S (on application of Itaye & 15 others) v Office of the Ombudsman & Malawi Communications Regulatory Authority (Judicial Review Cause 23 of 2021) [2025] MWHCCiv 10 (22 May 2025)

IN THE HIGH COURT OF MALAWI REPUBLIC OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION JUDICIAL REVIEW CAUSE NO. 23 OF 2021 (Before Honorable Justice Mambulasa) BETWEEN: THE STATE (ON THE APPLICATION OF MR. GODFREY ITAYE & 15 OTHERS)………………………………………………………..…. CLAIMANTS -AND- OFFICE OF THE OMBUDSMAN……………………………1ST DEFENDANT -AND- MALAWI COMMUNICATIONS REGULATORY AUTHORITY (MACRA)…………………………...………............................2ND DEFENDANT CORAM: HON. JUSTICE MR. MANDALA D. MAMBULASA Mr. Yamikani Ben Kamoto, Advocate for the 1st Defendant Ms. Caroline Machado, Official Court Interpreter/Court Clerk ORDER MAMBULASA, J Background [1] On 31st January, 2025 this Court delivered its judgment in this matter in which it found for the Claimants. [2] On 16th May, 2025 the 1st Defendant filed a without notice motion for leave to appeal to the Supreme Court of Appeal against the decision of this Court rendered on the aforesaid date. [3] The motion was taken out under section 21 of the Supreme Court of Appeal Act1 as well as under Order III, rule 3 (1) of the Supreme Court of Appeal Rules. 1 Cap. 3:01 of the Laws of Malawi. [4] The motion was supported by an affidavit2 made by Yamikani Ben Kamoto, a Senior Legal Officer in the Office of the 1st Defendant. Issue for Determination [5] The only issue for determination before this Court is whether or not it should grant leave to the 1st Defendant to appeal to the Supreme Court of Appeal. The 1st Defendant’s Case [6] The record of the Court will show that the Claimants commenced judicial review proceedings in the High Court, Principal Registry against the 1st Defendant’s findings in her report titled, Secure in Deception - Malawi Communications Regulatory Authority which was released on 10th May, 2021. [7] The report was released following some persons lodging an anonymous complaint alleging that the recruitment of Mr. Godfrey Itaye as the Post Master General and subsequently as the Director General of the Malawi 2 It should be noted that under the Supreme Court of Appeal Act and the Supreme Court of Appeal Rules, the terminology of sworn statement does not apply there. It only applies in the High Court under the Courts (High Court) (Civil Procedure) Rules. Communications Regulatory Authority without interviews was marred with nepotism, cronyism, tribalism and abuse of office. [8] The Court delivered its judgment in the matter on 31st January, 2025 and among other things, held that the 1st Defendant wrongly assumed jurisdiction to investigate the anonymous complaint and to that effect, the status quo was being reversed. [9] Being dissatisfied with the judgment in this matter, the 1st Defendant filed a Notice of Appeal with this Court on 14th March, 2025. A copy of the said notice was exhibited and marked as, “YBK1”. [10] Further, the 1st Defendant filed with this Court Skeleton Arguments on Appeal on 4th April, 2025. A copy thereof was exhibited and marked as, “YBK2”. [11] The 1st Defendant is of the view that the said decision was made in error for the following reasons: 11.1 The learned judge erred in law in finding that the 1st Defendant cannot exercise jurisdiction over complaints lodged by anonymous persons when such an interpretation would not be in the furtherance of the clear and express provisions of section 123 (1) of the Constitution and the Ombudsman Act as there would be no remedy for such persons before courts of law. 11.2 The learned judge erred in law in finding that the person that must lodge a complaint with the 1st Defendant must be the very person that has suffered injustice, and/or that any other person who has not suffered injustice would not have sufficient interest or locus standi to lodge a complaint with the 1st Defendant. 11.3 The learned judge erred in law in holding that reference to an injustice in section 126 of the Constitution can only be that which was suffered by a person who lodged a complaint under section 123 (1) of the Constitution. 11.4 The learned judge erred in law in holding that the wording of section 15 (2) and 46 (2) of the Constitution are no stricter than the wording of section 123 (1) of the Constitution as the former relates to the manner of enforcement of human rights and freedoms enshrined in Chapter IV of the Constitution. 11.5 The Court below erred in law in its analysis of the powers of the 1st Defendant by failing to consider section 123 (1) of the Constitution as a section which provides for the general powers of the 1st Defendant. 11.6 The Court below made an error and misdirection of law in its construction of section 123 of the Construction by failing to recognize and uphold the discretion of the Ombudsman to determine whether there is a remedy reasonably available to a complainant in deciding if an investigation should be undertaken. 11.7 The Court below made an error of law when it clearly departed from a decision of the Supreme Court of Appeal in The State and The Ombudsman, ex- parte The Principal Secretary for Finance and 2 others MSCA Civil Appeal No. 24 of 2017 which decision was binding on it and it did so without any or any good reason known to the law. 11.8 The learned judge erred in law in ordering that terminal benefits be paid to the Claimants when the court itself: (i) never assessed the validity of their contracts; and (ii) acknowledged that the 1st Defendant had a genuine cause to carry out an investigation at the Malawi Communications Regulatory Authority. 