State v Director of Anti Corruption Bureau Exparte Tayub and 4 Others [2017] MWSC 24 (19 July 2017)

* a el (i AN vei ‘igo Pagag MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY JUDICIAL REVIEW CAUSE NO 29 0F 2017 BETWEEN: THE STATE AND DIRECTOR OF ANTI-CORRUPTION BUREAU......... RESPONDENT EX PARTE SALIM TAYUB...........ccccccccccccccccccscccsccccescescesseees 187 APPLICANT RASHID TAYUB, os sicsssie ss 04 00 oases 06 see nine te nernens nen enone 2NP APPLICANT HAMZA TAYUB........... esseueaeseusseeseataveeatsveseaceee 3RP APPLICANT PARVEZ TAY UB oe os xis xe ses cos 0 0:0 00 naan 00 0 60 ou 0 oc eae wn 8 4™4 APPLICANT TRANSGLOBE PRODUCE EXPORTS LIMITED........ 57H APPLICANT CORAM: THE HON JUSTICE H. S. B. POTANI Mr. Gondwe, Banda and Theu, Counsel for the Applicants Mr. Khunga, Counsel for the Respondent Mr. Mathanda, Court Clerk RULING Through an ex parte application, the applicants knocked on the doors of the court seeking leave to institute judicial review proceedings for purposes of challenging some decisions by the respondent to set in motion investigative and prosecutorial steps and processes targeting the applicants. Bearing in mind that the respondent has the statutory mandate and powers to investigate, arrest and indeed prosecute those suspected to be involved in corrupt practices, the court deemed it fair and necessary to hear the respondent through an inter partes hearing and so it was accordingly ordered and specific directions were given regarding the filing and service of the processes to facilitate the inter partes hearing. The court now proceeds to make its determination on the hearing that ensued. The facts in aid of the applicants’ plea are contained in the Form 86A filed herein which facts are verified by the affidavit of Rashid Tayub, the 2"applicant. On the part of the respondent, there is the affidavit of Steve Goru, Senior Investigations Officer, at the Anti- Corruption Bureau [ACB]. The 1°, 2"4, 3 and 4" applicants are directors of the 5" applicant, a limited liability company, with a number of different business ventures and interests while the respondent is a public officer at the helm of the the Anti-Corruption Bureau [ACB]a public body created by section 4 of the Corrupt Practices Act [CPA] whose mandate as provided for in section 10 is, among others, to take necessary measures for the prevention of corruption in public bodies and private bodies, receive any complaints, report or other information of any alleged or suspected corrupt practice or offence under the CPA, investigate any complaint, report or other information received , investigate any alleged or suspected offence under the CPA, _ investigate any offence under any written law disclosed in the course of investigating any alleged or suspected corrupt practice or offence under the CPA and subject to the directions of the Director of Public Prosecutions, prosecute any offence under this CPA. It is common case that these proceedings were triggered by investigative processes the respondent set in motion on allegations that the Chief Executive Officer [CEO] for the Agricultural Development and Marketing Corporation [ADMARC] improperly procured 100,000 metric tons of maize worth close to MK26 billion from Zambia Co-operatives Federation [ZCF] through a Zambian private company known as Kaloswe Commuter and Courier Company [KCCC]. It is the assertion of the respondent that in the course of the investigations, it came to light that the 5% applicant through the 1‘, 2", 3 and 4" applicants was involved in the maize procurement process both in Malawi and Zambia. In the wake of this revelation, the respondent on February 20, 2017, obtained Warrant of Access and Search against the 2"4, 3" and 4" applicants. The thrust of the applicants’ basis for seeking leave to challenge the respondent’s decision to investigate them is that on the facts in totality, there is no reasonable suspicion of commission of an offence under the Corrupt Practices Act by applicants. The applicants have endeavoured to give an account of their involvement in and/or connection with the maize procurement in a bid to show that they never dealt with ADMARC or the Malawi Government as to be reasonably suspected of having played any role in the alleged improper procurement of maize by the CEO for ADMARC. In brief, that account is that as part of their business pursuits, the applicants bought some maize in Zambia with a view to export it to Malawi but as it turned out, they were unable to do so as they failed to secure the requisite export licence from the relevant Zambian authorities hence the maize got stuck in Zambia. In the course of time, the maize was bought by Zambia Co-operatives Federation [ZCF] who had a contract with ADMARC to supply 100,000 metric tons of maize but had failed to source maize from Zambian traders and suppliers. It is thus contended by the applicants that the allegation forming the basis of respondent’s decision complained of herein is trivial, frivolous, vexatious, in bad faith, improper and futile within the purview of section 10[2] of the CPA as such the respondent ought not to have instituted any investigation or to proceed further with any investigation. The applicants further contend that the continued investigations on them and the failure to conclude the same is prejudicial to their constitutional right to economic activity and to this end, the applicants have deposed that they have failed to execute certain