Speaker of National Assembly v Tembo (27 of 2010) [2010] MWSC 12 (10 June 2010)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE CryIL APPEAL NO.27 OF 2O1O (Being Lilongwe High Coutt Registry Misc. Ciuil Cause.n[o. 565 of 2009) BETWEEN: SPEAKER OF THE NATIONAL .. ASSEMBLY trX_PARTE ..... APPLiCANT HON. JOHN Z. IJ, TEMBO .. RtrSPONDtrNT CORAM: HON. JUSTICE A. K. C. NYIRENDA, SC, JA Dr. Nkhowani, Counsel for the Applicant Kasambala and Kita, Counsel for the Respondent Mr Mwale, Official interpreter trthel Matunga Chisale (Ndunya) Senior Personal Secretarl' RULING NYIRENDA, SC, JA This is an application for stay of erecution of the Order of Hon. Justice Mzikamanda made on the 7th M^y 2O1O at Lilongwe where the court made declaratory orders and furLher orders for the applicant to compiy u'ith. Before I go .r1r)l further with the application Counsel for the respondent has raised preliminary points of objection to the application for consideration. Severa-1 such points have been raised br,rt the main points are that the summons is not sealed and that the jurat to the applicant's affidavit in support of the application is on a separate and its own page to the rest of the affidavit. It has also been submitted that the respondent has not been given sufficient time in accordance with the Practice Direction of the court. It is yet submitted that the applicant does not come to court with clean hands because to date he has not complied rnrith the order of the court. in all and for these reasons, it is prayed that the application be dismised or unless orders be made for compliance before the application can be heard. I acknowledge these observations by Counsei and the response made by Counsel for the applicant. I wouid have wished to deal with each one of these matters at some length for what they are worth; but I rniii oniy dea-l u'ith those points that seem to be of some substance. For those that I will not discuss my conviction is that the irregularities do not go deep into the substance of the application and can be cured without undue hardsirip to the resoondent. - LV trrurur ^^^. D'^ The Practice Direction (Arguments in the Supreme Court of Appeal) provrdes that when presenting skeleton arguments in the Supreme Court, Counsel shali, with regard to interim Orders and related matters, exchange skeleton arguments as betu'een parties rn'ithin 74 days from the date of filing tlre appeal. While the parties indeed have iatitude of 14 days and miqht wish to insist on the '1 4 davs the Direction does not stop the parties from exchanging skeleton arguments sooner and harre their matter dealt with soonest. This is the impression the Court had about this matter and therefore allowed for a hearing soonest. The Court observed that both parties were moving in fairly swiftly. In anycase what the Court u'ould have thought is that both the applicant and the respondent should have been insisting on a speedy determination of the matter than insist on the exhanstion of the I4 days. uq-) Lrrv LrtL vrf ut I l The only other matter I should consider is that t1-re applicant does not come to Court with clean hands. I car-r well see the delema this matter has posed. Since the order of the court beiow the applicant has been seeking stay of execution. So determined are the applications it .t the present application v"'as hled on the sarne day that the lou,er court refused to grant the applicant stay of execution of court order. I have had occasion to look at the ruiing of Justice Mzikamanda on the application for stay before him. It sets out the chronolory of events. The Honourable Judge delivered his order on Friday the 7th May 2oro. The ruli.rg *ho*s that the application for stay before the learned Judg" *." filed ex- parte on wednesday following, the 12 May 2oro, together with an application for leave to appeal. The Honourable Judge granted leave to appea] but ordered that the application for stay be made inter-partes. That process ied to the hearing of the application on 21.t May 20ro and eventually the ruling of the 28th May 2ora. Meanwhile on the loth of May 2010 the Malawi congress Party presented the applicani with the results of an election that was conducted