S (on the application of City Plastics Industry) & 10 Others v Minister of Natural Resources & Climate Change & The Attorney General (Judicial Review Cause 48 of 2024) [2025] MWHC 3 (31 January 2025)

JUDICIARY IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY JUDICIAL REVIEW CAUSE NO. 48 OF 2024 (Before Honourable Justice Howard Pemba) BETWEEN THE STATE (on the application of: CITY PLASTICS INDUSTRY 0... ee eesecececceceececescesceceeceececseceeeseesceeseees .157 CLAIMANT FLEXO PACK LTD ou... ee eccecceeeeeenee ecseceececceccssscsscesccescsaseececeesscesceeeeees .2N° CLAIMANT G. PLASTICS WHOLESALE AND RETAIL .......... eee eeesececeeeeeeecseeeeeeeeeees 382 CLAIMANT G. S PLASTIC INDUSTRY 0... ee eececceececeececeececcscssesceccsescescsessecsesesres ~474 CLAIMANT JAGOT PLASTICS LIMITED ...0.. ee eccceccstcececccecescsceseesscesescecesesceceeeeeees 574 CLAIMANT O. G PLASTIC INDUSTRIES (2008) LIMITED... ee eeeeeceeeteeeeeeee .674 CLAIMANT PLASTIMAX LIMITED uu... ccccceceee ee ececessesceccessssssssrsseseeceassessceeeeesece .7T4 CLAIMANT POLYPACK LIMITED 0.00... eeccececcesececeececcececescsceccssceceececcesscscensacceesesceeses 8TH CLAIMANT QINGDAO RECYCLING LIMITED oe eccceceeeeeecteeteeeceeseeseeeeeeeeees .9TH CLAIMANT SHARMA INDUSTRIES. .............cessssscscecsessesececcececeeceecesseseesseseeseeaceessesecees .1074 CLAIMANT SHORE RUBBER (LILONGWE) LIMITED) oe eeeeceeceeeeceeceneeeees -1174 CLAIMANT AND MINISTER OF NATURAL RESOURCES AND CLIMATE CHANGE... ee cceccesseeeseesee ecceseeceececeescssessceeseceeeees .157 DEFENDANT THE ATTORNEY GENERAL... ee eesessceccecceeececesseceeceeceeseceeesceeseees .2N° DEFENDANT CORAM: HON. JUSTICE HOWARD PEMBA Mr Kita, Counsel for the Clamaints Mr Kaphale S. C, Mr Theu and Dr Silungwe, Counsel for the Defendants Mrs. Mwase, Court Clerk and official Court interpreter RULING Introduction 1. This is my ruling having heard both parties on an application by the Defendants for an order to discharge permission to commence judicial review and dismiss the application for the said judicial review. The application was taken under 1|Page Order 10 Rule 1 of the Courts (High Court Civil Procedure) Rules and the courts’ inherent jurisdiction. 2. By way of a brief background, on 25** June 2024, the Claimants, through Counsel Kita of Messrs. Kita and Company, filed a without notice application before this Court seeking various reliefs. | must say that by then the matter was being handled by my brother Judge, Justice Mdeza. The application sought the following reliefs: an order granting extension of time within which to apply for judicial review, and if such extension is granted, the Claimants also sought permission to apply for judicial review together with an order of interlocutory injunction against implementation of the Defendants’ decision. The decision in respect of which judicial review was applied for is that of the 1st Defendant of promulgating the Environmental Management (Plastics) Regulations 2015(herein referred to as EMR2015) without a recommendation from the National Council for the Environment contrary to Section 37(1) of the Current Environmental Management Act. The application further sought for an order of referral for certification of the matter as a constitutional matter. In his wisdom, Justice Mdeza granted all the reliefs sought by the Claimants on 25* June 2024. 3. Pursuant to the order of referral, on 6 August 2024, the Acting Registrar, His Honour Innocent Nebi, forwarded the file to the Honourable Chief Justice for purposes of certification if it is indeed a constitutional matter. Meanwhile, on 5th August 2024, the Defendants had filed with the court a with notice application (the present application) to discharge the said permission and dismiss the application for judicial review. On 21%t October 2024, the Hon. Chief Justice referred the file back to Hon. Justice Mdeza to deal with the Defendants’ application for a discharge of the order granting permission and dismiss the application for judicial review. The file then was passed on to me after Justice Mdeza recused himself from handling it. 2|Page 4. The application is grounded on three points namely: that the proceedings is an abuse of the court process by the Claimants; that there has been inordinate and excessive delay which is prejudicial to the enforcement of the environmental laws for protection of the environment and good administration; and that the Claimants suppressed material facts when they applied for and obtained permission for judicial review. 5. In support of the application, there is a sworn statement of Taonga Mbale-Luka, Director in the Department of Environmental Affairs. The Defendants also filed skeleton arguments in support of the application as well. The gist of the Defendants’ argument in both of these documents is that there has been inordinate and excessive delay in applying for the judicial review as nine years have elapsed since the impugned Regulations were promulgated. The Defendants aver that the Claimants also suppressed material facts with regard to the history of the matter as there have been multiplication of the same applications by the Claimants despite the issue being dealt with by the Supreme Court of Appeal. It is this latter ground that also forms the Defendants’ belief that the proceeding now is an abuse of the court process by the Claimants. Hence, they pray to this Court that the permission that was granted to the Claimants and the actual application for judicial review should be discharged and dismissed respectively with costs. 6. The application is strappingly contested by the Claimants and there is a sworn statement of Counsel Wapona Kita and skeleton arguments filed in opposition. The first Claimants’ argument in opposition to the application is that the application is not supported by the sworn statement of the Defendants or their legal practitioners as required by the law. Counsel Kita argues that the Defendants in this matter are the Minister of Natural Resources and Climate Change and the Attorney General and NOT the Director of the Department of Environmental Affairs. In that regard, he argues, there is no valid application before this Court. 