business transactions with third parties including banks who have expressed unwillingness to deal with them on account of the ongoing investigations. The respondent opposes the granting of leave to the move for judicial review to the applicants. There are three grounds that stand out on which the opposition is founded. These grounds are firstly that the applicants have inexplicably delayed in making the application for leave it having been made outside the 3 months prescribed under Order 53 rule 4 of the Rules of the Supreme Court, secondly that the applicants do not have an arguable claim as the respondent acted within his statutory powers and without any bad faith or unreasonableness and thirdly that contrary to the applicants assertions, the respondent has not made any decision to prosecute the applicants. On the first ground it has been argued for the respondent that the decision to conduct the investigation complained of was made on January 3, 2017, but the applicants only came to court on May 22, 2017, outside the 3 months period stipulated in Order 53 rule 4 without explaining the delay and/or seeking extension of time from the court. With regard to the second ground of opposition, which is that the applicants do not have an arguable case as the respondent acted within its statutory powers and without bad faith or unreasonableness, the respondent places reliance on section 11 [1][a]of the CPA which is as follows: (1) For the performance of the functions of the Bureau under this Act, the Director may— (a) authorise in writing any officer of the Bureau to conduct an inquiry or investigation into alleged or suspected offences under this Act; It is the case for the respondent that having received a complaint against the CEO for ADMARC on the alleged improper maize procurement, the preliminary investigations the respondent conducted showed that the applicants were involved in the maize procurement process one way or the other. With regard to the third ground of opposition, the respondent’s position is that no decision has been made yet to prosecute the applicants as such the complaint is premature. As the court embarks on the determination of the application under consideration, it must exercise caution so as not to venture into dealing with matters meant to be determined at a substantive judicial review. As counsel for both parties do agree in their respective submissions, the law is well settled that the purpose of the requirement for leave to move for judicial review is to eliminate at an early stage any applications which are either frivolous, vexatious or hopeless so as to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further consideration. It has been said that the requirement for leave is designed to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived. See R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] A. C. 617. In dealing with an application for leave the approach the court has to take is that if on the material then available the court thinks, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant then leave should be granted. Thus in R. v. Secretary of State for the Home Department, ex parte. Rukshanda Begum [1990] C. O. D. 107, it was held that the test to be applied in deciding whether to grant leave to move for judicial review is whether the judge is satisfied that there is a case fit for further investigation at a full inter partes hearing of a substantive application for judicial review. This, of necessity would call upon the court to consider the application in the light of the grounds recognised by the law for granting judicial review. There are broadly four such grounds, that is, want of jurisdiction also known as the doctrine of ultra vires, error of the law on the face of the record, failure to comply with rules of natural justice, and unreasonableness also known as the wednesbury principle. As pointed out earlier, when the applicants initially sought leave ex parte, the court having examined the case brought forth was not very certain as to whether or not there is an arguable case, hence the decision to invite respondent to an inter partes hearing for him make representations on the question whether or not leave should be granted. Again as indicated earlier, the respondent opposes to the granting of leave essentially on three grounds namely that the applicants delayed in making the application, that the respondents acted within his statutory mandate, without any bad faith or unreasonableness and that contrary to the assertions by the applicants, the respondent has not made any decision to prosecute them. As the three grounds just mentioned stand, the logical starting point would be to deal with the question of delay in making the application. Order 53 rule 4 of the Rules of the Supreme Court stipulates as follows: An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. The import of this stipulation, as espoused in Practice Note 53/14/58, is that an application for leave to move for judicial review must be made promptly, that is, as soon as practicable or as soon as the circumstances of the case will allow, and in any event within three months from the date when grounds for the application first arose and time starts to run from the date when the grounds for the application first arose. The learned commentators of the Rules of the Supreme go further to expound that, it is not correct, as is sometimes thought, that an applicant for judicial review is