for Leader of the opposition pursuant to the direction of the order. It is acknowledged that the applicant was expected to immediately attend to that matter in line u'ith the Court order. He did not but instead proceeded to court turo days later and applied for stay of execution. Although this event speaks for lack of heed and care on part of the appiicant, I do not get the irnpression that the applicant was all out to a contumacious disregard of the order of the court as Mr Kasambara puts it. The applicant has tried to morre in very quickly at every stage to seek stay of execution of the Order. obviously while the applicant is chasing stay of execution of the order he cannot be expected at the same time to compil, with the sarne Orcjer. I am not persuaded by any of the prelirninary objections to be compelled to dismiss the application on that basis alone, neither do I find it prudent on what is before me alreadlr 1s give any uniess order. i wili therefore proceed to the: substance of the appiication. in giving a background to this matter i shor-rld do no more that extract the relevant part in that regard from the Order of Justice Mzikamanda. He summarises the matter in this way: The factual background in so far as the Appticant is concerned is that following the May 2009 General Elections in this country the Applicant wcts elected Member of Parliamerft for Dedza South Constituenca. He is also President of the Malanai Congress Parly. Tlrc said Malawi Congress Partg u)as the larqest opposition partg in Parliament uith 26 members. Being the largest opposition partA in Parliament, and under tLrc National Assemblg Standing Orders, it wa-s supposed to elect among its members someone to be Leader of Opposition. That is tLrc waA things tta.ue been dunng 1994, 1999 and 2004 during the first sitting of neut Members of Parliament. On 2 7't June, 2009 as had been tLte ca"se in the past, the Mq,Iawi Corugress Partg presented tLte Applicant to the Respondent as their endorsed Leader of Opposition. Around the same time the follotuing members of the Malauti Congress Party informed the they were disassocicttirug respondent that themselues endorsing the Applicant as the Leader of Opposition, namelg Honourqbles Chafulcira, Kayembe, Malipa snd Thgolera. Theg hotueuer did not proceed to propose anA name they uLished should be considered as Lectder of the Opposition. Again sn QQth Jurue, 2009 all members of Malaui Congress Partg, minus the persons mentioned, endorsed tlrc Applicant as the Leader of Opposition a.nd presented his rLame to tlrc Respondent to recoanize him as such. Howeuer instead of doing so, the Responden,t table:d tl'tis internal dispute witltin the Malawi Congress Partg before the uthole House a.nd allowed Members of Parliament on the Gouentment side to discu.ss if. The result utas thqt a motion LUas moued to ctmend the Staruding Order prouidirug fo, the Leader of Opposition. It u)as Lroweuer referced to the Legal Affairs Committee, wLtich was not yet in place a.t tLrc ttme. The def,nition of Leader of Opposition uthich u)as anrrent was found in Clause 3 (3) of the Nationa.l Assembly Standing Order uthich prouided thus: Leo"der of Opposition mealls the parliamentary leader of the largest partU, elected bg the parliamentary membership, which is not in Government or in coalition with q. Goaernment parta, and which is recognized bg the Speaker as such, These attempts bg the disgruntled group u)ere interuded th"at the aboue definition be amended to read: Leader of Opposition mea,ns the parliamentary leadership of the largest pantg which is not in government or in coalition with the Gouernment paftA who is also elected bg all members of parliament present and aoting. On these facts as stated bU the Applicant, it is the Applicant's contention that in ct democratic set up it is the majority tuLrc ntle. The majoitg of the members of Malawi Corugress Party hauing endorsed tLte Applicant the Respondent u)os bourud to recognize him. A Stq"nding Order amended after the majon.ty er'tdorsement uould ttaue retrospectiue effect and retrospectiue application of a lqw is unlatuful. The Applicant contended that the Respondent had acted unfairlg, ctn.d unreasonablg