Anti Corruption Bureau v Chinkhadze and Another (MSCA Civil Appeal 1A of 2003) [2003] MWSC 7 (20 August 2003)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE (Being High Court Lilongwe District Registry Se Civil Cause No. 19 of 2002) BETWEEN: THE ANTI-CORRUPTION BUREAU..............cceceeeeeeees APPELLANT and AMOS CHINKHADZE..............ccececeee eee eeeeeeeenes 18ST RESPONDENT -and - OTE FAI TTOIMA oc sacs sins snus smna nas aass ama samanmen ana semanas 2ND RESPONDENT BEFORE: THE HONOURABLE THE CHIEF JUSTICE THE HONOURABLE JUSTICE MSOSA, JA THE HONOURABLE JUSTICE MTAMBO, JA Kanyenda, Counsel for the Appellant Nankhuni, Counsel for the Respondents Mchacha, Official Interpreter Daudi (Mrs), Official Recorder JUDGMENT Unyolo, CJ This is an appeal from the decision of Kumange, J, in which the learned Judge reversed two Restriction Notices the appellant had issued against the respondents pursuant to section 23(1) of the Corrupt Practices Act. . The pertinent facts are these. The two respondents are Registered Professional Land Economy Surveyors, Valuers, Estate Agents and Auctioneers. They are in real property business, separately, in the City of Lilongwe. In about June 2000, the Lilongwe City Assembly invited tenders for private valuation of real property within the City for purposes of collecting city rates. The two respondents, among other property valuers, responded to the invitation. They were successful and duly signed formal contracts with the City Assembly in this regard. They did the work to the full satisfaction of the City Assembly. It was agreed that payment would be made in instalments. They received only one payment, when suddenly, the Anti-Corruption Bureau, the appellant that is, issued and served Notices under section 23(1) above-mentioned, restricting the Lilongwe City Assembly from paying the remaining sums of money to the respondents. There is a balance of K9.2 million still to be paid to the 1st respondent and a balance of K5.8 million to be paid to the 224 respondent. Under section 23(1), the Director of the Anti-Corruption Bureau has power to issue a Notice to any person, who is the subject of an investigation in respect of an offence under the Corrupt Practices Act or against whom a prosecution of such offence has been instituted, directing that such person shall not dispose of or otherwise deal with any property specified in the Notice without the consent of the Director. In the present case, the Restriction Notices were issued on the basis that the anti-Corruption Bureau was carrying out an investigation into the manner the two contracts were awarded to the respondents by the Lilongwe City Assembly. However, no prosecution has been instituted against the respondents or anybody to-date. Against this background, the respondents filed a Notice of Motion in the Court below asking the Court to reverse or vary the Restriction Notices. They complained in their supporting affidavits that the Restriction Notices could not be justified as the valuation contracts were awarded to them purely on merit, based on the Lilongwe City Assembly’s transparent selection criteria. They further complained that the appellant’s decision was unfair and unjust, since they carried out the work under the contracts to the full satisfaction of the Lilongwe City Assembly and that the said City Assembly was ready and willing to pay the monies due on the said contracts. The respondents also pointed out that indeed the Lilongwe City Assembly had started collecting the new city rates recommended under the valuation they carried out. After hearing Counsel in argument, the learned Judge in the Court below reversed the Restriction Notices as prayed for by the respondents and condemned the appellant in costs to be shared equally with the Lilongwe City Assembly. It is against this decision that the appellant appeals to this Court. Several grounds of appeal were filed. The first point taken on behalf of the appellant is that the learned Judge erred in allowing the matter to proceed against the appellant, namely, the Anti-Corruption Bureau, because the said Bureau has no legal personality or capacity so as to be sued. On this aspect, Counsel for the appellant relies upon section 4 of the Corrupt Practices Act, which provides: “4-(1) There is hereby established a body to be known as the Anti-Corruption Bureau which shall consist of the Director, the Deputy Director and such officers of the Bureau, as may be appointed under section 9. (2) The Bureau shall be a Government Department and the finances of the Bureau shall be charged to the Consolidated Fund.” Counsel for the respondents conceded that the Anti- Corruption Bureau is indeed not a legal or juristic person with capacity to sue or be sued. Counsel however