always allowed three months in which to make his application for leave, and provided that he lodges it within that period leave cannot be refused on the grounds of delay. The primary requirement as laid down by the rule 4 is that the application must be made promptly, followed by the secondary provision that in any event within three months so much so that there can be cases where, even though the application for leave is made within the three-month period, leave might be refused because, on the facts, the application had not been made promptly. The application for leave in this case was filed with the court on May 22, 2017. It is the respondent’s assertion that the decision to investigate the applicants was made on January 3, 2017, and by the time they came to court with the application for leave, 7 it was way outside the three months time limit stipulated under Order 53 rule 4. The applicants’ position is that the decision to investigate them was made much later on February 2; 2017, when the Access and Search Warrants were issued against the applicants. They contend that the last day of the three allowable months being May 20 which was a Saturday, they were within time having come to court on the Monday immediately following. This aspect can easily be disposed of. To back up the position of the respondent, it has been contended that as admitted by the applicants themselves, they were first interviewed by the respondent in January 2017. While this could be true, the court would give the applicants the benefit of the doubt and tend to agree with the contention by the applicants that at that point, strictly speaking, they could not have known that they themselves were being investigated. Most likely, they were under the impression that they were being interviewed as potential witnesses. It was only when the Access and Search Warrants were issued against them that they became aware that they were also targeted in the investigations. And the warrants having been issued on February 20, the time limit to apply for leave was to expire on May 20 and it not being disputed that it was a Saturday which is not a normal court day, it is understandable that the applicants came to court on the immediate following Monday, May 22. In the end, the court would not shut out the applicants on account of delay in coming to court to seek leave. The court would wish to state that in considering the applicants’ application for leave, it is quite aware of the decision of the Honourable Justice Kenyatta Nyirenda in Judicial Review Cause No. 3 of 2017 The State and The Director of the Anti- Corruption Bureau Ex Parte Globe Electronics Limited and Mohamed Abdul Gaffar Kassa [unreported]. In that case, the court granted the applicants leave to move for judicial review to challenge the decision of the respondent to prosecute the 2" applicant, in his capacity as managing director of the 1** applicant. The respondent applied to have the leave discharged but on an inter partes hearing, the court sustained the leave, proceeded with the substantive judicial review and granted the reliefs sought by the applicants. As would be noted, the respondent in that case was the same one as in the present case. The facts of that case also bear a close resemblance to those in this case. In a nutshell, the facts were that the respondent had instituted investigations and was on the verge of proceeding to prosecute the applicants on corruption related charges in relation to supply, by the 2™4 applicant, of some radio equipment in vehicles which the Malawi Defence Force [MDF] bought from Toyata Malawi. The allegation against the applicants was essentially that they had taken part in corruptly obtaining money from MDF. The court in granting leave and subsequently the substantive reliefs sought by the applicants seems to have mostly been moved or persuaded by the fact that the facts in totality showed that there were no dealings between the applicants and MDF and that the applicants solely dealt with Toyata Malawi who had a contract with MDF. Just like in this case, the applicants contend that they had no dealings with ADMARC or the Malawi Government who are alleged to have improperly procured some maize from Zambia which triggered the investigations on the applicants which they are challenging. In the determination of the case at hand, the court would wish to state with a lot of emphasis that conducting investigative and prosecutorial processes lies in the discretion of the investigative and prosecutorial authority which in this case is the respondent as empowered by the CPA. Such being the case, the court should only stop the authority in its tracks, by way of judicial review, if there is something latently and glaringly amiss with the processes undertaken. This was duly acknowledged by the court in the ex parte Globe Electronics Limited and Mohamed Abdul Gaffar Kassam case alluded to. The court had this to say in that regard: This case raises very novel issues. The said issues are not subject of daily or routine litigation in our courts. With the exception of the cases of The State v. Director of Anti-Corruption Bureau Ex parte Frank Farouk Mbeta wherein my sister Judge , Ntaba J., gave leave to move for judicial review of prosecutorial powers and The State v. Director of Anti-Corruption Bureau ex parte Shiraz Fereirra; Judicial Review Case No. 82 of 2015 and The State v. Officer in Charge of Blantyre Police Station: exparte Mabvuto Khoza wherein