IN THE MALAWI SUPREME COURT OF
APPEAL
AT
BLANTYRE
M.S.C.A. CIVIL APPEAL NO. 1 OF 2003
(Being High Court Lilongwe District
Registry
Miscellaneous Civil Cause No. 1428
of 2002)
BETWEEN:
HON. J.Z.U.
TEMBO..................................1ST APPELLANT
HON. KATE
KAINJA.................................2ND APPELLANT
-vs-
THE HON.
SPEAKER OF .........................RESPONDENT
THE
NATIONAL ASSEMBLY
BEFORE: THE
HONOURABLE, MR. JUSTICE TAMBALA,JA
THE HONOURABLE JUSTICE MSOSA, JA
THE HONOURABLE MR. JUSTICE MTAMBO, JA
Mr. Mvalo, Counsel for the Appellant
Mr. Kamanga, Counsel for the Respondent
Mr. Kaira, Counsel for the Respondent
Mr. Mchacha, Court Official and Recording Officer
JUDGMENT
TAMBALA,
J.A.
The appellants are Hon. John Zenasi
Ungapake Tembo, Member of Parliament for Dedza South Constituency and Hon. Kate
Kainja, Member of Parliament for Dedza South West Constituency. On 13th
December, 2002, the National Assembly passed a motion in Parliament mandating
the Speaker of Parliament to publish in the gazette a notice under section
63-(2) of the Constitution that the Parliamentary seats of the said Hon. Tembo
and Hon. Kate Kainja had become vacant following their conviction for contempt
of court; the National Assembly took the view that contempt of court is a crime
involving dishonesty or moral turpitude.
On 18th December, 2002 the appellants were granted, by the High Court at
Lilongwe, an interlocutory injunction restraining the Speaker from executing
the motion. On 27th December, upon the application of the Hon. Attorney General, the injunction was
dissolved. The appellants were
displeased with the High Court’s decision in dissolving the injunction. They
therefore, appealed to this court.
The relevant facts of this case are
that on 17th June, 2002, Mkandawire, J., sitting at the Principal Registry in
Blantyre granted an order of injunction against the appellants. The injunction restrained the appellants
from holding a Malawi Congress Party Convention on 22nd June, 2002 at the
Natural Resources College in Lilongwe.
Despite the fact that they were duly served with the order of
injunction, the appellants defied the injunction and proceeded to conduct the
Convention. Following contempt of court proceedings brought before the High
Court at Blantyre Principal Registry, Mkandawire, J., On 11th October, 2002
found the appellants guilty of contempt of court for wilfully disobeying an
order of injunction. The learned judge
ordered each appellant to pay a fine of K200,000.00 or serve 12 months imprisonment
with hard labour in default of paying the fine. The appellants were also ordered to pay costs of the court
proceedings. The fines were paid by the
appellants.
On 12th December, 2002, Hon. Paul
Maulidi, Member of Parliament for Blantyre North and also Deputy Secretary
General of the United Democratic Front Party successfully moved the National
Assembly sitting at Lilongwe to pass a resolution requiring the removal of the
appellants from Parliament on the ground that they had been convicted of a
criminal offence involving dishonesty or moral turpitude. Hon. Maulidi claimed, and Parliament agreed,
that the conviction for contempt of
court constituted a conviction of a crime involving dishonesty or moral
turpitude. The Speaker of the National
Assembly was then mandated to cause publication in the Government Gazette that
the two appellants had vacated their parliamentary seats. Such publication
would pave the way for holding bye-elections in the appellants’ respective
constituencies. The appellants would be
barred from contesting in such bye-elections.