illegallg, unconstitutionctlly ir't not a Leader of Opposition.. recognizing the Applicant as TLrc Standing Order on election of the Leeder of Opposition has since been amended arud reads a,s follouts: Euery rnernber present in the National Assernblg sho.ll indicate on a bo.llot paper to be supplied bg the clerks, the name of the proposed person who he or she desires to be the Leader of the Opposition. Upon consideration of a-li these matters the learned Judge made the following Orders: I declare that under Standing Order 3 (3) the Resporudent wq-s dutg bound to recognize cts Leader of Opposition a person tuhose neme is submitted to Ltim from the largest opposition partA in Parliament and that that responsibility is for the Speaker qlone. He onlg needs to satisfg himself that the said person was elected by the parliamerutary membersL'tip of that largest opposition partA. I also declare that the Respondent failed in his responsibilitg under Standing Order 3 (3) and qcted unlaufullg, ultra uires, unreasonablg, abdicated his responsibilitg and acted in uiolation of the democratic priruciple that majoity rules as utell as in uiolation of the Lturnqn rigLtts of there_fore unconstitutionally when he referred the demand J'or recognition to the lVcttional Assemblg for debate and resolution. I hctue alreadg obserued thqt the resportsibility to recognize tLrc Applicant as Leeder of Opposition ls utith the Speaker and th.e Speaker ctlone. It would be usurpation of pouers of tLte Speaker if the Couft wes to grant such recoqniLion. the Applicant and Hotaeuer, uthat tltis courl cen do it to direct recognitiort where Standing Order 3 (3) hc's been fulla complied utitLt by tLrc Applicant. The Respondertt is duty-bourud to recognize a person dulg elected bg the largest opposition partA in Parliament. To be fair to the Respondent the word used in the demand letter of the Applicant was "ettdorsedt' irtstead of "elected" and this may hctue created doubt on his mind uthether" tlrcre had been qn election ctt all. To cleqr ang doubt that there had been an election or not bg the Malawi Congress Party cts to wLro the Leader of Opposition sLtould be, I direct that the mqtter goes back to the Mqlquti Congress Partg uLto should conduct an election utithin the meaning of Standing Order 3 (3) of the IVational Assemblg. That election must be dorte tuithin 14 days hereof arud the name of the elected person be submitted to the Speaker, the Respondent, uh"o shall recognize the elected persorL to be Leader of Opposition tuithin the meaning of Standing Order 3 (3) of the National Assembly. The present application i.s supported by the alfidavit of Dr Zolornphi Nkhowani who informs the Court that this is a second attempt to have stay of execution, the first attempt before the court that made the Order having been deciined. The paragraphs of the affidavit upon urhich the application is premised contend as follows: 12 That the appellartt being dissatisfied u.tith tlrc judgment of the lower court h"s"s appealed to tLte Malaui Supreme Court arud among other grounds of appeal challenges the nulliftcation of both the amendment to the StcLnding Orders 3.3 and the subsequent election of Hon. Kayembe es Lead.er of Oppctsi.tior:L. 13 That the Appellctnt also ctrullenges the junsdictiott of the Court to enquire into tlrc legislo.twe process and the fitness of the matter for judicial reuieu. 14 That the consequence of the appeal is tLtqt if the appellant succeeds, the annulled standing ord.er 3s (A) (6) of the lVational Assemblg tuitt be restored, as the operatiue standing ord"er for the election of Leader of the Opposition in the House. Also Hon. Kagembe utill be restored to the position of Lead.er of the Opposition. 15 That the judgment of the lower court appealed, against compels the appellant to recognize the respondent as Leader of the Opposition in terrns of the repealed standing order s.3 of the lVational Assemblg. 16 That if the said judgment is compliecr tuith, it utitt render the outcome of the appeal pointless or nugatory if ttrc appellant succeeds. Thus it tuill rob the appellant of the fruits of a successful appeal. 