my brother Judge, Tembo J., did likewise, litigation of his nature rarely comes before our Courts. I presume the reason is that a prosecutor of necessity must be left alone to flex his or her muscles against criminal activities and their perpetrators. Unless something very untoward happens in the way the prosecutor has conducted his duties, leaving him or her alone seems a sacrosanct ethos to be respected at all costs and in all weather by the Courts and the litigating public. It is from this view point that I have been very cautious in considering the issues in this case. The case pulls on two opposing ends of the criminal justice system vis-a- vis prosecutorial discretion. There is no dispute in thé present case that the respondent has powers to investigate and even prosecute the applicants. The applicants, however, contend that the respondent in this case has acted unreasonably and in bad faith in that on the facts in totality, there is no reasonable suspicion to warrant investigating them in relation to the improper procurement of maize from Zambia by the ADMARC CEO. It is their contention that apart from being unwarranted, the investigations have taken very long with the result that they have adversely affected their business pursuits thereby infringing on their constitutional right to economic activity. The question the court considers critical in the determination of the matter is whether or not the respondent has acted unreasonably or in bad faith as justify 10 the court’s intervention through the judicial review machinery. That said, it should be said, at this juncture, that this court fully respects the decision of Kenyatta Nyirenda J in the case of ex parte Globe Electronics Limited and Mohamed Abdul Gaffar Kassam but being a decision of a court of equal jurisdiction, it is not binding. It can only be persuasive. The court entirely agrees on the need for caution when faced with a case of this nature considering that the decision to investigate and prosecute those suspected to be involved in corrupt practices is the preserve of the respondent. It is the considered estimation of this court that it would be against public policy and indeed public interest to have those suspected to indulge in corrupt practices brought to book if the court unnecessarily intervenes in the investigative and prosecutorial processes under the guise of judicial review. The court would also hasten to say that the law through the criminal justice system provides a forum the respondent’s investigations and decision to prosecute would be tested and if found wanting, the applicants would be acquitted. With that in mind, as the court considers the question whether the respondent has acted unreasonably and in bad but while exercising great caution not step into the arena of the criminal justice system, the court wishes to note that on the facts in totality, the applicants while they did not deal with ADMARC directly in the maize procurement, they got involved with the same maize at some stage. That, in the considered view of the court, creates a nexus between the improper procurement of the maize and the applicants justifying the investigations on the applicants instituted by the respondent. In the circumstances, the respondent cannot be sad to have acted unreasonably or in bad faith. The court would send a very bad signal if it were to stop the respondent from carrying investigations in order to unearth the truth of the matter. Surely if those investigations will reveal no criminal case worth pursing against the aa applicants, there will be no further pursuit of them. If there would be some case to be pursued, then it will be tested in a criminal trial where the burden of proof, a heavy one for that matter, would lie on the respondent. The applicants will have the benefit of the presumption of innocence and the opportunity to put forward their defence, if need be. In the end result, the court’s position is that the respondent in investigating the applicants is acting within the confines of the law with no bad faith or unreasonableness. There has been a complaint by the applicants on the delay in concluding the investigations which they say has had a negative effect on their business pursuits thereby infringing their constitutional right to economic activity The reason for the delay has been amply and convincingly explained by the respondent being that the process involves analyzing the information in the gadgets seised from the applicants which necessitated engaging foreign forensic experts. With regard to the complaint on the alleged decision to prosecute the applicants, it can easily be disposed of as the facts tend to show that such a decision has not yet been made as investigations are still under way. On this point, the case is distinguishable from the ex parte Globe Electronics Limited and Mohamed Abdul Gaffar Kassam in which the facts seemed to show that investigations were largely concluded and a decision to prosecute had been made. This is evident from the judgement in which the court discussed a lot on some of the investigation findings. In short, the applicants in this case have jumped the gun in so far as the complaint on the alleged decision to prosecute them is a concerned. In the light of the foregoing, leave to move for judicial review as sought by the applicants is denied with costs to the respondent. 12 Made this day of July 19, 2017, at Blantyre in the Republic of Malawi S. B POTANI JUDGE 13