3|Page 7. Counsel Kita further argues that even if this Court were for any reason to accept the sworn statement of the Director of Environmental Affairs as anchoring the application, the said sworn statement is fatally defective in that it does not state in its authorizing part the full name, address and capacity of the deponent. Counsel further argues that there is no abuse of the court process nor is there suppression of any material facts by the Claimants considering that in all the said previous multiple cases cited and exhibited by Tawonga Mbale-Luka, the defendant was not the Minister but the Director or the Department of Environmental Affairs and the Malawi Environmental Protection Authority. Hence, it is argued by counsel for the Claimants that the allegation of abuse of the court process is without merit as the authority against which and the subject matter in respect of the said judicial review proceedings were being brought are totally different. He therefore prays that the Defendants’ application should be dismissed with costs. 8. The hearing of these arguments from both parties took place on 26" November 2024 and thereafter, this Court reserved its ruling which | am considering now. Issues for determination 9. Having assiduously heard the parties, the main task for me is to determine on whether or not permission to apply for judicial review that was granted to the Claimants herein should be discharged. 10. In dealing with this main issue, | am inclined to look at whether in commencing these proceedings, there is an abuse of the court process by the Claimants; whether there has been inordinate, inexplicable and excessive delay by the Claimants in making the application; and whether the Claimants suppressed material facts when they applied for and obtained permission to commence these judicial review proceedings. 4|Page Law and analysis 11. Before | proceed to delve into the foregoing outlined issues, following the service of the sworn statement in opposition to the application to discharge permission to apply for judicial review deponed by counsel Kita on behalf of the Claimants, the Defendants filed a notice of objection against the said sworn statement. The basis of this objection is that the sworn statement of Counsel Kita contains inadmissible content and must be expunged from the court record. Counsel Kita responded to this objection by filing skeletal arguments in opposition to which the Defendants also replied challenging the procedural way the Defendants raised the objection. This Court will therefore first and foremost deal with the objection which raises the following issue: Whether the Claimants’ sworn statement should be expunged from the court record for being defective. 12. The Defendants have asked the court to expunge the Claimants’ sworn statement in support of their opposition to the Defendants’ application. The said sworn statement was deponed by the Claimants’ legal practitioner, Mr. Wapona Kita. The Defendant’s objection to the sworn statement is that it is defective in that it does not contain statements of facts or evidence but rather legal arguments and prayers as well as averments lacking in merit. They stress the point that a sworn statement must contain facts which the deponent is able to prove with his own knowledge. 13. My starting reference point on this issue is Order 18 rule 6(1) of the Courts (High Court Civil Procedure) Rules of 2017(herein also referred to as CPR 2017) which is couched in the following terms: “Subject to sub-rule (2), a sworn statement shall only contain facts that the deponent is able to prove with his own knowledge” (Emphasis in bold and underlining added) 14. Sub rule (2) referred to in sub-rule (1) states the following: 5|Page “A sworn statement may contain a statement of information and belief provided that the sources of the information or the basis for the belief are also set out in the statement”. 15.1 must agree with the Defendants’ submission that Order 18 rule 6(1) cited above leaves no room for legal arguments or submissions in a sworn statement. The rule is couched in clear and unambiguous terms to the effect that the substance of a sworn statement must only be facts which the deponent can prove or statements of information or beliefs under sub-rule (2) as the case may be. At this point, | shall proceed to look through the impugned sworn statement. 16. The relevant paragraphs of the sworn statement read as follows: 6|Page 3. THAT the Defendants in this matter are the Minister of Natural Resources and Climate Change and the Attorney General and NOT the Director of the Department of Environmental Affairs. 4. THAT there is no sworn statement by either of the Defendants or their Legal Practitioners in support of their application, by reason of which there is no valid application before this Court. 5. THAT consequently, the invalid application that is before this Honourable Court must be dismissed as a matter of justice- ex debito justitiae. 6. THAT even if the Court were for any reason to accept the sworn statement of the Director of the Department of Environmental Affairs as anchoring the application of the Defendants herein, the said sworn statement is fatally defective in that it does not state in its authorising part the full name, address, and capacity of the deponent. 7. THAT on this basis alone too, | pray to the Honourable Court to dismiss the Defendants’ application. 8. THAT the current judicial review proceedings have been commenced against the Minister of Natural Resources and Climate Change and Attorney General for the reason that it is his decision to promulgate the impugned Regulations that is subject to judicial review. 7|Page 9. THAT | refer to paragraphs 5 to 31 of the Sworn Statement of Tawonga Mbale- Luka in which she brings out several cases as her evidence that the Claimants are abusing the court process by lodgment of multiple judicial reviews 10. THAT a closer look at all these cases cited and exhibited by Tawonga Mbale- Luka shows that the one sued is not the Minister. 11. THAT in Exhibit TML1, the Defendant is Secretary for the Environment and Climate Change. In Exhibit TML2, the Defendant is the Director of Environmental Affairs. In Exhibit TML3, the Defendant is Exhibit TML 4, the Defendant is Department of Environmental Affairs [sic]. In Exhibit TML 6, the Defendant is Malawi Environment Protection Authority. 