17 That the interests of justice and. balance of coruuenience requires tlmt the execution of the said. judgment be staged pending the heanng and- determination of the appeal bg the Malauti supreme Court. Dr Nkhowani depones, by a supplementary affidavit, tcr the foilorn.ing facts: 4 Tlut on Vh Mag 2010, tLt"e Honourable learned Justice R. R. MzikcLmanda deliuered, a rulitg in Miscellaneous Ciuil cause lVumber s65 of 2009 in wltich among otlter tttings the court quashecl the amendment to standing order 3.3 of the lvatiorual Assembly qt'td nullif,ed tLte election of lrortourabre Kagembe as Lectder of Opposition. 5 TLtctt in the sqid Judgment the courl ordered the Parliamentary membership of the Malauti Congress Partg to hold an election witltin 14 dags fro^ /ttL MoA, to elect omong them a person to be presented to the Speaker to be recognized as Leader of the Opposition iru tenns of the repealed Standing Order 3.3 of the National Assemblg. 6 That on 1)th Mag 2010, the respon.dents conducted an election that not onlg included the Parliamentary membersltip of the Malaui Corugress Party, but also irudependent members of Parliament in contradiction of the court's ruling of 7t, MoA, 2010. Exltibited hereto is a communicqtion from the respondent to tlrc appellant shouting members that conducted the election, marked CMN 1. 7 That I repeat paragraph 6 aboue and state tltat the last tLtree members of parliament i.e. Hort. Joyce Azizi Bandq MP Lilongwe Mpenu IVkhoma, Hort Jorome, Geruanzio Waluza, MP Mchinji Souttt and Horu. Va-sco Chimbalu, MP, Kasungu South ore independent members of parliamertt. Exhibited are pnnt outs from the Malawi Gouernment Gazette Volume, XLVI No. 25 of 2gtn MaA 2009, pages 396, 399 ctnd 400 Marked CMM. AIso exLtibited are print outs from the list of the current composition of the Nqtional Assemblg, posted at tl'te lYational Assemblg's official site at wu.tw. pctrli.anten.t. qou. ntut mqrked CLIN 3, CMM and CMN 5. I should now set out the response to these matters brr Mr Kita, Counsel for the respondent, rn'ho by his alfidavit states, referrir-rg only to relevant paragraphs: 11 That more importarfily, I refer to Paragraph 11 of tlrc Affidauit in Supporl and auer that follouLing and complyinq utith. tlrc Judgmertt of the Court of the, 7tl' of MctA, 20 10, the L[alatui L)on.gress Parltl parliamentory membership on llls Qtt of May, 2010 conducted an election at Capital Citg Motel witLtin. the meaning of Standing Order 3 (3) uhich saw the Applicant utirtning tlrc position of Leader of Opposition by 25 uotes against Hon. Mrs Maureen Bondo and Hon. Paston MtLtyoka uho also contested and got no uotes. The deponent attend,ed. and witnessed the said election ctnd is thus deponirtg to matters utLtich ere directlu utithin /zls personctl. knoutledge. 12 That on the 10th of Moa, 20i0, on behatf of tLte Malawi Congress Party I serued on the Respond-erut the result of tlrc election together witLt tLte Judgment of tLte Honours"ble Court herein. The Respondent personallg acknowledged in writing to ha"ue been serued thus. I attctch and exhibit a copa of the letter -from the Malanai Congress Partg u,thich wos serued, on the Respondent marked "WK2". 13 That in uieut of the foregoing, there is notLting to be stayed, the Judgment hauing alreadg been complied utith. The concluded enforcemertt renders the present applicqtion nugatory and therefore ougLtt to be dismlsse d ex dibito justiciae. 14 That I refer to paragraph 1 5 of the ffidauit in support and auer that the Appellant l:Lc's totally misconstrued the Judgment of the lower uthicLt he wants staged in that notuLtere in that Judgment does the Judge compel the Appellant to recognize the Resporudent as Leader of Opposition. Rather, ttrc Judge ordered Malctwi Corugress Patly to uithin i 4 dags conduct arL el.ection to elect tLte Leq.der of Oppositiort wLtose name u)es to be subnitted to tl.te Appellartt for recognition. It could as uLell l-taue been that anA of the contestants could haue won tLrc election. r0 15 That furthermore, I refer to Paragraph 16 of tl'te Affidauit in support and GUer tl^tat tl'te Appellant does not substarfiiate how the appeal utould be rendered nugatory in tLrc euertt of it succeedirug. Neither the Judgment of the Ilonourqble