S (on application of Martin Ligomeka) v Officer In-Charge of Lilongwe Police Station (Judicial Review Cause 45 of 2022) [2023] MWHCCiv 17 (18 January 2023)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION JUDICIAL REVIEW CAUSE NO. 45 OF 2022 BICPWIEEN TIE STATE (on application of MARTIN LIGOMEKA) CLAIMANT -AND- THE OFFICER IN-CHARGE OF LILONGWE POLICE STATION RESPONDENT CORAM: HON. JUSTICE VIOLET PALIKENA-CHIPAO _ Dr. Mkowani, Counsel for the Claimant . Ms. R. Kumwenda, Court Clerk and Official Interpreter Chipaa, J | RULING ON APPLICATION FOR PERMISSION TO APPLY POR JUDICIAL REVIEW _ I. This is an application for permission to apply for judicial review against {he Respondent’s deciston in refusing to reicase to the Applicant’s consignment of timber, The application was made without notice but the court directed that it be heard with nolice to the Respondent, The Respondent was therefore served with the application but did not attend the hearing of the application and so the a pplication was heard unopposed. 2. The desition giving rise to the application Tor judicial review is the Respondent’ s decision refusing tp release the Claimants consignment of timber when there is no one charged with any offonge before any court of law, Icy 19 rule 20 of the Courts 3, On application for judicial review, the court is prided by Orc PR), Order 19 rule 201) & (High Court) (Civil Procec fure) Rules, 2017 (hercinafter the C (2) of the CPR provides as follows; (1) Judicial review shall cover the review of _ {a} a law, an action or a decision of the Government or a public officer for conformity with the Constitution, or (b) a decision, action or failure to act in relation to the exercise of a public function in order to determine_. {i) its lawfulness; fii) its procedural fairness; iti) its justification of the reasons provided, if-ary, or liv) bad faith, if any, where a right, freedom, interests or legitimate expectation of the Applicant is affected or threatened, (2) A person making an application for judicial review shall have sufficient interest in the matter to which the application relates. 4. Under Order 19 rule 20, a law, an action or decision of the Government or public officer, will be reviewed to determine its conformity with the Constitution. ‘The court can also review a decision, action or failure to act in relation to the exercise of a public function in order to determine its lawfulness, its procedural fairness, tls justification of the reasons; oF bad faith. 5. ‘Phe court is mindful that judicial review is concerned with the decision-making process and not the merits ofa decision of a public body. As in the words of Lord Hailsham L. C. in Chief Constable of Nort Wales Police v Evans [198213 AH ERT41 at 143, “The purpose of the remedy of judicial review is to ensure that the individual is _ given fair treatment by the authority to which he has been subjected to and thal : ; individual judges for that of the authority constituted by law to decide the - | 3 | matters in question.” | | | | | ‘This principle has been applied in local cases including the case of State, E. x pa te Pindani Kamwazo; Ti aditional Authority Dammbe and others [2007] MLR 378 CIC). 6, ‘An applicant seeking fo commence judicial review proceedings i is firstly required to obtain eave to commence judicial review proceedings. The purpose for requiring leave i 18 twofold; 4 ye ie it is no part of that purpose to substitute the opinion of the judiciary or of 7. 9. 10. Il. a) to eliminate frivolous vexatious or hopeless appl ications for judicial review without the need for an inter partes judicial review hearing; and b) fa ensure that an Applicant is only allowed (o proceed to substantive hearing if the Court is satisfied that there is acase fil for further investigation ata full infer partes hearing. (See State, Ex parte Pindani Kanuvoza; Traditional Authority Damobe and others (2007| MLR 378 (IC) ‘The Applicant’s initial application for icave to apply for judicial review was withoul notice but the court directed that it be heard with notice to the Respondent, ‘The direction of the court was not brought to the notice of the Applicant or his lawycr until after set dates passed, Instead of simply filing notice of adjournment for the hearing of the application, the Applicant through Counsel filed another application for permission to commence judicial review, The factual background as presented by Counsel for the Applicant in his sworn statement in support of the application is that the Applicant is a bona fide owner