12. THAT it is obvious that one who was being sued in all these proceedings is not the person or authority that promulgates Regulations but enforces them. 13. THAT the issue in the current proceedings is not about the legality of the steps taken by the enforcement agency but the legality of the promulgation of the Regulations themselves by the Promulgating authority an issue that could not have been taken up in the rest of the cases cited by Tawonga Mbale-Luka because the decisions that were being challenged in those cases concerned the legality of the enforcement measures and not promulgation. 14. THAT with regard to Exhibit TML 5, the Claimant therein is not a party to these proceedings and the subject matter of the proceedings was also different. 15. THAT from the foregoing, the allegation that the Claimants are abusing the Court process is without merit as the authority against which and the subject matter in respect of the said judicial review proceedings were being brought are totally different. 16. THAT | refer to paragraph 34 of Tawonga Mbale-Luka in which she alleges that 9 years have elapsed since the Regulations were promulgated and there has been an inordinate delay in making the current application for judicial review, 17. THAT this fact cannot be used to set aside the permission that was granted because the same was brought to the attention of the Court and is contained in paragraphs 5 to 9 of the sworn statement of Wapona Kita in support of the application for extension of time within which to apply for judicial review. 18. THAT unless the Defendants want this Court to sit as a Court of Appeal against its own decision, the issue of inordinate delay was already brought to the attention of the Court and was dealt with by the Court and the Court already 8| Page exercised its discretion to grant permission for the extension of time within which to apply for judicial review and subsequently the permission itself to apply for judicial review. 19. THAT it is also the Defendants’ case that their application should be granted because the Claimants suppressed material facts. 20. THAT the fact that there were other cases pertaining to the regulations was disclosed to the Court at the time of making the ex parte application for permission for judicial review. This is expressly contained in paragraph 7 of Wapona Kita’s sworn statement in support of the application for permission to apply for judicial review. 21. THAT in fact there is a whole paragraph at Pages 20 to 22 of the Skeleton Arguments that were used in support of the application for permission to apply for judicial review where the Claimants discuss and distinguish the case of The State (Ex parte Aero Plastics Industries vs Director of Environmental Affairs at length and how the application for permission to apply for judicial review should still be granted despite this decision. 22. THAT | refer to paragraph 36 of Tawonga Mbale-Luka sworn statement, and aver that in it, the Defendants concedes that the issues being raised by the Claimants are fit for judicial review, only that she would have wanted the same to have been raised in the 2014 or 2016 judicial reviews and that by now we would have had viable regulations banning thin plastics 23. THAT as already shown hereinbefore, the 2014 and 2016 judicial reviews were about the legality of the enforcement steps being undertaken and not about the legality of the promulgation of the Regulations themselves. No wonder, the Defendant in all those 2014 and 2016 judicial reviews was not the Minister who makes the Regulations but the Director of Environmental Affairs who enforces Regulations 24. THAT these judicial review proceedings specially deal with the legality of the promulgation of the Regulations and not necessarily their enforcement. The issues being raised in these proceedings are totally different from the rest of the judicial reviews that came before 25 THAT I! maintain that this is a matter that is fit for judicial review. This Court having already granted the permission for extension of time is functus officio to reverse the same as all the facts about the delay were laid before the Court at the time of granting the permission. 17. What comes out glaringly clear in my reading of the above paragraphs from the sworn statement is that the deponent did indeed combine statements of facts and legal arguments as well as opinions in the substance of the sworn statement. | have emphasized in bold some of the averments that | believe to be not statements of facts. In light of Order 18 Rule 6(1) of the CPR 2017 cited above, the sworn statement is indeed substantially defective. The next question is then how should | deal with such a sworn statement? 18. In Order 18 rule 18 of the CPR 2017, it is provided that a sworn statement may be filed despite any defects in form. However, the defects challenged herein do not speak to form but rather to the substance of the sworn statement. This Rule cannot therefore be relied upon to cure this defect. By being substantially defective, it is conclusive that the sworn statement has not complied with Order 18 Rule 6(1) and the CPR at large. However, | hold the view that such defect is curable under Order 2 Rule 3 of the CPR where the court has the discretion to among others, declare a document ineffectual or effectual where there is non- compliance with the rules. Be that as it may, it is recommendable to all other litigants to strictly comply with the rules and not to flee to Order 2 in a bid to rescue themselves from non-compliance. In these proceedings, | hold the view that this defect, just as that of failure to state the full name, address or capacity of the deponent in its authorizing party, is not such that it should warrant expunging the sworn statement. The Defendants’ objection should therefore be dismissed. 