State v Commissioner General of Malawi Revenue Authourity and Another Exparte Madise (Judicial Review Cause 1 of 2020) [2021] MWHCRev 3 (7 October 2021)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY REVENUE DIVISION JUDICIAL REVIEW CAUSE NO. 1 OF 2020 THE STATE AND THE COMMISIONER GENERAL OF THE MALAWI REVENUE AUTHORITY ................ 15? DEFENDANT MINISTER OF FINANACE, ECONOMIC PLANNING AND DEVELOPMENT. .........ccccscccecsccecereroeseseeenseeees 2NP DEFENDANT EX-PARTE:; JUSTICE DINGISWAYO MADISE .........ccseecececeseeeeseeeneeses CLAIMANT CORAM: HON. JUSTICE R. MBVUNDULA V. Gondwe and W Chibwe, Counsel for the Applicant J Kambumwa and F. Fransisco, Counsel for the Respondent Chimang’anga, Official Interpreter RULING The claimant is a Judge of the High Court of Malawi. Under the Conditions of Service of Judicial Officers in Malawi the claimant is entitled to import duty free one motor vehicle every four years. In 2016 he imported one such vehicle and in October 2020 he disposed of the same by way of sale to a third party. The 1* defendant, upon being requested by the claimant to allow the claimant to dispose the 1 motor vehicle duty free, through a letter dated 19" November 2020 (exhibit PC 3 to the affidavit of Patrick Chisasa for the 1% defendant) declined to grant such permission on the ground that there was no legal provision in the current Customs and Excise (Tariffs) Order enabling the claimant to dispose of his motor vehicle without payment of duty. The 1‘ defendant went on to state that the current Customs and Excise (Tariffs) Order allows transfer of ownership of duty free motor vehicles to another duty free person or project, otherwise duty was payable when transfer of ownership was to a non-privileged person. On those grounds the 1* defendant demanded duty from the claimant. In reaction to that communication from the 1“ defendant the claimant instituted judicial review proceedings against the 1* defendant. The claimant subsequently joined the Minister of Finance and Economic Planning as the 2™ defendant. When the judicial review application was set down for hearing the 1“ defendant, through counsel, made an application to be removed as a party.to these proceedings, purportedly under Order 10 rule 1 as read with Order 6 of the Courts (High Court) (Civil Procedure) Rules, 2017 (the CPR) on the ground that the 1“ defendant made no decision giving rise to the challenge by the claimant, in the judicial review, as the claimant, in counsel’s view, was challenging the Customs Procedure Code (the CPC) provided for under the Customs and Excise Act. Counsel submitted that the 1* defendant was simply an implementer of what was enacted under the Customs and Excise Act and as such the Minister of Finance and the Attorney General were the rightful defendants, and not the 1“ defendant. In the further submission on behalf of the 1% defendant, with reference to a point raised by the claimant that since Cabinet Ministers and Members of Parliament were allowed to dispose of their vehicles bought under similar arrangements as those for Judicial Officers there was nothing in the CPC stopping Judicial Officers from similarly benefitting, counsel reiterated the argument that the 1 defendant was just implementing the CPC and that MRA did not institute that law and as such the 1* defendant, being just an implementer, should not be penalized for so doing. In the premises, it was submitted for the 1 defendant, that the application was better argued by the Attorney General whose client, the Minister of Finance, made the decision. In response, counsel for the claimant wondered whether counsel for the 1“ defendant had taken time to look at the specific reliefs sought by the claimant herein. Counsel then referred to page 2 of the ex parte notice for permission and pointed out that the 2 first relief sought was specifically in respect of a decision of the Commissioner General of the Malawi Revenue Authority (and not the Minister or the Attorney General) declining to grant the go-ahead to the claimant to dispose of the motor vehicle duty free. In counsel’s view, therefore, the 1* defendant was more a party than the Minister. In counsel’s further submission the claimant found himself seeking the remedies herein because of exhibit PC 3 abovementioned by which the 1“ defendant communicated his decision. Counsel expressed surprise that the party who made the decision sought to be removed as a party on the basis that he did not make one but that it was the Minister of Finance who did. Counsel for the claimant submitted that the issue about the CPC was just one of the issues raised in the judicial review application. In reply counsel for the 1“ defendant found herself conceding that it indeed was the 1“ defendant who made the decision to decline the disposal of the motor vehicle duty free but reiterated that the basis