of timber which he sold to another person. The Applicant obtained a cheque payment from the buyer but before he could cash the cheque, the police arrested a Chinese citizen in connection with the purchase of the timber alleging the person who bought from the Applicant is nola genuine buyer, It was further stated that the police confiscated the timber and are detaining the same at Arca 3 police to the prejudice of the Applicant yet no one had been charged with any offence or been brought before a court of law in connection with the timber. It is therefore the Applicant’s argument that the decision to hoid the timber without charging anyone is irrational and unreasonable in the Wednesbury sense. It is therefore submitted that this is a proper case for the court to grant permission to commence judicial review and that the permission should act as a stay of the Respondent’s decision. [tis further prayed that the Respondents be compelled fo refcase the timber to the Applicant and keep a few picces as potential exhibits. At the time of hearing of the application, the court noting that there was an initial application filed on 25" August 2022 and the present application filed on 5" October 2022, asked Counsel as to which documents the application was relying on. Counsel indicated that he was relying on documents filed on both dates. It ig indeed noted from the sworn statement of Dr. Zolomphi Nkowani that the applicant is relying on both documents in his application. In the arguments, in support of the granting of permission to commence judicial review, Counsel cited Order 19 rule 20 (3) of the CPR and section 42(2)(b) of the Constitution as LP 12. 13. 14. {5, well as case of State (on the Application of suneth Sattar ve The Director of Public T aye Prosecutions and the Director of Anti-Corruption Bureau and the Attorney General judicial Review Cause No 68 of 2021. Order 19 rule 20 (3) of the CPR which the Applicant cited, is a provision which em es permission to powers a parly secking lo commence judicial review to apply for the cour commence judicial review proceedings. Section 42 (2)(b) of the Constitution provides for rights of persons detained or arrested for alleged commission of an offence. ‘The section provides as follows; Every person arrested for, or accused of, the alleged comission of an offence shall, in addition to the rights which he or she has as a detained person, have the right~ (b) as soon as it is reasonably possible, but not later than 48 hours afler the arrest, or if the period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day afier such expiry, to be brought before an independent and impartial court of law and to be charged or to be informed of the reason for his or her further detention, failing whieh he or she shall be released, alleged commission of any offence, From the facts as presented by Counsel in the sworn statements in support of the application, it is a Chinese national who was arrested in connection with timber which the Applicant claims to have bought and sald to another person. It is the Respondent’s decision to withhold the timber which the Applicant secks to challenge by way of judicial review as he argues that the decision is unrcasonable as no one was charged or taken before a court of law within 48 hours of atrest. In ag far as the Applicant is not in detention or was not arrested in connection with any offence, section 42 (2)(b) of the Constitution is inapplicable. Be that as it may, even if the issue of the arrest of Mr. Wang ‘lenge was before the court, what section 42(2)(b) of the Constitution provides is that an arrested person must be brought to court within 48 hours of arrest to be charged or informed of reasons For his or her further detention failing which he is to be released. It is on the Claimants own statement in his skelcton arguments that the said Mr. Wang Teng was released on police bail. ‘The release on bail of the Mr. Wang could actually be a compliance with section 42(2)(b) of the Constitution. The citing of section 42(2)(b) of the Constitution therefore as a legal basis for the application for judicial review is misplaced, ‘The Applicant before the court is not in detention neither was, he arrested or accused of L6, — ~ 18, 19. 