S ( On the application Estere Chunga and Mangani Kazembe) v Administrator General and Kazembe (Judicial Review Cause 28 of 2022) [2022] MWHCFam 8 (7 November 2022)

Pe Wy Tee REPUBLIC OF MALAWy CO JUDICIARY , Oe IN THE HIGH COURT oF MALAWI LILONGWE DISTRICT REGISTRY FAMILY AND PROBATE DIVISION JUDICIAL REVIEW CAUSE NUMBER 28 of 2022 BETWEEN: THE SATE (on the application of) PSBERE. CHUNG wescstetntnscisianeneee 1S" CLAIMANT MANGANTKAZEMBE socccsssscssttessecc 2%? CLAIMANT -AND- | THE ADMINISTRATOR GENERAL wee, 1S" DEFENDANT MRS. SHIRA KAZEMRBE (NEE ZIGOWA) ..0. 2"? DEFENDANT CORAM: HON. JUSTICE F. A. MWALE. Mwandira, counsel for the applicant Mpandaguta, Court Interpreter ~ PROCEEDINGS |. Before I delve into the substance of the app lication before me, I have noted various anomalies in the sworn Statement in Support by counsel, ] reproduce below &xcerpts from the sworn statement: In the Estate of FD Kazembe (Deceased) Fiona A. Mwale J, "2. THAT I depose to matters of fact personally known to me and from the information supplied to me by the Claimants herein and verily believe the same to be true. 3. THAT the 1* Claimant herein is an Aunt of the deceased herein, She is an elder Sister to the deceased’s Mother and she is the one who raised up the deceased person herein 4. THAT the 2™ Claimant is a young Brother to the deceased named herein and he was told by the deceased who also raised him up that he was registered as ‘Nest of Kin’ by the deceased at the Malaw} Police Service where he was working 5. THAT the I Defendant is a Government Institution principally responsible for distributing deceased Estates ag its powers are governed by Statutes that include inter alia the Deceased Estates (Wills, Inheritance and Protection) Act, 2011, the Administrator General’s Act Cap. 10:01 and other laws. (...) 7. THAT the Malawi Police Services did all its Administrative processes until the file and all records were handed over to the | Defendant herein. 8. THAT on 7! July, 2022 the 1 Defendant received the sum of around MK11,000,000.00 as Pension for the deceased named herein which accrued after the death of the deceased herein and distributed In the Estate of FD Kazembe (Deceased) Fiona A, Mwale J. the same by giving the 274 Defendant the sum of MK7,000,000.000 whilst the 1 Claimant received MK4,000,000.000 respectively, 9. THAT however: reading through both the Deceased Estates (Wills, Inheritance and Protection) Act 2011, the Pension Act 2010, Laws of Malawi, including the Case authority on Pension for deceased Person, it is clear that Pension money which accrued after the death ofa deceased erson is not part of the deceased Estate and the Ae ~~~ PStSon Is Not part of the deceased Estate as such, the 1° Defendant acted beyond its given powers. 10. THAT the Claimants engaged us to represent them on the claim of unlawfully distributed Pension benefits because the 2"4 Claimant was told by his late brother that he was next of Kin and was therefore entitled to be part of the responsible people to distribute Pension benefits as it is not part of the Deceased Estate.” before the substance of the matter can be Settled. First, the sworn statement contains factual statements on the issues in dispute, Secondly, the sworn statement expresses legal opinion on the issues and lastly, the sworn statement contains legal argument. It is trite law that such renditions have no place in sworn statements, 3. With regard to the first issue, our rules of procedure are silent about the issue of lawyers deponing sworn Statements, Generally, therefore, there is no rule against counsel in appropriate circumstances, making sworn statements in matters in which they are on record. However, if counsel on record swears an affidavit, he or she is subject to the same rules as other In the Estate of FD Kazembe (Deceased) Fiona A. Mwale J, witnesses namely, order 18 rule 23 of the Courts (High Court) Civil we Procedure Rules that: “(1) A party may require the attendance, for cross examination of a witness making a sworn statement.” Counsel who swears a statement therefore opens himself or herself up to cross-examination on factual issues that he or she has simply been told by his clients, and since counsel swears that these matters are personally known to him or her, this leaves the door open to professional embarrassment during cross-examination. Counsel has in his sworn statement referred to too many factual issues which verily should have been sworn by the applicant and not by counsel. 4. To illustrate the abhorrence with which the issue of counsel swearing an affidavit on factual issues is met, I have sought wisdom from other common law jurisdictions which have firmly settled the issue. Canada, for instance, is one such jurisdiction which in the case of Rochon y, Commonwell Mutual Insurance Group, 2021 ONSC 2880 4 2021 decision of the Ontario Superior Court of Justice, one of the issues raised was whether an affidavit sworn by counsel of record, in response to a motion, was entirely appropriate. The plaintiff in that matter sought to amend the statement of claim. In an affidavit, defence counsel stated that he “verily believes” that the proposed increase in the claim for damages is | “frivolous, vexatious and an abuse of process” and is not “bona fide”. Justice Gomery noted that if defence counsel had evidence on these issues, he was a potential tria| witness and his firm should get off the record, 5. Further, in the same vein, in the 2008 Ontario Superior Court of Justice decision in Mapletoft v. Christopher J. Service, 2008 CanLII 6935 (ON SC) at para. 15, Master MacLeod discussed the challenges in having an 4 In the Estate of FD Kazembe (Deceased) _ Fiona A. Mwale J. affidavit sworn by the lawyer or staff member, He found that the issue is that counsel may become a material witness for trial, which would require the firm and the lawyer to withdraw