contended that in the strict sense, the respondents merely followed the provisions of section 23(5) and 23(6) of the Corrupt Practices Act by applying for the reversal of the Restriction Notices issued against them by the Anti-Corruption Bureau. Counsel further contended that in any case, the Attorney General was also made a party to the proceedings in terms of section 3 of the Civil Procedure (Suits by or against the Government or Public Officers) Act and that the objection raised by the appellant is therefore spurious. Counsel submitted that on the total facts, the learned Judge in the Court below could not be faulted for allowing the case to proceed against the appellant as well. We have considered the arguments on both sides carefully. Section 4 of the Corrupt Practices Act which we have reproduced above is clear. There is no doubt that the Anti-Corruption Bureau as presently established under the section is not a juristic or legal person. It has no capacity to sue or be sued. It is common knowledge that where the Legislature wants to confer such legal capacity, it expressly so provides. Broadly, there were two alternatives available to the respondents in the present case. They could have instituted the proceedings simply against the Attorney General, representing the Bureau as a Government Department in terms of section 3 of the Civil Procedure (Suits by or against the Government or Public Officers) Act, or they could have proceeded against the Bureau’s Director or the Deputy Director in terms of section 4 of the said Civil Procedure (Suits by or against Government or Public Officers) Act. Kapanda, J, in Apex Car Sales Ltd v Anti-Corruption Bureau, Civil Cause No. 3479 of 2000 (unreported), correctly elucidated the procedure in cases of this type in the following words: “...if a person is aggrieved by the actions of the Director of the Anti-Corruption Bureau and he decided to commence proceedings in respect of any act done by the said Director in pursuance or execution of the Corrupt Practices Act he/she may elect to proceed against the Government through the Attorney General. Alternatively such a person may commence proceedings against the Director of the Anti-Corruption Bureau for acts done by him in pursuance or execution of the said Corrupt Practices Act. Such proceedings may be commenced against the Director of the Anti-Corruption Bureau because he is a Public Officer. Further, the institution of proceedings in respect of any act done by the Anti-Corruption Bureau in pursuance or execution of the Corrupt Practices Act may be against the Attorney General because the said acts of the Anti-Corruption Bureau, a Government Department which has no legal capacity to sue and be sued are deemed to be the acts of Government. An aggrieved person may elect to proceed against the Attorney General because suits against Government, unless otherwise expressly provided by any Act of Parliament, must be instituted against the Attorney General.” Further, the fact that the Attorney General was also made a party to the proceedings does not assist the respondents in so far as the bringing in of the Anti-Corruption Bureau, as a party to the proceedings, is concerned. As we have seen, the Bureau on its own has no legal capacity to be sued or to sue. We have belaboured the point as to whom the respondents should have brought the proceedings against. It may be helpful to repeat on this aspect of the case what was said by this Court per Tambala, JA in J Z U Tembo and Kate Kainja v The Speaker of the National Assembly, MSCA Civil Appeal No. 1 of 2003 (unreported): “A decision regarding which party to sue is an important decision which is made by a party or his Counsel after careful consideration of the facts of the case. The task of which party to sue must be performed by the litigant and not the court. It is no business of the court to assist a litigant in choosing for him the correct party to sue. Where a litigant is represented by Counsel it would not be proper for the court to assist Counsel in making a decision regarding the correct party to sue. To do otherwise would undermine the essence and spirit of our adversarial system of litigation.” For the foregoing reasons, we agree that on the available facts, the Court below erred in allowing the case to proceed against the appellant. We were initially inclined to stop here since the question whether or not the appellant had legal capacity to be sued was the main issue in this appeal. However, two other issues were raised and hotly argued by Counsel and we think it is only fair that we discuss these as well. First, the appellant contended that the Court below erred in allowing this matter to proceed by Notice of Motion and not by Originating Summons pursuant to O.5, rule 3 