20. The Applice mnt also cited the case of State (on the Application of Zuneth Sattar v. The ; rean and the Director of Public Prosecutions and the Director of Anti-Corruption Bu Attorney General Judicial Review Cause No 68 8 of 2021 as authority for the proposition that permission to commence judicial review will be granted 1! the court is satisfied that there is an arguable case for the relief claimed by the Applicant. ‘Lhe question al this stage therefore ig whether or not the Applicant has raised an arguable case for the granting ol permission to commence judicial review, Phe application filed by Messers Zolomphi & Co contains very lite information as to the Applicant’s ownership of the timber. It simply states that the Applicant is a bora fide owner of the timber and he sold the same, ‘There are no details as to when and how he acquired the same and to whom he sold the same, There are no details as to when the Chinese was atrested and whether or not he is still in custody. There is no suggestion that the Applicaat tried to approach the Police to ask for rctease of the timber as he claims if ts his. There is no documentation attached to his application as filed by Messers Zolomphi & Co. to support his claim that he bought the timber and no information as to where he bought the timber from, This is not the kind of evidence on which it can be said that the Appitcant has raised an arguable case worthy pursuing at a substantive hearing for judicial review, For morc information regarding the timber and (he Applicant, one may have to look to the documents filed by Messers Whyte & Cross which were adopted in the sworn statement filed by Messcrs Zolomphi & Co. These documents were also adopted at the tune of hearing of the application, Tt must be noted that the initial application for permission to commence judicial review was filed by Messcrs Whyte & Cross and the court directed that the application be heard with notice to the Respondent. Messers White & Cross filed an application with notice in compliance with the court’s direction but the hearing of the application was rescheduled duc to absence of the court and on subsequent dates hearing failed to fake place due to failure of the registry to notify parties of the dates set by the court. Messers Zolomphi & Co filed a notice of appointment of legal practitioner to act alongside Messers Whyte & Cross. At the hearing of the application, Messers Whyte & Cross did not appear and there is no indication that they were served with the application, Although Counsel Dr. Nkowani indicated at the time of hearing the application that he would rely on documents filed by him and those filed by Mcssers Whyte & Cross, there was no sugecstion that he was acting on behalf of Messers Whyte & Cross. ‘The court has serious problems in * : sane ‘CS Th relying on documents that were nol presented by Counsel who filed the sare more so view of the observations that I will shortly refer to with repard to the documcnts, | 21. In support of the application for permission fo commence judicial review, the Applicant through Messers Whyte & Cross filed a statement of facts and sworn statement. According to the statement of facts, presented by the Applicant, one Mr. Limbani [atala bought one M’bawa tree from the Department of Forestry alter trees fell due to oyclone Ana in January 9022. Tixhibit MIL} ig an approved application form for purchase of one M’bawa tree cated 26" January, 2022. It is in the name of Limbani Halala. Exhibit ML.2 is general receipt being payment of K30, 000 for one M’bawa tree by Limbani Halala. 22, The Applicant further stated that Mr. Limbani Halala obtained a conveyance certificate giving him authority fo move timber cut from the said tree within the borders of Malawi. ‘The conveyanec/transfer certificate was exhibited as ML3. 23. Uixhibit ML3, the conveyance/transfer certificate is dated 25'" July 2022. Lt is issued in respect of 180 picces of timber (M’ bawa). The court observes that Exhibit ML1 ts a receipt for purchase of one M’bawa tree purchased on 26" January 2022 and Exhibit MI3 is a conveyance certificate. for 180 pieces of timber dated 25" July 2022. In the absence of evidence linking the two documents, onc wonders whether timber in MI.3 ts the product of the one trec in MLI especially considcring the gap of seven months from the time the tree is said to have becn bought and the time the timber is said to have been cut from the tree. 24. Again, it is considered that in support of the application, the Applicant alse attached Exhibit ML4 which is a letter written by the Malawi Police Service addressed to ‘whom it may. concern’ in which the police indicated that they recovered 204 pieces of timber valued at 2, 400, 000. It is noted that the Applicant ts praying for the release of 200 picecs of timber and less the few that may be kept as potential exhibit. The quantily of timber in ML3 does not tarry with the quantity that is being referred fo in ML4 by the Police. The reference by the applicant to the relcase of 200 pieces of timber suggests to the court that the quantity of timber impounded by the police is around 200. This being the case, onc wonders whether ML3 whose quantity is 180 can be used as evidence of the authority to convey over 200 picecs of timber. ‘The figures do not add up and these raises doubt as to whether the documents attached to (he application can support the applicant’s contention ay owner of the timber. 