Courl, nor the grounds of appeal suggest there ls or there utill be an ctbolishment of the Office of the Leader of Opposition, A successlfitl appeal utould simplg mecuL the Applicant leauing the Office of Leader of Opposition tuhich he hc-s assumed and it being filled up in uLhateuer walt the Supreme Court utould ntle. 16 That the Appellant hc-s also not demonstrated any hardship in complAing with the Judgment of the honourable Court since the 10th of Moa, 2010 uhen he utas serued utith the Results qnd tlrc Judgment. He is thus coming to the Coutl for this Application witLt dirty hqnds showing that already he is not ready to obey it, a conduct uthich takes us back to uthat u)as the Applicar^tt's cnuse of action in instituting the witltin judicial reuiew proceedings. 17 Tttctt euen afier the Order dismissing their application for Stag on the 29th of MoA, 2010, the Appellant hc-s continued for rLo reeson at all to disobeg the Order of the Court u-titl.timpunity. 18 That in uiew of the .foregoing, there is no basis for staying tl'te Judgment of the Court other than denying the Respon.dent the fruits of l:Lis litigation t-uhiclt Lte is entitled to enjog. The interests of .justice and pendulum of conueruieruce lie in dismissing the Application in its entiretg". Stay of execution of judgment pending appeal has becorne comrllon place in our courts and over the years ciear principles for consideration have emcrged. The guiding principles horvcvcr alc in ()rder 59 r. 13 I 1 of the Rules of the Supreme Court. That (Jr der cit.es a number of cases specificaily dealing u'lth stay of exe cution o1- I] judgments. Some of the cases have been referred to by Counsei itr t1-ris matter from which the follorn'ing cardinal prir-rcipies resonate: Ltt. LU. TLte Court does not make the practice of depiuin.q a success,firl litigant fnits of his judgment. The Courl should then. consider uhether th.ere ere special circumstot'Lces which militate it t fctuour o.f granting the order for stay and the orrus will be on tlrc applicant to proue or shoul such special circumstznces. The Court is likely to grant stay uuhere tLrc appeal tuould othentise be rendered nugatory or tIrc appellant utould suffer loss utLtich u;ould not be comz ensated in damaq es. Vfttere the appeql is against an a.rDerd of damages th.e established practice is that stay u;ill norntally be granted wLtere the appellantt satlsfes the courl that if the damages were paid, Lhert there will be no reasorlable prospect of recouerirug tLrcm it't tLrc euen.t of the appeal succeeding. Fortunately for me from the skeieton arguments bl,' Counsel it is appa-rent that we are di conversarrt u'ith the practical application of these principles. It rn'as emphastzed tn Ulalo Capital Investment Limited v Southern Africa Enterprise Development Funding, MSCA, Civil Appeail No. 45 of 2OO9 that urhen determining an application for stay of execution it is important to bear in mind alu'ays that tirere is at the time a binding judgment r,r'hich even the Court of' Appeal must respect until set aside or otherwise modified. In City of Blantyre v. Manda and Others Civil Cause No. I 131 of 1990 the court summartzed the principies in thrs passage: I tltink it is ctlutaAs proper Jor tlte Courl tr: stctr"t. frorn t|rc uieut point that a success/ul litigant ougltt nol to l: be depriued of the fnits of Ltis litigation The Courl should then consider uthether there are special circumstances which milit.a"te in fauour of qranttirLq the Order of stag and the on.us tuill be arL th.e applicant to proue or shou suclz special circumslerLCes. As for special circumstances it is trite that such would varry frotn case to case and expectediy so. Further more the same set of facts could result in different consequences and have different impiications in different cases. It has long been acknowledged though that the pararnount consideration in applications of this nature is whether the appeal will be rendered nugatory if the application for stay is refused. Once the court is satisfled that the appeal rn iil not be rendered nugatory by refusing the appiication to stay the judgment, it would be wrong to deny the successful litigant the fruits of his litigation