State v Inspector General of Police (MSCA Miscellaneous Civil Application 28 of 2023) [2023] MWSC 45 (8 June 2023)

IN THE SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA MISCELLANEOUS CIVIL APPLICATION NO. 28 OF 2023 [Being Judicial Review Case Number 11 Of 2023 At The High Court of Malawi, Principal Registry, Blantyre] BETWEEN THE STATE[ON THE APPLICATION OF RIAZ JAKHURA] N INSPECTOR GENERAL OF ICE RESPONDENT MOHSIN NATHVANI 1%t INTERESTED PARTY JAVID \~ 24 INTERESTED PARTY CORAM: ON. SUS L P CHIKOPA SC JA Go Kalampa, of Counsel for The Applicant/interested parties nda, Senior State Advocate for The Respondent Minikwa [Mr.], Clerk RULING/ORDER The Applicant and the Interested Parties appeared in the court below seeking on the one hand permission to apply for judicial review and on the other suspension of ne the Respondent’s decision to arrest and prosecute them on various charges until the determination of the judicial review. Affidavits were sworn to show that the Respondent’s decision to arrest and prosecute were palpably frivolous, vexatious, absolutely groundless and equal to total harassment and intimidation. The prosecution was in fact alleged to be an abuse of prosecutorial discretion at the behest of a private person seeking to settle private scores with the Applicant. When the parties appeared before the court below it trarngpired that the Respondent’s affidavit in opposition to the Applicant’s was It was not commissioned. The anomaly was brought to the Respo iom. It was however never rectified. The court below, corre¢tly“it i therefore proceeded on the basis that there was no affid in opposition to that of the Applicant. The above notwithstanding the C a to grant the Applicant permission to mount judicial review mgs herein. It also declined to grant is court to make fresh applications relief as set out above. Forest jrecto| orestry] MSCA Civil Case Number 25 of 2021[unreported]. In doing so thi urt proceeds principally on the same material that was before the court below. It is then up to this court to decide whether or not to grant the permission. Or, as is the case in the instant matter, the interim relief. Where it does not it is the end of the road for the litigant. Where this court grants the leave however the matter is then remitted to the court below for the hearing of the judicial review proceedings. The remittal is because this is not a court of first instance and also to < ~, preserve the parties’ right to appeal which would effectively be extinguished if the judicial review proceedings were had in this court. Coming back to the matter before us the first question is whether the Respondent’s decision is judicially reviewable. The second is whether in the instant case permission should be granted to review the same. Lastly whether the interim relief should be granted. Our view has always been that every exercise of public authority sh to review. It explains, in our further view, why our Republican Cénstitution is the ultimate basis of all exercise of public authority. Why g Applying the above to the instant €e permission should be granted a, judi i low. That, inter alia, the Applicant = remedies in the impending criminal take an unduly restrictive view of an application for dicial review. Firstly, in the criminal court the issues of the applicant. Those are not the issues presently. It is sted Parties allege, on facts that the Respondent has chosen not to dispute, that the decision is the product of a flawed exercise of discretion. Secondly it is our most considered view that the court below in hearing and determining the application for permission for judicial review proceeded as if it was hearing and determining the substantive application for judicial review. It, with respect, erred. Its duty was only to determine whether there were prima facie grounds for holding that a judicial review was necessary. Not to determine whether the application for judicial review itself was well founded. See our discussion of the above in the Flatland Timbers case. When all is considered and had the court below approached the application for permission in the fashion we have espoused above we have no doubt that it would have come to the conclusion, like we have done above, that this is a proper case in which permission to commence judicial review proceedings should be granted. It would have noticed for instance that in the absence of an opposing affidavit from the Respondent the Applicant’s/Interested Parties’ case hence the choice to keep it away from j look at it, it makes greater se again we will endeavor not to belabor the issues. In i Chisale v The State MSCA Criminal Appeal Number 33 of the case ve us with no choice. We are still of the same view. We do understand that in the instant case there is no opposing affidavit. We are however alive to the fact that the contents of the affidavit in support of the application before us also contain the deponent’s understanding/interpretation thereof. To that extent we do not think that this is a proper case in which to grant interim relief of the kind prayed for by the Applicant and the Interested Parties. The reasons therefor are the same as the ones we advanced in the Norman Paulosi Chisale case in that if it does turn out that the arrest and prosecution of the * Mee 8 Applicant/Interested Parties was in disregard of the law then compensation/damages would be the better way of redressing those wrongs than an order generally preventing their arrest/prosecution. We do note from the record that the first Interested Party had his passport confiscated in the context of this matter. The same should be returned to him. There are sufficient undertakings by him in the circumstances of this case that make such confiscation unnecessary. On costs they will follow the event at the conclusion of th dicial review proceedings. We order accordingly. Dated at Blantyre this 8th day of June, 2023. ee