for seeking the removal of the 1° defendant as a party remained that the 1 respondent was simply implementing the CPC and that it was the CPC, enacted by the Minister, that enabled the 1“ defendant to act as he did. As earlier on stated the within application was purportedly made under Order 10 rule 1 of the CPR. The same is in the following terms: 1. A party may apply during a proceeding for an interlocutory order or direction of the Court by filing an application in a proceeding in Form 4. I should point out that Order 10 rule 1 does not apply here as the application under consideration was made orally and not by way of filing in Form 4 under the CPR. Oral applications are permissible under Order 10 rule 2 (2). Instances where the court may order that a party to a proceeding is no longer a party are provided for under Order 6 rule 8 as follows: 8. The Court may, on application by a party, order that a party in a proceeding is no longer a party where a) the person’s presence is not necessary to enable the Court to make a decision fairly and effectively in the proceeding; or b) there is no good and sufficient reason for the person to continue to be a party. It is evident in the present matter that the claimant’s complaint was triggered by the 1“ defendant’s response to his application to dispose of the motor vehicle in question duty free, i.e. exhibit PC 3 aforementioned. But for that refusal or, in other words, had the 1° defendant allowed the claimant’s application, the claimant would not be before this court. A reading of exhibit PC 3 points to the fact that the 1" defendant was not communicating a position taken or conveyed by the Minister but the 1* defendant’s own position based on his interpretation of the CPC in question. And the 1* defendant advanced reasons for his decision based on his understanding of the CPC. And it is that decision and the reasons given by the 1“ defendant, among others, that the claimant is challenging in the judicial review. That the position communicated by the 1“ defendant emanated from his own considerations is demonstrated, for example, by the contents of paragraph 9 of Mr Chisasa’s affidavit where he states as follows: 9, THAT there is no special Customs procedure (regime) or Customs Procedure Code (CPC) for Judges and Judicial Officers under the Customs and Excise (Tariffs) Order. However, for qualifying judicial officers, a letter comes from the Secretary to the Treasury instructing the Commissioner General to clear the motor vehicle duty free. Attached is a document marked as PC 4, The said PC 4 is a sample letter whereby such instructions as are mentioned in paragraph 9 of Mr Chisasa’s affidavit were previously made and communicated from the Treasury. | Now in the present case had it been that it was not the 1% defendant who made the decision not to allow the claimant to clear his motor vehicle duty free certainly the 1° defendant would have produced evidence that the Secretary to the Treasury (or someone else on his behalf) had declined to give the authority sought by the claimant as per the practice referred to by Mr Chisasa in his affidavit. None was availed, nor was such an assertion made. Order 20 rule 1 (b) (iii) of the CPR provides that judicial review shall lie with reference to a decision, action or failure to act in relation to the exercise of a public function in order to determine “its justification of the reasons provided, if any ... where a right, freedom, interests or legitimate expectation of the applicant is affected or threatened.” In the case at hand the 1“ defendant did make a decision not to allow disposal of the claimant’s motor vehicle on the basis of the reasons or the justification already alluded to. This matter certainly falls within the ambit of Order 20 rule 1 (b) (iii) of the CPR. A decision was made, and reasons therefor given, by the 1“ defendant. There has been no communication on the matter from any other person in response to the claimant’s application. Additionally, in my considered assessment, the dictates of Order 6 rule 8 compel, rather than excuse, the 1 defendant’s presence in the present proceedings as his presence is necessary to enable this court to fairly and effectively resolve the issues arising herein, which issues, for all intents and purposes, emanate from a decision of the 1 defendant. I do not therefore agree that Order 6 rule 8 justifies that the 1* defendant may herein cease to be a party. To the contrary, on the facts, the removal of the 1 defendant from the proceedings would frustrate the open and fair disposal of the dispute as this court would be deprived of vital material information. In the premises I hold and order that the 1" respondent remains a party to the proceedings herein. The application to be removed is accordingly disallowed with costs. Delivered this 7" day of October, 2021. R Mbvennu JUDGE