25. In addition, Exhibit ML4 sugecsts that the timber was impounded as part of investigations following a report of an offence of obtaining by false pretences by the Applicant, Of course, the Applicant stated that it is not truc that he lodged a complaint to the Respondent but that the respondent simply issued the letter in Exhibit ML4. It is interesting, Urat from: the i i approe - Pofice in which case the police would not nave Applicant’s version he did not approach the Police in which case the t information as to when the timber was obtained from ‘Thyolo and transported to Lilongwe. In the letter however, the Police states that the offence of obtaining by false pretences occurred on 26"" huly 2022 between ‘Thyolo and Lilongwe. Although the dates differ by one day, one cannot expect the police to have that information unless they were informed. If the Applicant is not the oue who sold the Chinese national the timber, how would the police connect the Applicant to the timber? . 26. It appears in my view that Claimant did not fully disclose the facts of his possession of the timber as well as the facts of how the police came to know about the timber and impounded the same. . 27, It will be noted that in the application filed by Messer Whyte & Cross, the Applicant stated in the statement of facts that after he bought the said timber from Mr. Limbani Halala and obtained all the named three documents, he then decided to sell the timber in Lilongwe to “a Mr. ....... who gave him a cheque in the sum of... ” The applicant teft this statement incomplete yet the wording suggests that he intended to mention the name of the buyer and the selling price. No explanation was given at the lime of hearing of the application whether the absence of the details was deliberate or he Forgot to complete the statement, 28, The Applicant went further to say that he deposited the cheque ‘in a friend’s account. As proof of the deposit of the cheque, the Applicant referred to ixhibit MJ.3 as deposit slip evidencing depositing of the cheque. ML3 however is a conveyance certificate for the transfer of the timber within Malawi and not a cheque deposit slip. The absence of the deposit slip has not been cxplained in the statement, At the time of hearing of the application, the absence was not explained and yet the documents were adopted as they are. 29, The Applicant went further to say that before the cheque cleared, a police officer by the "name Detective Sutani from Arca 3 Police Station called the Applicant andl told him that that he had been duped of his timber by the person who issued the cheque and that the timber was found with a Chinese national Wang ‘l’cng who bought the timber from the unscruptious person, ‘This version regarding the cheque is different from what is stated in the sworn statement of Dr. Nkowani which is to the effect that before the Applicant cashed the cheque, the Police intercepted the timber, ‘That is why Counsel argued that the Applicant could not cash the cheque and could not he take back the timber as it was in the hands of the police, “| « Pasupiful uaag anny unnyja Kayy Yoqfdd SuOpadéf PUD Sfysit § puDoyddy aif} SuLMMIaS fo asodind ayy sof Jap.to aayourfin we Bulb bau pyOM Apauias aduoaffe joy) fi Apauias ‘apiudoudda pup ‘adnoaffa up Suis wodf pnor) Sty) ols outa Jo;pun Jou pynoys' ‘adogn patio (s)op pup (or (sg) fp suonoas Ly SuUOISTAOd ayy unjnarind ui ‘wawjpopy fo aygnday ayy fo uornpsuon ay}, (SJOHPOI ULIOVUY SuIp.esor PIS PROT YS] oy] WY st YT yey] Buysosns yuowuspnf oy) wos Bumoypoy oy) poyonb ULLUTR]L) Off, ‘SFOHOI LUWOTUT Jo yUwAT JO onss} oY] UO APOYING SB paylo OsTE SAL 81 E WTA 12002-1002] -Aqjouy pue dyquiossy jeuoneR Jo coyuodg a uurfuesurdyal jo osvo ouy, “€¢ ‘yysnos Futoq syoryoa WUMOJUT Us. Op OF SUNOU SEE IL sv UOTLIOND pozld styy JO ooUBADPOA OY] OF SB SSO] BIL LUE | 26 | ., Etystojja1p BADY Jysitu ant ‘aaDd SH Ui ‘pub KopdaoUlap OU ag ffi adayy astAtiayjo