19. On the other hand, there is a similar argument by counsel for Claimants that the Defendants’ application is not supported by the sworn statement at all because the Defendants in this matter are the Minister of Natural Resources and Climate Change plus the Attorney General and NOT the Director of the Department of 9|Page Environmental Affairs who deponed the sworn statement. Counsel wants to sway this Court not to rely on the sworn statement of Tawonga Mbale-Luka because she or her Department is not a party to these proceedings. | am afraid | cannot be swayed with such an argument by any inch. To say the least, the evidence shows that Ms Mbale-Luka is head of the relevant department in the 1* Defendant’s Ministry and has first-hand historical know-how of the promulgation and enforcement of the EMR2015. She is therefore perfectly competent to speak to that history. She clearly states in paragraph 1 of her sworn statement that she makes the statement on behalf of the Defendants precisely because she is the custodian, and a more competent witness, to the relevant factual history. | therefore equally dismiss the Claimants’ argument to that effect in its entirety for lacking merits. | will return to the main issues now. Whether the proceeding herein is an abuse of the court process by the Claimants 20. Abuse of the court process is the first ground on which the Defendants make the present application. They form this basis on the ground that there have been multiplication of the same applications by the Claimants on the subject matter despite the issue being dealt with by the Supreme Court of Appeal. The sworn statement by Tawonga Mbale-Luka (TML) presents several judicial review proceedings touching on the same subject matter which is the ban on thin plastics. 21. The first proceedings were commenced in Judicial Review Cause No 54 of 2014, in The State vs Secretary for Environment and Climate Change Management, ex parte Vijay Kumar on behalf of the members of the Plastics Manufacturers Association of Malawi. TML pointed out that the Applicants in the mentioned case included all the Applicants in the present case except the 9" Claimant. It has also been pointed out that the Applicants were aware of the ban on plastics of less than 60 microns as they had been part of consultations that took place before the ban. What was challenged in Judicial Review No. 54 of 2014 was the 10| Page implementation of the ban when the Minister had already granted an extension to the 30 of June 2015. Owing to the fact that the Minister at that time was not aware of the extension, the case was settled out of court and the extended time remained the 30 of June, 2015. 22. The second judicial review was commenced in 2016, being The State (On the Application of Aero Plastics and Others) vs The Director of Department of Environmental Affairs (DEA), Judicial Review case No. 20 of 2016. The case came following the closure of Aero Plastics Ltd and Rainbow Plastics on the 19% of January, 2016. This was after the ban on thin plastics was drafted into Regulations under the Environmental Management Act of 1996 and gazetted on the 27 day of March 2015 as The Environmental Management (Plastics) Regulations, 2015(EMR2015). The grounds for review were that the factories were closed without affording the Claimants the right to be heard. TML further made some observations including that Aero Plastics Ltd acted on its own behalf and on behalf of 12 others who are also Claimants in the present matter, except the 9* Claimant. The court dismissed Judicial Review Cause No. 20 of 2016, concluding that there had been consultations with the Claimants before and after the promulgation of EMR2015. An appeal against the judgment for the aforementioned judicial review was also dismissed by the Supreme Court of Appeal, the judgment for which | shall refer to later on. 23. Following the dismissal of the mentioned Appeal, the Ministry made a notice of the resumption of the enforcement of EMR2015. However, later came another court action in the name of Judicial Review case No. 1 of 2020, The State (On the Application of GM Polybags Ltd and 11 others) vs Department of Environmental Affairs in which a stay of the enforcement of EMR2015 was obtained. This was the third judicial review. 24. In the same year, one of the Claimants represented in the first judicial review and party to the second and third judicial reviews commenced a separate judicial 11|Page review, Judicial Review No. 4 of 2020, The State vs Minister of Environmental Affairs & Attorney General, ex parte Golden Plastics Ltd. This was the fourth judicial Review seeking to have EMR2015 invalidated on the grounds that (i) the regulations were too vague and wide to provide clear guidance to manufacturers; (ii) the adopted minimum thickness of 60 microns is too high and not consistent with the standard from other countries; (iii) in promulgating the EMR2015, the Minister acted ultra vires of Section 37 of the Environmental Management Act; and that the Minister did not lay EMR2015 before Parliament as required by the Constitution. 25. Judicial Review Cause No. 4 of 2020 was discharged by the court for want of prosecution after the Claimants had not prosecuted the matter for almost one year. This was done notwithstanding the Claimant’s application to have the matter certified as a constitutional matter. The Claimants later appealed to the Supreme Court obtaining a stay of the decision of the High Court and thus reviving the stay of enforcement of the EMR2015. The appeal was later withdrawn by the Claimants marking the end of Judicial Review Cause No. 4 of 2020. 26. TML later discusses the 9t* Claimant, QINGDAO Recycling Ltd, acknowledging that it may not have been in the previous judicial reviews. However, he points out that, its director was subject to criminal proceedings under the same EMR2015, in Republic vs Ma Xiao Bing, Criminal case Mo. 571 of 2020. The accused pleaded guilty to charges of manufacturing thin plastics and was convicted and received a suspended sentence. The nine machines that were found to be in production were confiscated and later, TML issued a closure order on the 9* Claimant under the same EMR2015. The 9° Claimant then obtained an injunction in Miscellaneous Commercial Case No. 04 of 2021, Qingdao vs Environmental Protection Authority, restraining the implementation of the closure order pending a determination of an appeal that was lodged with the Environmental Tribunal. The injunction was to last for 14 days. TML states that 12|Page she is not aware and the ministry or the MEPA were never served with any Appeal lodged with the Environmental Tribunal. This essentially entails that the purported appeal may have vanished in thin air. 27. Now, coming to the present proceedings, this is the fifth judicial review touching on the same EMR2015. These are the facts underpinning the Defendants’ claim of abuse of the court's process by the Claimants. It has been argued that the Claimants came before this Court under the pretext that the grounds for judicial review are new and different from those in the previous reviews. The Defendants are of the view that what the Claimants are doing is nothing but a tactic seeking to delay the enforcement of the EMR2015. In the Defendants’ view, the new issue raised in ground 1 of the present judicial review has always been available to be raised but was never raised at all. The Defendants have cited a myriad of case authorities advancing that it is an abuse of court process to bring in subsequent proceedings, issues which could and should have been litigated in earlier proceedings. 