on any other fanciful and capricious considerations, see Tembo v Industrial Development Group (2) [1993] 16 (2) MLR 878. The justness of this is in the fact that while it is the duty of the court to see to it that a successful litigant should access the fruits of his litigation as quickly as possible, it is also the court's duty to ensure that it does not come about that a successful appea1 is rendered nugatory. The Minister of Finance and The Secretary to the Treasuury v Hon. Bazuka Mhango and Others, MSCA Civil Appeal No. 17 of 2009. This Court attempted to explain what could possibly amount to an appeal being nugatory in Auction Holdings Limited v. Sangrvani Judge Hara and Others MSCA Civil Appeal No. 69 of 2009. It is there stated: According to Bryan Garrner irt "A Dictionary of Modent Legal [Jsage" Secortd Edition, 'nugatoru' is not ct legal word per se, but it is a Leanted tuord. fauoured by lautyers. It means 'o-f no force, useless, inuatid and so for1h. In oth,er" uords rtugatorg rs a state of affairs. A state o_f affairs where the appectl will not yield results; utttere ttrc appellanfis eJforls, euen if successful, will be a wctsted eJforl -for laclt of li remedA. Pursuant to these considerations, as the court put it in Circte Plumbing Ltd a Taulo !19931 (16) 2 MLR 506 arl appeal can only be rendered ruugatory if for exannple the subject nrqtler of the appeal is destroged or cea-ses to exist or cttanges substantiallg or tuhere if the appeal succeeds it taould be impossible to recouer tlte da.mqqes th.ctl tnould be sought. The real question for the court is whether the appellant will engage in at1 exercise in futility. Houourable Justice Mzikamanda by his Order nuilified Standing Order 35 (A) (6) and restored Standing Order 3 (3) as the Starding Order of tire Nationa-i Assembly by rn'hich Leader of the Opposition would be elected. In consequence the Judge also nullified the election of Honourable Kayembe who had been elected Leader of Opposition pursuant to Standing Order 35 (A) (6). The Court then directed that the matter goes back to the Ma-lawi Congress Party to conduct an election in accordance urith Standing Order 3 {3) within 14 da1's of the Order. The fina-l direction of the Court was that the respondent sha1l recogntze ti::.e elected person to be the Leader of the Opposition u'ithin the meaning of Standing Order 3 (3). Peragraphs 15 and 16 of Dr Nkhowani's affidavit in support of the application are the operatirze paragraphs. Apparently Counsel has missed the point. The Order by Justice Mzikamanda does not compel the appiicant to accept the respondent as Leader of the Opposition. Infact the Honourable Judge took the trouble of specifically clarifying that point in case he would be misunderstood in the uz&y Counsel has misunderstood the Order. The Order rnerei5' compels the applicant to recogrlrze whoerter \\-as to be elecled as Leader of the House follorn'ing an election. Thert persol'I need not be the resoondent. By paragraph 16 it is said if u'ill render the appeal nugatory explaining Lhis paragraph tlris is arguments: the judgment was complied u'ith it if the appeal \^/ere to succeeC. In what Counsei sa1i5 b1'his skeleton t4 The majority of the cases or line of authorittes ctted has euolued from o juispntdence stemming from either financial or tangible subject mqtters of litigation. In such cases the tests requiring a partg seeking a stay to shcut that eitLter the subject matter uill be destroged or cease to exist by the time the appeal court hears and determines the appeal, for it to be nugatory are appropriate. Howeuer, there will be cases inuoluing intangibles suclt as nghts or an office. In such cases it would be erroneous for a cotLrl to adopt a rigid application of the 'destruction of subjecl matter' test. In sucLt co.ses these courts should look at the practical implications notu-tithstanding thcfi the subject matter uould remain intctct. In the present cose the subject matter is the office of the Leader of the Opposition. On the strict application of the 'subject matter destruction' test, tttis cannot be destroyed; lrcweuer it leads to absurd results. In this case Honourable Kagembe has been asked to step doun