as read with O.28 of the Rules of the Supreme Court. On this point the appellant relied on the said O.5, rule 3, which provides that proceedings by which an application is to be made to the High Court or a Judge thereof under any Act must be taken by Originating Summons. It was consequently argued that since the respondents commenced their proceedings under the Corrupt Practices Act, they should therefore have commenced the proceedings by Originating Summons and not by Notice of Motion as was done. Counsel for the respondents begged to differ. He submitted that as he understands it, where a person is aggrieved by a Restriction Notice issued under section 23, as was the case here, all that person is required to do is to bring the application before the High Court for an order to reverse or vary such Restriction Notice and that in bringing the application, all the applicant is required to do is to give the Anti-Corruption Bureau notice of the application. We have considered the arguments very carefully. Although section 23 (or indeed any other section of the Act) does not set out an elaborate procedure for applications brought under the section, subsections (5) and (6) thereof are helpful and illuminating. The two subsections provide as follows: “(S) Any person aggrieved by the directive contained in a Notice issued under subsection (1) may at any time apply to the High Court for an order to reverse or vary such directive. (6) A person making an application under subsection (5) shall give to the Director such notice of the day appointed for the hearing of the application as a Judge of the High Court may order.” In our considered view, the words used in the two subsections are not the kind of words one would expect to be used with reference to the Originating Summons procedure under O.28 with all the formalities that must be complied with there. In our view, the picture that emerges from the two subsections is that of a simple application made to the Court asking for the Restriction Notices or Directives issued by the Anti-Corruption Bureau, also by a simple procedure, to be reversed or varied. With respect, we are of the firm view that the respondents properly brought their application by Notice of Motion. Indeed, it is common knowledge that some civil proceedings may be commenced by Notice of Motion pursuant to O.8 of the Rules of the Supreme Court. We are reinforced in this view by the decision of this Court in Greselder Jeffrey and Brian Kachingwe Phiri v The Anti- Corruption Bureau, MSCA Civil Appeal No. 12 of 2002 (unreported). In that case this Court laid down the procedure where the Anti-Corruption Bureau had obtained an order for the seizure of property and/or freezing of money belonging to a respondent under section 32(5) of the Corrupt Practices Act, and the respondent wanted to have the order discharged or varied. The Court stipulated that the respondent in such a case should make to the Court a simple application, inter-partes, under order 8, rule 2 of the Rules of the Supreme Court supported by an affidavit giving the Director at least two clear days’ notice before the date set for the hearing of the application. Finally on this point, it is to be noted that O.5, rule 3 does provide exceptions to the rule that applications under an Act must be taken by Originating Summons. For example, the rule does not apply to an application made in pending proceedings. On these facts, the appellant’s contention on this aspect cannot prevail and must fail. The other point taken by the appellant was that the Court below flouted rules of natural justice, in that the appellant was not given an opportunity to be heard. With respect, there is absolutely no merit in this ground of appeal. The facts on record show very clearly that the appellant was given notice of the proceedings right at the very commencement of the case. Simply, the appellant was not serious about defending the matter. Indeed it is noted that as the matter progressed, on two occasions, Counsel for the appellant did appear before the Court, but he was only interested in getting the case adjourned. We reject the appellant’s contention. Finally, it was contended that the Court below erred in condemning the appellant in costs. We subscribe to this view, for the simple reason that the appellant could not, as we have seen, be sued, for lack of capacity. An order for costs against the appellant is not tenable in the circumstances. The final result is that the appeal succeeds since, as we have noted, the appellant has succeeded on what was the main and decisive point in this appeal. On the total facts, we think that it is fair and proper that we make no order as to costs. DELIVERED in open Court this 20 day of August 2003, at Blantyre. AS E MSOSA, JA