28. The Claimants respond that there is no abuse of the court process. They have stressed the point that the previous judicial reviews were not against the Defendant in the present proceedings. It is stated that the present action was commenced against the Minister of Natural Resources and Climate Change and the Attorney General for the reason that it was his decision to promulgate the challenged EMR2015. It is also the Claimants’ point that the issue in the current proceedings is not about the steps taken by enforcement agencies but the legality of the Regulations themselves, an issue that could not have been taken by the previous judicial reviews because they concerned the legality of the enforcement measures and not promulgation. 29. The position of the law seems to be that it would indeed be an abuse of the court process to maintain two or more causes of action on the same issues (See National Bank of Malawi vs Gondwe [1993] 16(1) MLR 376. In the same spirit, 13|Page it is also an abuse of the court process to seek relief from one court and, when the relief is granted, to refrain from acting on it but to seek a substantially similar relief from another court (See Kasungu Flue Cured Tobacco Authority vs Zgambo [1992] 15 MLR 174, a decision by the Supreme Court of Appeal. 30. However, each case must be decided on its own peculiar facts and it is not every case where a plaintiff maintains two or more actions that would amount to an abuse of the court process. The present matter concerns the raising of issues in new proceedings, that could and should have been raised in earlier proceedings. In the Defendants’ submission, that would render the subsequent action an abuse of court process. The Defendants cited the case of Henderson vs Henderson (1843) 3 Hare 100, 115 and other authorities that referred to the mentioned case underscoring the position that in any given matter, courts require parties to that litigation to bring forward their whole case and will not permit the same parties to bring forth another action for an issue which might have been brought forward as part of the earlier proceedings. 31. The rule, as held in Greenhalgh vs Mallard [1947] 2 ALL ER 255, also cited by the Defendants, does not only cover issues already decided in previous litigation but also issues or facts that are so clearly part of the subject matter of litigation and could have been raised. It is as well an abuse of the process of the court to allow a new proceeding to be started in respect of them 32. | must say that it is indeed a misnomer to bring a matter on the same set of facts before the same court (in the case, the High Court) by bringing up a legal issue that was inadvertently missed during the initial trial or, as it is in this matter, judicial review. In our adversarial system of justice, the courts ordinarily deal with issues as raised by the parties to the proceedings. If the parties, either by their slapdash work or lack of meticulous due diligence rendered the matter in issue miss other issues which could have reasonably been raised had they been 14|Page thorough, the courts must be slow to come to that party’s rescue. Such is not a proper use of the Court’s machinery. 33. The Supreme Court of Appeal considered the rule in Henderson vs Henderson in The Malawi Revenue Authority vs Azam Transways [2008] MLR 382. The brief facts of the case are that the Respondent’s (Azam) vehicles were detained on suspicion that they had conveyed goods contrary to Customs laws. The matter started in the Magistrate Court and then to the High Court where the vehicles were released almost nine months later. After the release, the Respondent brought a separate action before the High Court seeking loss of business income. The Appellant argued that the question of damages should have been raised together with the action for the release of the vehicles. On page 388, the Supreme Court said the following: “The circumstances in which abuse of process can arise are very varied. Reference need not be made to all of them, but, as Lord Somervell put it in Greenhalgh vs Mallard [1947] 2 All ER 255 at 257, may cover: “issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them.” 34. Later in the judgment, the court observed that an additional element ought to be added namely, the culpability of claimants in not raising relevant issues in previous proceedings. In the words of the court @ 389: “...a Claimant might be faced with a choice between bringing one action or two where taking the former course would save great deal of time and costs for all concerned but could lead to duplication if he lost and had to bring his second action. A claimant who chooses the potentially more economical course in such circumstances should perhaps not necessarily be regarded as abusing the process of the Court if he has to bring his second action. We observe here that what the Respondents did was in fact to the contrary. By bringing the second action in the High Court they chose a course that was potentially less economical, so to 15|Page speak, than if they made the claim in the magistrate Court. This seems to point to culpability on the part of the Respondents”. (Emphasis by underlining added) 35. In disposing of the matter, the Supreme Court stated the following @ 390: “Clearly, the issue of damages, which was for the same reason as the issue in respect of the claim for the release of the vehicles, appears to us to have been so clearly part of the subject matter of the litigation in that Court, that it becomes, in our view, both res judicata and an abuse of process to raise it in subsequent proceedings; it is obviously a matter which could and, therefore, should have been litigated in the earlier proceedings. The second ground of appeal, therefore, succeeds.” 