and Hon. Tembo is being asked to ascend to the position. SLtould the appeal succeed Hon. Tembo will be asked to step doutn and enter Hon. Kagembe agairt. Theoreticallg this is no big deal, but practically il is. A clear demonstration in our history is tLte case of Hon. Rea. W, Ndomondo as The State and Speo,ker of the Nqtionq.l Assernblg, Misc. Ciuil IVo. In that case the applicartt had worl a seat as Member of Parliqment for Machinga South East in the MoA, 19, 2009 Parliamentary elections. Hotueuer he u)as prior to the election conuicted and in the process los/ the seat bg operation of law under section 63 of th.e Constitution of Malawi. TIqe Electoral Commission then sougltt to conduct by-elections. Mr. IYdomondo applied for an injunction to stop tlrc bg-election till hls appeal against conuiction LUas heard. The applicatiort was declined by the High Courl. Later the I{igLt- Coutl quashed his conuiction. Unfoftunatelg, euen though tlrc subject matter (the office of Men'tber ctl' Parliament for Machinga South E,ast) LUas not destroged, his dqllt to it lmd been destroued or u)as made l5 unattainable. MeanwLtile sonteone Ltad been su)orrL tr a.s MP for the constituency. Such a tragedy c:ould hque been auoided if the courT had gran.ted the stay or irfiunctiott. From this case u,)e see similanties to the present case,. A similq"r scenario utould enlerge in tuhich if the appeal succeeds; the respondent may haue to be asked to step dowru and if he does not tLrc successrfi.rt appeal would be inconsequential or nugatory. The negatiue implicatiort of such ct scenario speaks in fauour of the coutl's exercisittg Its discretion to grant a stag pending the detennination of the appeal. The argument by Counsel is clearly flawed and the analog, with the Ndomondo case completely misplaced. In the Ndomondo situation there are now two individuals, both of them law{ully eiected to the sarne constituency as Members of Pariiament. Certainly the process was rushed in that case. The Ndornondo case. in my vier,r,', was a proper case u.here Stalr of execution of judgment should have been allou'ed, if sought, because of the possibility that the appeal would be nugatory rn the event of someone else being lau.fuliy elected as Member of Parliament for the same constituenc)'. In the present case, if the appeal were successful the appiicant wiil not even have to bother and ask the incumbent Leader of the Oppositi.on to step doin'n. A successful appeal will in itself be a directive to such person to step down and by the same decision the austed Leader of the Oppostion will once more ascend to pornrer. It is not clear to me what u,il1 make this process practicalll' s big deal as Counsel wants us to believe. As stated above the applicalt made a supplementarrr affidavit which to this court seems to be an afterthought. I have no difficulties mlrself u'ith afterthoughts, if only thel' bear a logicai and meaninpfrrl contribUtion to the original thorrt'ht or explar-ration tlrc original thought. If an afterthought is a contradiction to the original thought then it must be made clear that the original position is being abandoned. Lrrvq6IrL rvqLrvrl LA}Jtc rEtrra Lrr! rrrr Lv vI vl t6 By tkre supplementarlr affidavit it would appear it is being suggested that the reason why the applicant has not complied witl-i the Order of the Court is that the eiections conducted by the Maiau'i Congress Party to eiect Leader of the House were irregular. Ur-rfortunateiy Counsei does not come out rzery clearly in paragraphs 5, 6 and 7 that touch on the matter if indeed this is rn'hat ther appiicant is saying. One would have to read the skeieton arguments by Counsel on that point to understald the appiicant's position. The position of the applicalt on this point, reading the affidavit together with the skeleton arguments, and I am sure I am right, is that his failure to comply rn ith the Order is because the results of the election that were brought to him \ rere irreguiar'. In other words if the results were valid, he would have accepted them and in turn accept the chosen Leader of the Opposrtion. This is where I have difficulties to reconcile the applicant's original position and the afterthought. The