IN
THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
MSCA
CIVIL APPEAL NO. 32 OF 1997
(Being High Court Civil cause No. 63 of 1996)
BETWEEN:
FRED
NSEULA..................................................................APPELLANT
-
and -
THE ATTORNEY
GENERAL..............................1ST RESPONDENT
-
and -
MALAWI CONGRESS
PARTY.............................2ND
RESPONDENT
BEFORE:THE HONOURABLE
THE CHIEF JUSTICE
THE HONOURABLE MR JUSTICE MTEGHA, JA
THE HONOURABLE MR JUSTICE KALAILE, JA
Appellant, not represented
Kenyatta Nyirenda, Counsel for the 1st Respondent
Bazuka Mhango, Counsel for the 2nd Respondent
Ngaiyaye (Mrs), Official Interpreter/Recorder
R
U L I N G
Mtegha, JA
The 2nd Respondent in this matter has raised three
preliminary objections which require to be dealt with before the substantive
matter is considered by this Court.
These objections are as follows:
“ (i) That more than three
Justices of Appeal may be constituted on this Appeal.
(ii) It is not an Abuse of
Court process to move to set aside a Ruling when an application to vary the
order of a single Judge of Appeal is summarily refused.
(iii) It is not an abuse to
apply to set aside a ruling which orders that there is no reason for not
hearing the cross Appeal brought by the 1st Respondent even when the
substantive Appeal no longer exists.”
The brief facts of the case are these. The appellant herein filed an appeal against
the judgment of Mwaungulu, J which he delivered on 1st October
1997. Subsequently, the 1st Respondent
filed a notice of motion of intention to affirm the judgment on grounds other
than those relied upon by the Court below.
Soon thereafter, the appellant decided to withdraw his appeal, but the
1st Respondent desired to continue with notice of motion. The 2nd Respondent, however, decided to file
an application stating that notice which the 1st Respondent filed is without
merit because the substantive appeal had been withdrawn. In a lucid judgment, Unyolo, JA
sitting as a single Judge of Appeal, held that under O.III, r.13 of the Supreme
Court of Appeal Rules, the 1st Respondent was entitled to file the notice. The 2nd Respondent appealed against that
ruling to the full Court, and on 21st November 1997, the full Court dismissed
the appeal summarily as an abuse of court process. It is against that ruling that the 2nd Respondent now raises the
preliminary objections.
It has been submitted by Mr Mhango that there is need
for more than three Judges to hear this case because of the nature of the
case. The Supreme Court of Appeal can
be constituted to an uneven number of five or seven Justices of Appeal. We have stated on several occasions that
the practice of this Court has been that three Justices of Appeal constitute a
full Court. If there is need, a full
Court comprising five or seven Justices of Appeal could be empanelled. But we see no need in this case. In any case, the empanelling of the Supreme
Court of Appeal is purely an internal administrative matter of the Supreme
Court of Appeal, and no one else can determine its composition.
Further, the Court dismissed the 2nd Respondent’s
application to vary Unyolo, JA’s ruling because it saw no merit in the
application. Unyolo, JA’s ruling
covered all what was required and we found that there was no point for us to
dwell on the same issues which the learned Justice of Appeal adequately dealt
with. Indeed, we considered it an abuse
of court process in our earlier ruling.
This Court has inherent powers to dismiss summarily an application which
is frivolous and an abuse of the court process. That is how we viewed that application. Mr Mhango has submitted that by not affording him the opportunity
to argue his case before us, we were in violation of his rights under section
43 of the Constitution. As we have
already said, Mr Mhango’s application was not coming before this Court for the
first time. He had been given the
opportunity to be heard before Unyolo, JA. He was raising the same issues on the same facts before the full
Court. The Court, as we have pointed
out, has inherent powers to hear
or
not to hear an application where the full facts of the issues for determination
are before it.
It has also been submitted by Mr Mhango that there is
no subject matter upon which this Court can entertain this appeal because the
appeal has been withdrawn by the appellant.
If the learned Counsel read the ruling by Unyolo, JA, he would
have discovered that O.III, r.13 of the Supreme Court of Appeal Rules covered
the present situation and the rule entitles the Attorney General to continue
with his notice. We find that there is
nothing new and novel in the present appeal to entitle us to disagree with the
learned Justice of Appeal.
For these reasons, we dismiss these preliminary
objections, with costs.
DELIVERED in open Court this 9th day of November 1998,
at Blantyre
Sgd ......................................................
R A
BANDA, CJ
Sgd ......................................................
H M
MTEGHA, JA
Sgd ......................................................
J B
KALAILE, JA