36. The rule in Henderson vs Henderson(supra) has evolved and | did my own research to find out of its extent. One thing is also conspicuously clear. The mere fact that an issue could and should have been raised in earlier proceedings does not render a subsequent action an abuse of court process. As said in Johnson vs Gore Wood [2000] UKHL 65, that approach would be dogmatic. What must be done is “a broad, merits-based judgment which takes into account of the public and private interests involved and also takes into account of all the facts of the case”. It is also worth mentioning that the burden rests on the defendant to establish that it is an abuse of process for them to be subjected to the second action (Johnson vs Gore Wood, Michael Wilson). Also, because the focus is on abuse, it will be rare for a court to find that a subsequent action is an abuse unless it involves “unjust harassment or oppression” as put by Lord Clarke MR in Dexter and Lloyd LJ in Stuart vs Goldberg Linde. 37. An evaluation of whether a subsequent action is an abuse of court process should also consider the causative effect of the failure to raise the issue in the earlier proceedings as well as the extent to which the new issue overlaps with the subject matter of the earlier proceedings (See Outotec (USA)Inc vs MW High Tech Projects UK Limited (2024) EWCA Civ 844. With the foregoing in mind, | 16|Page shall proceed whether there has been an abuse of court process in the present proceedings. 38. To recap, and in reference to the Claimants’ application for permission to apply for judicial review, the grounds for review in the present application include; that the decision to promulgate the EMR2015 was without recommendation from the National Council for the Environment as required by Section 37(1) of the repealed Environmental Management Act; that the decision was also outside the specification and outside the purpose laid out in Section 37(1) of the same Act; and that EMR 2015 was promulgated without being laid before Parliament in a manner recognized by the law, to wit, Section 58(1) of the Constitution of the Republic of Malawi. 39. In the first judicial review, that is Judicial Review No. 54 of 2014, the mentioned issues could not have been raised because those proceedings were before the promulgation of EMR2015. Later came Judicial Review Cause No. 20 of 2016 to which according to TML, the Claimants in this matter, except the 9* Claimant, were party. That has not been disputed by the Claimants and | shall take it as such. The reading of the High Court judgment of that case shows that some of the decisions challenged included the adoption, implementation, and enforcement of EMR2015, particularly, the ban on thin plastics. About the said decision, the Applicants therein sought a declaration that the decision did not take into account all relevant factors and was thus unreasonable and void. The argument was dismissed both in the High Court and the Supreme Court. 40. In Particular, the Supreme Court upheld EMR2015 to be reasonable and that the Minister had taken into account all relevant factors (See the state (On the Application of Aero Plastics and Others) vs The Director of DEA, MSCA Civil Appeal NO. 19 of 2019. In my view, the new issues being raised in the present matter could and should indeed have been raised in Judicial Review Cause NO. 20 of 2016. One can only wonder how the Applicants managed to raise the issue 17|Page of the unreasonableness of EMR2015 and yet failed to raise the issues they raise now. In my mind, all these issues speak to the validity of the regulations. 41.|In the third Judicial review, Judicial Review Cause No. 1 of 2024, the Court therein, as can be seen in the exhibit marked TML4, made observations to the effect that if the supreme court decision (MSCA Appeal No. 19 of 2019), is to the effect that plastic bags should be banned, then the court could not proceed with a judicial review since it could not review a Supreme Court's decision. The court however granted the permission but asked that there be better particulars in light of what it had said. In that review, the decision to ban thin plastics was being challenged on various grounds including that there were no consultations with key stakeholders. The grounds raised in the present matter were never raised. Nevertheless, | still hold the view that the grounds herein could and should have been raised in that review. The grounds raised in the present matter as | must repeat, also speak to the validity of EMR2015 which was also being challenged in the mentioned previous review. A close reading through of all the foregoing circumstances does prove that the present case falls within the reach of the rule in Henderson vs Henderson(supra). | must proceed to take into account the other factors. 42. Regarding Judicial Review NO. 4 of 2020, the Claimants therein are indeed not party to the present proceedings. As such | hold that it has no bearing in the determination as to whether there has been an abuse of court process. 43. Following what was said by the Supreme Court in Malawi Revenue Authority vs Azam Transways (supra), it seems to me that the conduct of the Claimants who were party to the previous reviews has been nothing but less economical. | am not ready to say that the courses opted for by the said Claimants have been saving any party concerned time and costs. In my view, a much more economical option was to dispose of all issues relating to the EMR2015 at the first chance 18|Page they had, and that goes back to Judicial Review Cause NO. 20 of 2016. They were raising grounds affecting the validity of EMR2015 but never bothered to raise the present grounds which to me are and should have been part of the subject matter then. Not only were the issues not raised in one action but two other actions that followed. 