damad fo uOUNSOC U4 asou] dg mpj Aq papns ag jsnut C4UuNOd S)Y f, AD] Alf] AAOGD ag OF fou uosiad dada suiolita UOUAHISUOT AY} }IY} daQuiatiad SCPMJD ISH AAA ‘adLaSgO . fficd Adify Sa] YOHYM asooyo pun yard O} PamMoppy ag JOU PINOYN adgMaNa auf], SuUIMOFoOT oy) BaToNh 9HNZ JO BET “ON OSNUD PAL) SEAL py] Orpeyy op ap.cwd xa BOUT] PUY LALBTL IAL JO UIP ISIA | LT “A IPVIS IL JO SOSVd Pod PeULIL]D OY} “orl vata) oy Jo ytoddns uy ‘podaeys oq 07 JNo9 OY] o1OfFoq WYPNoAg Udaq JOU sey yoodsns oy} UOYM JOqWA SuIppoyyM UOIsIaOp s JUOpuddsoyY ay} Jo Avis jo UO} OU] UL JOUOI LUTIOTT UB TTY ]RUT 0} LANOS Ot] POYS! OS]B PUVLUTLTD OWL, “LE ‘pOlUlop St SABO] 1oy coywordde ayy, ‘BuLvoy movaos peroipnl oarunysqns Bye daysmd Ayploar oseo B ST O94) ‘paooal UO S}ORT OY} UO JBY] POLSHS JOU st |MOs OL, “SuOHsoNb jo JOY B OALO] “S}HOLURSOp JO S$JoS Gan] at] UE TOSUNOS sry pue jUBoTddy ayy Aq poyuososd syoRy OY) SEH SV juBordde OY] JOU PUB LOqUAy OU] JO osRa]os OY] FOF RINGS OY} OAOTE O} Buppoos useq savy pynoys OUM UOSIod JU} ST J] VoANG posoposipun oyy yg JoqLUy] oY] UE JSosOVUTL Pee] OYM wy Jodo] OU SBA }} ‘Oquu oy) popunoduar oo1fod oy adeys WU] Ww J} ‘ood aseyoind oly poatooo.l Puy JOGuuT] of) PasRojas ag ovat oUF Te FoAng OY) 0} passed pay ysit oy) ‘spood Jo jJas fo SUMO} Uf suosno siy Aq Aued pany e PBosp vaTG YM sea IT 1Ng Jo]JOs o4F UTEAK TOU Seas AVOUT OMI SuBaLU SHULL, “PUT SIL] JO FUNOSOU SI) OPT paysodap oy YoryM yuo ded onboyo & pounnge Kpeaae pey puy wosiod soqoue oF JoqLay OF pjos Apragye pry oy “pouoAsoyuy oorjod out QUIN otf) Je Eo1109 9g 0} Papp SHOLUNOOP [EH oY] UH MOTSIOA § yuBoHddy oy IRI OM IT O£ ‘ 1 g ; > + 2 € 1 gS. & 34, [tis important to observe that the above quote is a continuation of observations thal th court was making in that case regarding section 10 of the Civil Procedure (suils by or against government Or public officer 8) Act, This is what the Court had to say; Fer now, let me go back fo section 10 of Cap. 6:01 and make ny obser vations regarding this section and the question that if raises, It is the judgment of this Court that this provision raises the issue regarding the power, or the duty, of the court to grant an effective remedy against the state for violations oy the purported violations of the rights or freedoms, or both, of an individual which are protected by the Constitution, where such rights or freedoms are infringed or threatened. In this regard, if is pertinent fo visit some. consiituional provisions sa as to understand why f inake this observation. Tt will be seen that the above-mentioned sections demonstrate that if section 10 of the Civil Procedure (suits by or against government or public officers) Aet is taken fterally, ther the courts would be rendered impotent in se far as what the Constitution of the Republic of Malawi enjoins them to do where lhere is a complaint that rights ov freedoms of an individual have been infringed of threatened, Indeed, Cap. 6:01 of the Laws of Malev which was promulgated before the current Constitution of the Republic of Malawi, in particular the provisions in sections 413), 46(2) and 46@) cited above, should not and/or cannot stop this Court from giving au effective, and appropriate, remedy if that effective remedy would mean making an injunctive order for the purpose of securing the Applicant’s rights and freedoms which they claim have been infringed. If the effective remedy which is found necessary and appropriate is an injunction order, then surely this Court will so order, notwithstanding the provisions of section 10 of the Civil Procedure (suits by or against government or public officers) Act. That would be the cuse if it iy assumed that this Act is intended to cover judicial review proceedings as well. But as will be recalled, this Court has formed the opinion, and has found as a Jact, that judicial review proceedings are not legal suits or claims, and are therefore not caught by the provisions of Cap. 6:01 of the Laws of Malawi {iimphasis added]. 35, The emphasis shows the part which the Applicant quoted. Whilst the judgrnent makes reference fo the granting of reliefs like injunctive reliefs, the paragraph referred to is quoted out of context and the ratio it advances docs nol apply to the present case. Be that as it may, it is noted that the interim reliefs were sought as ancillary to the granting of permission for judicial review, the permission having not been granted, the prayer for interim reliefs has no legs to stand on. Made in Chambers on 18 day of January, 2023 at Lilongwe. e bape Y. Palikena-Chipao JUDGE