applicant's original position is simply that the Order should not be complied rn ith because of the irreparable darnage it u'ill cause. In that case therefore the results of any election. valid or invaLid, reguiar or irregular would be of no consequence. The applicant's subsequent position is that if he was given a vaLid or regular election result he would accept and reco grlrze the Leader of the Opposistion and thereby comply with the Order. Obrziously these two positions taken by the applicant are not just paradoxical, they are clearly contradictory. Let us look as the situation in this way. If the position of the applicant is that he is ready to comply with the Order except that so far he has been given results of an invalid election. need the applicalt take out ar appiication for stay of the court Orcler-i) Obviousiy that would not have been necessary, The applicant u'ould simply have sat back ald said to Malau,i Congress Party please give me a rralid election result and i will compiy u,'ith tlre Order of the Court. As a matter of fact the Order made b1, the Court below is lucid and guides both the applicant and li'rc respondent on horn' to go about filing the position of Leader of the Opposition. Part of it should be quoted again to rnake the poir-rt here. The Order savs: tl I haue alreadg obserued tLtctt tlrc responsibilitg to recognize the applicartt as Leader of Oppositiotr is tuith the Spealrer and the Speaker alone. It utould be unsurpation of pouers of the Spealcer if the Courl was to grant sucLt recognition. Howeuer, uthat this court can do it to d.irect recognition where Standing Order 3 (3) has been .fullU complied with bg the Applicant. The Respondent is duty- bound to recognize a person duIU elected bg the largest opposition partA in Pqrliament. To be fair to th.e Respondent the uord used in the demsnd letter of the Appticant taas "ertdorsed" instead of "elected" snd this maA haue created doubt on his mind uthether there had been an election at all. To clear ang doubt that there had been an election or not by the Malawi Cortgress Partg as to tuLto the Lesder of Opposition should be, I direct that the mstter goes back to the Malauti Congress Partg wLto sltould conduct an election within the meaninq of Sta"ndinq Order 3 (3) of tLte Nqtional Assembly. The Order of the Court c1eari1, recognizes and endorses the authorily of the applicant to verify if there was a due eiection and not merely indorse rn'hat he has been presented rn'ith. I called upon Counsel for the applicanat to confirm to the Court whether the applicant had at all cornmunicated to the respondent that the reason why he had not accepted the result is that the election u'as inva]id for including Members of Pariiament rnrho did not belong to the Malawi Congress Party. There was no clean' arrswer from Counsel. It became obrrious to the Court that there was no such communication. It is worth noting that the letter from Ma,lawi Congress Party to the applicant communicating the results of the eiection has been exhibited b1r ths applicant. The ietter is dated 1Ott, May 201O ared was received by the appiicalt on same day. if there \ /as a response to that letter it would equa111z have been exhibited. I do not urant to be drawn into commenting on u'hetirer irrdeed the election bf, the Malau.i Congress Partv \A'as valid or ir-rva1id, l8 That is not rn'hat we are here for. For purposes of this application it will suffice for me to conclude that the applicalt is being less thart sincere, to say the least, i.n advancing the elections as a ground in support of this application. M1' candid finding is that the appiicant is seeking stay of execution of the Order of the Court irre spective of an election by the Malawi Congress Party and the outcome thcreof. The position of this court, as earlier conluded, is that recognition of a validly elected Leader of Opposition pursuant to the order of the Court would not render the appeal nugatory. Therefore and for ali that has been discussed herein and all the conclusions made, I see no merit in this application and I oisrniss it r,vith costs to the respondent. MADE in chambers at Biantyre this 11tr. dav of June 2o1o. yirenda, SC, Ir)