44. As to the Defendants’ burden, | am convinced that they have shown, on the balance of probabilities, how this matter is an abuse of the court process by proving vexations and harassment. It is the Defendants’ point that in light of the multiple legal proceedings, the implementation and enforcement of EMR2015 has been delayed for over 9 years. This is true and has indeed been proven by a number of orders, some of which have been regarded conflicting by the same court, to the effect of staying the enforcement of the Regulations herein. It is indeed a typical abuse of the court process to repetitively institute proceedings concerning the same subject matter and seeking the same ultimate relief by each time raising different grounds when all such grounds could have been litigated at once and when some of these grounds have already been determined by the court. 45. As to the Claimants’ argument on why they failed to raise the present issues, am afraid cannot hold. They argue that they could not raise these issues as the proceedings were not commenced against the person responsible for promulgating EMR2015, in this case, the Minister. To my astonishment, the grounds in the previous judicial reviews included among others, that the regulations were unreasonable, too vague, and wide. They even went further asking the courts then to annul the regulations. One can only wonder if those grounds should also have been made against the Minister. Again, the grounds in the present matter speak to the validity of EMR2015 and so did some of the grounds in the previous reviews. Therefore, | am afraid the Claimants have failed to show why they could not raise the current issues in the previous proceedings. 19|Page 46. What basically comes out crystal clear from the circumstances of the present case is that the Claimants have indeed adopted a calculated tactical strategy to persistently challenge and frustrate enforcement of the EMR2015 by raising grounds for review in peace-meal and/or repetitively changing the configuration of the parties in some instances when truthfully at all times they all have a singular grievance namely that 60 microns as minimum thickness is too high a requirement under the EMR2015. The permutation of the grounds for review and parties at each instance seems to me merely tactical. It is apparent that the real object of the litigation at each instance is to suspend enforcement and ultimately hopefully get rid of the minimum 60 microns under the EMR2015. 47. As stated by the court in Seele Australia GMBH Co. KG vs Tokio Marine Europe Insurance Ltd[2009] BLR 261, ‘the court should astute to prevent a claiming party from putting its case one way, thereby causing the other side to incur considerable expense, only for the claiming party to lose and then come up with a different way of putting the same case so as to begin the process all over again. The rules are designed to avoid the litigation equivalent to death by a thousand cuts. It would be wrong and unfair to allow the claimant in these proceedings to go back to square one and attempt to run a case which could and should have been raised years ago’. 48. Considering the public interest which has always been that litigation must come to an end and the need for the use of the court’s time and resources prudently, | am afraid | must declare the present proceedings as an abuse of the gravest magnitude of the court process calling for a discharge of the permission so obtained by the Claimants. | now proceed to consider the second issue. Whether there _has_ been inordinate _and excessive delay by the Claimants in applying for judicial review 49. The Defendants’ next ground is that there has been an inordinate delay in the commencement of the present judicial review. It is advanced that since EMR2015 were promulgated in 2015, nine years have elapsed up to when the permission 20|Page for judicial review was sought. Accordingly, the Defendants have argued at length that the Claimants are barred by Order 19 rule 20(5) of the CPR which demands that an application for permission to commence judicial review must be made promptly and not later than three months. 50. In opposition, the Claimants have invited this Court to consider that they do not hide that they were indeed too late to apply for judicial review by nine years, and that is why they made a specific application for an extension of time where the court considered the reasons which were given for the delay and granted the extension. It is further argued that consideration of the Defendants’ argument would mean that the court is sitting as an appellate court against its own decision. 51.1 wish to agree with the Claimants and am afraid | cannot give much consideration to this ground. As rightly put by the Claimants, the judge that granted the Claimants permission to apply for judicial review was invited to consider extending the time to apply for judicial review which was then granted. As | alluded to earlier on, the said Application was before Honorable Justice Mdeza. | believe that in his discretion, he thought it appropriate to grant the application in consideration of the reasons then given for such a delay. With that in my mind, | fear it is not appropriate for another judge in the exercise of his discretion to review an application that was granted. Accordingly, the Defendants’ ground of inordinate and excessive delay cannot be entertained and will not be considered any further. | therefore turn to the last issue. Whether there has been suppression of material facts by the Claimants 52. The present application is also based on the ground that the Claimants have suppressed material facts. In particular, the Defendants aver that what has been suppressed are the previous court proceedings which they have been persistently initiating. It is contended that the grounds for review, the procedural histories, and the outcomes of the previous litigations have not been disclosed. On that 21|Page account, the Defendants argue that the non-disclosure was so grave that the permission should be discharged. 53. In opposition, the Claimants dispute the allegation that they suppressed material facts. They refer the court to the skeletal arguments in support of the application for permission to apply for judicial review in which they distinguished Judicial Review Cause No. 20 of 2016, from the present matter. The Claimants further submit that it was not necessary to disclose the minute details of the rest of the previous cases as they have no bearing on the matter at hand since they do not concern the same defendant. 