from the action. Master MacLeod stated: This principle is grounded in the rules S0verning conflict of interest and the need for counsel as an Officer of the court to retain an “ppropriate level of Professional objectivity. The court cannot countenance counsel for a Party placing his or her own credibility in Issue on an important point of evidence, So sacred is the rule against counsel giving factual evidence that there is no other option than to withdraw from record as a result of offending it, 6. I have had occasion to inquire into the ethical implications of counsel giving evidence in a case in which he or she is on record in. the criminal case of The Republic y Leonard Karonga, Criminal Case No. 68 of 2014, [2016] MWHC 491 (01 March 2016); ina ruling before sentence. ‘Tn that case, the evidence in issue was live testimony at trial to. be made by the Prosecution as proof of when, during the course of the Proceedings, the convict had pleaded guilty. My findings then were as follows: “I have noted that the 2004 Malawi Lay Society Code of Ethics (Chapter 18) does not tackle the issye of whether a lawyer can testify as a witness at a client's trial. Since this Code of Ethics has yet to be adopted it may very well be that changes have been macle to it since. Whilst I am aware that in its current form the Code of Ethies is not legally binding, it is nonetheless a useful indicator of the prevailing thoughts on the subject within the Profession. Whilst ] have not, in the time since we adjourned the day before yesterday [been able] to source the most recent version of the Proposed Code In the Estate of FD Kazembe (Deceased) Fiona A. Mwale J, of Conduct, I have sourced Codes of Conduct for numerous Jurisdictions across the Commonwealth and beyond and the unanimous consensus seems to be that “lawyers appear to recognize, whether by rules or common sense, that merging the role of the advocate and witness is not a wise idea” but it is subject to exceptions. Thus, a lawyer may be disqualified from continuing to act for a client where it becomes apparent that he or she may be needed to testify as a witness in the client’s matter if he or she does not fall under the exceptions, ” The common law rules in tis regard have therefore already been applied in our jurisdiction, 7, Secondly, in addition to expressing himself on the facts of the matter, counsel in this matter has also gone too far in that he has proceeded to present an opinion in his sworn statement, In paragraphs 9 and 10 of the Sworn Statement for example, counsel makes firm expression of opinion which Justice Gomery in Rochon vy, Commonwell Mutual Insurance Group (cited above) criticized by stating that, “in the client’s eyes, the lawyer who swears in her belief as to the appropriate outcome of a Proceeding is implicitly criticizing the court should it come to a different view”. Therefore, according to that case, a lawyer who expresses his or her personal opinion or belief can undermine the administration of justice, In summary, the gist of the Rochon case (cited above) is that sworn statements of lawyers should contain facts and evidence, not the lawyer’s personal beliefs or opinions, particularly on contentious legal issues. In the Estate of FD Kazembe (Deceased) ‘ Fiona A. Mwale J. 8. Thirdly, is also trite law that a sworn statement should not contain legal positions. Paragraphs 5 and 8 of the Sworn Statement for example, make express reference to statute and the position of the law. The sworn Statement is therefore also offensive in that respect. 9. In the absence of our own ethical rules of conduct, we can borrow a leaf from Canada, in the case of in Mapletoft v. Christopher J. Service (cited above), where Master MacLeod provided the following guidelines for the use of affidavits sworn by lawyers: “15. For the guidance of counsel in future, I propose the following guidelines; a) A partner or associate lawyer or a member of the clerical staff may swear an affidavit identifying productions, answers to undertakings or answers given on discovery. These are simple matters of record, part of the discovery and admissible on @ motion pursuant to Rule 39.04 Strictly speaking an affidavit may not be necessary but it may be convenient for the purpose of organizing and identifying the key portions of the evidence, Used in this way, the affidavit would be non- contentious, b) If it is necessary to rely on the information or belief of counsel with carriage of the file, it is preferable for counsel to swear the affidavit and have other counsel argue the motion. This approach will not be appropriate for highly contentious issues that may form part of the evidence at trial. if the evidence of counsel becomes necessary for trial on a contentious issue, it may be necessary for the client to retain another law firm. in the Estate of FD Kazembe (Deceased) Fiona A. Mwale J. c) Unless the evidence of a lawyer is being tendered as expert testimony on the motion, it is not Cepropriate for an affidavit tO contain legal opinions or argument. Those should be reserved for the factum.” 10. In addition, guidance was also provided in Ferreira y, Cardenas, 2014 ONSC 7119, a Ontario Superior Court of J ustice decision by Justice Myers who conceded that certain procedural motions turn on evidence that counsel can provide, such as the chronology of the action or facts regarding how litigation has progressed. In those instances, counsel, rather than the client, are best suited to provide these facts. Counsel would do well to follow this guidance, Il. Foralll have reasoned above, I find the Sworn statement in support of the application improper and inappropriate and in consequence, the order for extension of time within which to commence Judicial review js not granted, I so order, Pronounced in Chambers in Lilongwe in the Republic, this 7% day of November 2022, AIG. Fiona Atupele Mwale JUDGE