Deputy Governor of Reserve Bank of Malawi v CLC Forex Bureau and Ors. (11 of 2010) [2010] MWSC 10 (28 April 2010)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 11 OF 2OIO (Beirtg Iligh Courl MiscellctrLeoLls Ciuil C)cLuse 1fo, -7 a6 of 2009) BETWEEN: TFTtr STATtr, TF{E DtrPiJTY GOVtrRNOR OF'TI_Itr REStrRVE BANK OF MALAWI . . APPtrLLANT _ AND- CLF FORtrX BURtrALT & OTHtrRS . ... RtrSPONDE]\T CASFl CORAM: THE HON. JUSTICE NYIRENDA. SC. .iA Masumbu, Cor,rnsel for the Appellant Kaphale & Chokhotho, Counsei for the Respondent Balakasi, Official Interpreter Ethel Matunga Cl"risale (Ndunya), Senior Personal $s6rc'tanr RULING NYIRENDA, SC JA This is an application for stay of execution o{' the judgment of Honourable Justice Man.\-ungwa in the I{igh Cour-t made on the 5Lh dav of March 2010. 81' tl-rat juclgncr-rt the Court rnaclc' a number of declaraticrns. or-de l s eLnd remedies i.r4'iich, in the arlrpellar-rts'consicier-ation. u,ould lcarcl to selious irrepar able damage to the e conorr)\r o{- the r:oLllrtr^v if execlrted because some of t1-ie orders tirat tl're Court made wouid allor,r' the respondents to immediatell' start oper"ating their forex bureaux albeit u,ithout licences. The respc,rnclents see no ment in the application as, in their trieu,, there is nc) evidence that irreparable harm would be suffer ed b), the appellants or that the appeal would be rendered nugatorlr if Stalr \ ras not granted. It seems to me this application can bc deait urith in a very short discussion of the issues but in orcler for me to do thert I should set out the develooments in the matter. vrqr, r vrrv As summarised in the judgment of Jr-rstice Manl,.urng\r'a the facts are that the respondents were al1 operators of forex bureaux whose licences expired towards the end of December. 2006. The respondents' bureaux and those of others were consequently closed. Before the licences \^/ere considered for renewal earlv 2OO7 Governmelt introdtlced ne\; remrlations under the Exchange Control Act n211sirr F-.xr-h2r.'o.c Control (Foreign Exchar-rge Bureaux) Regulatrons 2OO7. The Regulations introduced a number of requirements and measure s urhich the respond-ents and several other forex bureau operators would have to comply v,rith for their licences to be renewed. The fact is, the Regulations \\/ere intended to control and regulate tire activities of forex bureaux at large. vvv\rrlllMt( vuuLvu I ulaL rrtLt 4vv tIL v\ t The respondents and other operators found the Regulations rather oppressive, cumbersome and tantamount to denf ing them the right to operating their businesses and therefore a contravention of their right to economic activit)'. By Civil Cause No. 16 of 2OO7 the responclents, together with other bureau operators, sought, by rnr?y of judiciai revieu,, sought to cl-rallenge the clecisron by Gover-nrlent to make eLnd introduce the Regulations among other reliefs. In the course of those proce edrngs the respor-rdents were granted an injunction against the invocation of the Regulatior-rs and the closure of their business operations r,rntil the determination of the l udjc'iaj r rvicr.r'. The respondents cor-rtinr-red to operate their bureaux on the strength injunction until 1l1s )ltrt Marcir 2009 u'hen, b), its judgment, the court dismissed the respondettts' action in its entiretl' except fot- r-equirir-rg Gorrernment to t-ecast the relevant ---- ,^] some respects. The t-esult of the dismissal of Rccnrlafinrec judicial revier.r, meant the respondents could no longer operate therr bureaux. ir The present case arises out of attempts b], the respondents to renew their licences which have been refused by the appellants for rrarious reasons rv1'rrch i need not go into u,ith any detail. Surfice to sum it up and say that the applications were lejected because. according to Ll-re appellanu- the respondents had not complied witir set "Gr,riclelines for Licencing and Operating Foreign trxchange Bureaux and had not passed u'hat was referred to as the "fit and proper test" required of the respondents before their licences could be rene\^/ed. The case before Justice Manl.ungwa was again by way of juciiciai leview where. in Lhc nrairr. tiic i'espondeirts challengccJ the decision making process, contending they \ rere not accorded a hearing and that in an1' event the decisions made by the appellants refusing tirem licences were unreasonable or were based on unreasonable considerati.ons. As stated earlier Justice Man1,'ungwa found for the respondents and determined, most importantiy, that tl-re grounds upon rn hich the appellants refused to rene\ / the respondents' licences were irrational and unre asonable; tantamount to defying 1ogic. Having so cleteimined the Judge proceeded to make e number of declarations ancl or ders tr-r that r-egard and further made remedial orders. I am not he le