54. That an application made without notice to the other party can be discharged on the basis that the Applicant suppressed material facts is a well-established position of the law. Corollary to that, it is always open to an opposing party, where permission to move for judicial review was granted without notice, to apply to the court for an order that such permission should be set aside on the ground that there had not been frank and full disclosure of all material matters of both fact and law(see The State vs the Commissioner General of Malawi Revenue Authority ex parte Muhamed Hamid Hassan[2013]MLR 371). 55. Agreeably, when it comes to judicial reviews, the rule does apply. A party to an application for a judicial review ought to make full disclosure of all material facts available and the doctrine of uberrimae fidei in effect applies to such cases (See R vs Leeds City Council ex parte Hendry [1994] 6 Admin LR 439 and Beese vs Woodhouse [1970]1WLR 586). Such is the duty placed on the Applicant by operation of the law. When suppression of material facts is alleged, the Court’s approach involves considering the original application in light of the new facts and determine whether the new facts would lead the Court to decide differently. If the decision would be different, the suppressed information is material. If the decision would not change even in the light of the new facts, 22|Page then the suppressed facts are not material (See Satehzan Limited vs Mobil Oil (PVT) Ltd Civil Cause NO. 3456 OF 1999). 56. In the present proceedings, the facts alleged to have been suppressed by the Claimants involve the existence of the previous judicial reviews as explained herein, the issues raised thereof and the outcome therefrom. | must first note that this was indeed a material fact that should have been disclosed in the Application for judicial review of the matter herein and any other matter. Reading in between the lines of the sworn statement that was in support of the Claimants’ application for permission to apply for judicial review, particularly in paragraph 7, the deponent therein articulated to the point that there had been previous litigation in relation to the regulations being challenged and, in those proceedings, the regulations were being challenged on grounds other than the grounds being advanced in this matter. 57.1 must say, this was not a full disclosure. This perhaps can be called a partial disclosure which would still deprive the court of some material that could necessitate the grant or decline to grant permission. | wish to agree with the Defendants that the Claimants had to disclose among others, the grounds, issues, and outcome of the previous proceedings. | say this on the basis that as | have held herein, the issues in the other reviews were also to the effect of seeking to annul the EMR2015. In my considered view, it was incumbent on the Claimants to disclose these relevant matters fully. 58. Judicial Review No. 20 of 2016 and its subsequent appeal was discussed in the skeletal arguments. My first question is why they opted not to include the proceedings in the sworn statement but rather discuss one of them in the skeletal arguments. | ask myself if the latter was intended to be a disclosure of facts or just an argument to move the court to grant the permission regardless of there being a Supreme Court decision on the same matter. | say this bearing in mind 23|Page that it is the sworn statement that is primarily considered as far as statements of facts are concerned. 59. Even if | am to consider the discussion of Judicial Review No. 20 of 2016 in the skeletal arguments as full disclosure, there is still the issue of the other reviews not being disclosed. This of course does not include Judicial Review No 54 of 2014 as | do not see that it was material to be disclosed for reasons explained in paragraph 39. There is therefore Judicial Review No. 1 of 2020. | must repeat that in my mind, the mentioned judicial review was also challenging the same EMR2015 with the effect of annulling them. Contrary to the Claimants’ view, | hold the view that it should have been disclosed. The outcome of the proceedings should have been mentioned. It may be noted that there was no substantial hearing for the said review. | hold that it was incumbent on the Claimants to disclose why that was the case. The fact that the issues raised herein were different from those raised in the mentioned review cannot save the Claimants from their duty to disclose the existence of Judicial Review No. 1 of 2020. | must therefore hold that there was indeed suppression of material facts by the Claimants at the time they were applying for permission to apply for judicial review. This is surely a good ground calling for a discharge of permission to apply for judicial review and dismissal of the application itself. Conclusion 60. In view of the foregoing analysis, | am actually convinced that permission to apply for judicial review indeed would not have been granted to the Claimants if the court was made aware of the numerous previous court proceedings relating to this same subject matter. Such successive actions in respect of the same subject matter, and the failure by the Claimants to bring all issues together in one plate, pretty much points to some kind of abuse of the court process by the Claimants. This Court is not in the habit of condoning such judicial malpractice. That has to be put to stop now. There should be an end to litigation and this is 24|Page one such kind. On that account, | do hereby proceed to discharge permission to apply for judicial review that was granted to the Claimants on the grounds of suppression of material facts and the proceedings being an abuse of the court process. The order of an interlocutory injunction that was also granted in their favour is accordingly discharged as well for having no legs to stand on. 61. The Claimants are condemned in costs Made in chambers, this 31%* January 2025 at Lilongwe High Court Registry | Howard Pemba JUDGE 25|Page