any kind in regard to which he had to guard against, even the fact that there were court proceedings reiating to Keza Office Complex. The effecting of the sale had the prior authorization of the Court. We would on that ground alone al1ow the appeai. Be that as it may, it is also the considered vieq' of the Court that Keza Office Complex is not dissipating, in that it is intact. The notion of "technicai dissipation" espoused b1' thc learned Judge in his Judgment, we reason, does not have any grounding in the law. Besides we must say it again, as noted above, that this Court has not at any time by its decision, not even that in the ACB -v- Atupele Properties Limited delivered on 2nd March, 2007, reversed the rulings of the High Court and of a single member of this Court in regard to the vacation of the restriction notice in question. Thus, it remains a firm view of this Court that the sale of Keza Office Compiex was ald is still sanctioned by Court in that regard. Finally, it is our firm view that the ACB is guilty of inordinate deiay in its effort to prosecute the criminal matter in question. In the circumstances, it would be wrong for the Court to reinstate the restriction notice which would operate to the prejudice of the appellant, who is a bona fide purchaser of Keza Office Complex u,ith adequate consideration. in the circumstances and for all the reasons we have expressed hereinabove, \ /e allour the appeal in its entirety. Costs are for the appellant both here and beiow. We so order. For the avoidance of doubt, our Judgment is that the ruling of the lower court refusing to vary the seizure and freezing orders and rn'arrant dated 20th June, 2OO9, is reversed; that thereby the seizure and freez\ng orders and warrant are varied by striking out Keza Offrce Complex from the list of properties or assets listed therein; that henceforth rents. charges, fees or dues or other monies whatsoever, in respect of Keza Office Complex, sha1l cease to be paid to the ACB, or its agents and that thereby ail such monies so far deposited and held by the ACB or it's agents (i.n such interest-earning account) be forthu'ith paid or restored to the appellant u'ithout further legal process. DELMRED in Open Court this 1"t dav of Julr'. 2O1O at Biantvre. Signed.ll::*. Y,. D. G. Tambala, SC, JA Slgn"O l. J. nntambo, sc,1ft-z- \ \ \rgnPn -*-\ A. K. Tembo, SC, JA i. /--\