to determine ti're appearl ancl shor-rlcl therefor e resist the slightest ternlttation to comment on the luciclit1' of the declarations, orders and remedies tirat were macle bv the Honourable Judge; but I irelieve I arn entitlecl to observe that the some of the declarations, orders and remedies are not easy to comprehend and contextualise. That makes it difficult even for purposes of the present application to give the most appropriate directions. Be that as it ffi&y, i should still start from the premise that it is now our jurisprudence that it is not the usage of our courts to stay execution of judgments unless there are compelling reasons to do so, Globe Wholesalers -v- Lusitania Limited, 11 MLR 333, National Bank of Malawi -v- Nkhoma t/a Nyala Investments, MSCA Civil Appeal No. 6 of 2005. Of the declarations, orders and remedies made by the learned Judge a few explain the position of the matter and I proceed to set them out in the words of the judgment: "Consequently declaratlons; make the follouirtg orders and (1) That the decislons bg the respondent requinng all applicants to acquaint themselues tuitLt the elements o/ the Jit and proper test and complg thereutith tpitLtin less than slx (6) da14s before submitting their responses to the fit and proper /es/ is null and uoid on the basis that the same is utednesbury unreasonable and in breach of the ap plicant' s le g itimate e xp ectations. (6) An order alcin to certiorari quashing the decisions not to renelt-) the applicants' forex bureau licences for being irrationa\ wednesbury urlreqsonable, being procedurally unfair an'td in breacl^L of section 43 of Constitution and for being in breach of the applicants' Iegitimate expectatlons. (7) An order akin to certiorari quashing the respondents' decisiorts to order tLrc immediate closure of the applicants' forex bureaux. (B) An order akin to certiorari quashing the respondents' decisions ordering the applicants to sell all their forex to Commercial banks under normal banking practices and an order akin to mandamus requiring the commercial banlts to reinstate the applicants' foreign cut^rerlcA balantces to their status quo ante. (9) An order of prohibition restraining the respondents from refusing the applicants' to operate their forex bureaux on tl'te grounds of non renetaal of their licences. Since remedies are a discretionary matter I accordinglg order as follouts: (A) In the ca.se of Trauell"ers Forex Bureau as their application was refused due to an undesirable director a"nd since the same had been remoued that sLtould proceed subject to the applicarfi satisfging other requirements to renew the licence or that the applicant be asked to resubmit their application. (B) As regards Kallia Forex Burea I make a similar order. (C) In the case of CLC Forex Bureau in uieut of the fact that no justifiable reeson u)os giuen for the refusal to reneu) the licence I herebg quash the respondent's decision refusing the renewal of tlrc Iicences and order that upon satisfging the requirements unless they be precisely told tLrc aspects of the test tLrcg failed. (D) And finatly in respect of Cash Point Forex Bureau, Safari Forex Bureau and Cambio Forex Bureau I quash tlrc Respondent's decisiotzs and order that in uiew of the shorl ttme theg u)ere gtuen .€r { the respondent do reconsider their appltcation afresh based on the information wlticLt is alreadg in the resp ondent's possess ion. " My understanding of the tota-lity of the declarations, orders and remedies is that the Court nullified all the decisions made by the appellants and rnrent further to prohibit the appellants from refusing the respondents operate their forex bureaux on the ground that they do not have licences. The Court went further by the remedies at A to D to require the respondents provide appropriate information ald comply with the requirements for application for renewaL of their licences. By the same remedies the Court then instructed the appellants to property consider the respondents' appiications. In saying all this, the Court never said the appellants must in any erzent renew the respondent's licences. The judgment merely requires the appeilants do their statutory duty and assess the respondents' applications in compliance with the 1aw as to procedure and reasoning. The judgment of the court below was made on the Sth March 2010. if . both the respondents and appellants have been minded to $reed the declarations, orders and remedies, they shouid be very close by now to addressing the matter. It is therefore the considered viern of the Court that the solution to this matter lies with the parties and not with the court staying execution of judgment. The application is therefore dismissed. Costs are in the cause. MADE in Chambers this 29th dav of April 2O7O at Blantyre. \\\^*i a, SC, JUSTICE OF APPEAL