11.9 The Court below erred both in law and fact when it handed down a judgment which was against the weight of the evidence before it. [12] That in filing the documents mentioned in paragraphs 9 and 10 with the Court, the 1st Defendant was under the impression that since the matter was commenced as a judicial review application and/or is a judicial review matter and the Court’s judgment of 31st January, 2025 being a final judgment in open court, there was no need to obtain leave to appeal. [13] That however upon reflection and out of caution, the 1st Defendant would like to still obtain leave to appeal in this matter. [14] That appeals to the Supreme Court of Appeal from the decision of the High Court like in this case must be brought within 6 weeks. [15] That although the 1st Defendant did not obtain leave to appeal within the prescribed period for filing a Notice of Appeal, the 1st Defendant was diligent enough hence, she filed a Notice of Appeal and Skeleton Arguments on Appeal within the prescribed period. [16] That the appeal raises very important issues as regards the jurisdiction of the 1st Defendant which if determined will give an opportunity to the Supreme Court of Appeal to guide the 1st Defendant as well as the Courts regarding how the 1st Defendant should exercise its jurisdiction and/or Malawians on how they should approach the 1st Defendant, being a public office and governance institution created by the Constitution. [17] That the 1st Defendant is therefore asking this Court to grant her leave to appeal and the same will not prejudice the Claimants in any way since they were already served with the Notice of Appeal. [18] That it is in the interests of justice and for the wider good of the 1st Defendant and the nation at large that leave to appeal be granted. The Law [19] The starting point is section 123 (2) of the Constitution. It states as follows: Notwithstanding subsection (1), the powers of the office of the Ombudsman under this section shall not oust the jurisdiction of the courts and the decisions and exercise of powers by the Ombudsman shall be reviewable by the High Court on the application of any person with sufficient interest in a case the Ombudsman has determined. [Emphasis supplied] [20] Section 21 of the Supreme Court of Appeal Act provides as follows: An appeal shall lie to the Court from any judgment of the High Court or any judge thereof in any civil cause or matter: Provided that no appeal shall lie where the judgment (not being a judgment to which section 68 (1) of the Constitution applies) is- (a) an order allowing an extension of time for appealing from a judgment; (b) an order giving unconditional leave to defend an action; (c) a judgment which is stated by any written law to be final; (d) … And provided further that no appeal shall lie without the leave of a member of the Court or of the High Court or of the judge who made or gave the judgment in question where the judgment (not being a judgment to which section 68 (1) of the Constitution applies) is- (a) a judgment given by the High Court in exercise of its appellate jurisdiction or on review; (b) … [21] Section 23 of the Supreme Court of Appeal Act provides for time for appealing. Subsection (1) provides as follows: If a person desires to appeal under this Part from the High Court to the Court, he shall, in such manner as may be prescribed by the rules of court, give notice to the Registrar of the High Court of his intention to appeal- (a) within 14 days of the judgment from which he wishes to appeal if such judgment is an interlocutory order; (b) within six weeks of the judgment from which he wishes to appeal in any other case. (2) The Court may extend the time for giving notice of intention to appeal under this Part, notwithstanding that the time for giving such notice has expired. [22] Order III, rule 3 of the Supreme Court of Appeal Rules provides for application for leave to appeal. It reads as follows: (1) Where an appeal lies only by leave of the Court or of the Court below any application to the Court for such leave shall be made ex parte by notice of motion. (2) If leave to appeal is granted by the Court or by the Court below the appellant shall file a notice of appeal: Provided that nothing in this subrule shall be deemed to prohibit an appellant from filing a notice of appeal prior to the hearing of the application for leave to appeal. Application of the Law to the Facts [23] Section 123 (2) of the Constitution is very clear that the decisions and exercise of powers by the Ombudsman shall be reviewable by the High Court on the application of any person with sufficient interest in a case the Ombudsman has determined. [24] In this case, it is not in dispute that this Court rendered its judgment on 31st January, 2025. That judgment was made in exercise of its powers of review as provided for under section 123 (2) of the Constitution. [25] The second proviso to section 21 of the Supreme Court of Appeal Act provides that no appeal shall lie without the leave of a member of the Court or of the High Court or of the judge who made or gave the judgment in question given by the High Court in exercise of its appellate jurisdiction or on review. [26] The record shows that the 7th Claimant, Dr. Charles Fodya, filed an application to assess terminal dues payable to him by the 2nd Defendant on 28th April, 2025. The office of the Registrar of the High Court is attending to that application having been directed to do so by this Court on 16th May, 2025 pursuant to Order 25 of the Courts (High Court) (Civil Procedure) Rules. [27] To the extent that the terminal dues payable to the 7th Claimant have not yet been assessed by the Registrar, in terms of the jurisprudence emanating from the upper bench,3 the judgment that this Court rendered on 31st January, 2025 remains inchoate. 3 See for instance, Premium Tama -vs- Mambala & others, MSCA Civil Appeal No. 72 of 2016 (Unreported); JTI Leaf (Malawi) Limited -vs- Kad Kapachika, MSCA Civil Appeal No. 52 of 2016 (Sitting at Lilongwe) (Unreported); Aon Malawi Limited -vs- Garry Tamani Makolo, MSCA Civil Appeal No. 16 of 2016 (Unreported); Toyota Malawi Limited -vs- Jacques Mariette, MSCA Civil Appeal No. 62 of 2016 (Unreported). [28] The judgment will only be complete after the Registrar has rendered an order on the said assessment in the matter. For this reason, leave to appeal to the Supreme Court of Appeal cannot be granted by this Court at this stage. It is denied. [29] The 1st Defendant is at liberty to take out a fresh motion for leave to appeal before a single member of the Supreme Court of Appeal. [30] Made in Chambers this 22nd day of May, 2025 at Blantyre, Malawi. JUDGE M. D. MAMBULASA 12