State (on Application of Jere) v Minister of Local Government (Judicial Review Cause 5 of 2022) [2023] MWHCCiv 40 (27 March 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION JUDICIAL REVIEW CAUSE NO. 5 OF 2022 BETWEEN: THE STATE (on application of Masida Jere) ...........cccccccceeceseceecesseeeeeces CLAIMANT AND THE MINISTER OF LOCAL GOVERNMENT.............0..00ccccecceceeceeececeeceeeccs DEFENDANT CORAM: Honourable Justice T. R. Ligowe Mr. C. Kambalame, Counsel for the Claimant Mr. A. Manda, Counsel for the Defendant Mr. K. Thadzi, Senior Court Clerk Mrs. J. N. Chirwa, Senior Court Reporter Ligowe J, RULING 1. Indeed, it was observed in Stripes Industries v. Attorney General (Minister of Lands) Land Case No. 46 of 2017 that the Civil Procedure Rules, 2017 do not provide for restoration of applications in Chambers as it does for trials in Order 16, rule 7. Therefore, there is no specific provision under which an application to restore a matter dismissed in Chambers would be made than under the inherent jurisdiction of the court. | would therefore not fault the Attorney General for bringing the present application under Order | rule 5, Order 10 rule 5 and under the inherent jurisdiction of the court. From what the lawyers have argued before me the biggest contention regards the principles to consider at such an application. The Attorney General advocates following the decision in Stripes Industries v. Attorney General (Supra)that the party who was absent should provide a reasonable explanation for their dbsence and that the court should also consider whether or not allowing the application to restore is likely to cause serious prejudice on the party. Counsel for the claimant on the other hand, advocates following the decision in Christine Mungomo v. Malawi Housing Corporation, Civil Cause No. 186 of 2015, where following Order 16, rule 7(5) of the Civil Procedure Rules the court held that the principles to consider are whether the applicant (i) acted promptly when he found out that the court had exercised its power fo strike out or to enter judgment or make an order against him; (ii) had a good reason for not attending the trial; and (ii) | has areasonable prospect of success at trial. It is important to note that “reasonable explanation for absence” is common to both cases. | also want to submit that to consider whether or not allowing the application to restore the application is likely to cause serious prejudice on the party applying for restoration, is somehow to consider if that party has reasonable prospect of success at the application sought to be restored. For a party with a good explanation for absence and who is likely to 10. 11. succeed if the application was to be restored, it will be prejudicial if their application for restoration were not allowed. | also think that prompiness is important in applying for restoration of proceedings in Chambers. So, much as the lawyers before me seem to argue at different levels, the principles to apply are the same. There is no question about promptness in this application, but whether there is good reason for the Attorney General's absence on 13' October 2022 when his application to set aside this court’s order for leave to apply for judicial review was dismissed. The explanation is that after a date of hearing of the application was given by the court, the Attorney General had not taken out the documents to serve on the claimant and was thus not aware of the hearing on 13!h October 2022. Failure to take out the documents and serve them on time was because the Attorney General has no Chambers in Mzuzu through which he would have followed up progress of the application he had filed. Counsel for the claimant blames the Attorney General’s Chambers for lack of diligence. He refers fo Counsel Andrea Manda's ability to call Mr. Thadzi, a court clerk at this Registry, to follow up on the matter on 13'h December 9022, stated in Counsel Manda’s sworn statement in support of the present application, and argues that nothing stopped him from doing the same after the Attorney General filed the application to set aside the order of 12. 13. 14. Ta 16. leave for judicial review filed on 1st September 2022, such that they would have known it had been given the date of 13'* October 2022. On the other hand, the Attorney General wonders how the claimant attended to the hearing on 13th October 2022 when he had not been served with any papers for the hearing of the application on that date by the Attorney General. Counsel for the claimant's explanation is that he saw that the application had been given the date in a cause list which was published by the Registry and came to attend and even served the Attorney General a sworn statement in opposition thereto. Upon being served with the response to their application which they had not served and had no knowledge that a date had been given, the office of the Attorney General should have woken up and checked with the Registry what was happening. Perhaps then they would have known how their colleagues came to know about the case. Here they slumbered. On the other hand, Counsel for the claimant having seen that the application was coming on 13h October 2022 but had not been served, should have inquired from their colleagues how that was possible, or as normally is the case, they should not have attended to it, knowing that the court does not normally proceed in the absence of the party who should have been served with the application without proof of service. | doubt it that Counsel for the claimant thought that they might have been served and somehow misplaced the application. When Counsel Kadzipatike appeared before the court for the claimant on 13!" October 2022, he said: lf. 18. ry, 20. “I represent the claimant in this matter. The defendant has not turned up for these proceedings. | have not received any communication from the office of the Attorney General regarding the absence of Counsel representing the defendant. The clerk of the honourable court has also not received any communication from the Attorney General's Chambers regarding the absence of Counsel. The application to set aside leave for judicial review was filed by the defendant. We therefore pray that the application should be dismissed with costs. That is all.” Bearing all that transpired for Counsel to appear on this day, it is clear he was bent to obtain a dismissal of the application with costs. Otherwise, the best to do, given the background, was to explain how he got to know about the matter without having being served, as has been done in the sworn statement in opposition to today’s application and seek for the court's direction. in view of all the above, despite the Attorney General's lack of diligence, | find that he has given a good explanation for his absence at the hearing of 13th October 2022. The next question is whether he will be prejudiced if his application is not allowed to be restored. As earlier stated, this is to see if he has a reasonable prospect of success on the application intended to be restored. The main argument for the application is that at the time the claimant applied for leave to apply for judicial review, he did not disclose he had initially objected to Blessings Jere being installed Sub Traditional Authority Yohane Jere and that the President directed the Ministry of Local Government to investigate the matter, upon which the Mmbelwa Chiefs’ zs 22. 23. Council dealt with the matter in lengthy deliberations, at the end of which they still came up with the name of Blessings Jere. This may require to be tested than just being dismissed by reason of the Attorney General's default to attend the hearing, especially bearing the manner in which Counsel for the claimant presented himself before the court. The application to restore the application to set aside the order of leave for judicial review is therefore allowed with costs thrown away. Made in Chambers this 27" day of March 2023.