On 18th December, 2002 Mr. Mvalo
representing the appellants brought before the High Court, Lilongwe Registry,
an application for leave to commence judicial review proceedings. He was seeking the court’s intervention to
consider whether the National Assembly was correct when it decided that a
conviction of contempt of court constituted a conviction of a crime involving
dishonestly or moral turpitude. The
appellants also claimed that events in Parliament prior to the passing of the
motion in question showed that the National Assembly violated rules of natural
justice. At the same time, learned
Counsel for the appellants applied for an interlocutory injunction to restrain
the National Assembly from executing the motion which it passed. On the same day, 18th December, 2002
Kumange, J., granted, in favour of the appellants, leave to apply for judicial
review of the decision of the National Assembly and an order of interlocutory
injunction.
On 24th December, 2002, Hon. Attorney
General and Hon. Maulidi applied to the same court which granted the order of
interlocutory injunction to have the order vacated. The application was heard on 27th December. It was successful. The injunction was vacated, as we have said above.
Learned Counsel for the appellants
filed eleven grounds of appeal i.e. grounds 2a to 2k inclusive. He argued grounds a, b and c together. The two principal arguments made by learned
Counsel on these grounds are that the Speaker of the National Assembly was rightly
sued when he was made a defendant in judicial review proceedings. The purpose of the judicial review
proceedings was to call upon the court to review the decision of Parliament
which required the appellants to vacate their parliamentary seats on the ground
that they had been convicted of a criminal offence involving dishonesty or
moral turpitude. The other argument is
that even if the Speaker of the National assembly was wrongly sued, an error as
to parties is a procedural error which can be cured by an amendment. Learned Counsel contends that the learned
Judge was wrong to dissolve the injunction on the sole ground that the
appellants had committed a procedural error.
There is no doubt that the
appellants were wrong to sue the Speaker of the National Assembly in the
present case. The question whether the
Speaker of the National Assembly can be sued as a party in judicial proceedings
for a decision made or an act done by him in his official capacity was authoritatively
decided in the case of the PRESIDENT OF MALAWI and the SPEAKER OF THE
NATIONAL ASSEMBLY v. KACHERE and Others M.S.C.A. CIVIL APPEAL NO.
20 of 1995. That case decided
that it would be wrong to sue the Speaker of the National Assembly where a
decision made or an act done by him in his official capacity is in issue. The correct party is the Attorney
General. It is our view that any
decision of the High Court which decides or purports to decide to the contrary
is clearly wrong. That disposes of the
first argument.
As regards the second argument that
a procedural error can be cured by an amendment, we agree that such errors are
rectified by an amendment. But clearly
learned Counsel did not ask the court to allow him to make the necessary
amendment. We are not impressed by
Counsel’s argument that the learned Judge in the court below should have
ordered that the necessary amendment should be made, pursuant to 0.20 rule 8 of
the Rules of the Supreme Court. A
decision regarding which party to sue is an important decision which is made by
a party or his Counsel after a 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. Courts are not in the habit of forcing an amendment on a
litigant: See CROPPER v. SMITH (1884) 26 Ch.D 700.
Section 4 of Civil Procedure
(Suits by or against the Government or Public Officers) Act Cap 6:01
requires at least two months notice before commencing a court action against
Government through the Attorney General.
In the present case the National Assembly passed the motion in question
on 13th December, 2002. It would seem
that the appellants were desperate to obtain an injunction against the National
Assembly’s decision urgently. They were
not prepared to wait for two months before obtaining such injunction. That would explain why they preferred and
insisted to sue the Speaker and not the Attorney General. But the law cannot be evaded in that
manner. Again, according to section
10 of the Civil Procedure (Suits by or against the Government or
Public Officers) Act, no injunction can be granted against
Government, but instead a court may make a declaration of the rights of the
parties. It would seem that the
appellants feared that they could not obtain an injunction from the
court if they sued the Government through the Attorney General. It is correct that an injunction cannot be
granted against the Government. That is
the law. Now, you do not avoid the law
by deliberately suing a
wrong party. We
find no merit
in the arguments made by learned Counsel for the appellants in
respect of grounds a, b and c.
Grounds e, f, g and i related to
judicial review proceedings. Briefly,
the appellants contend, in these grounds, that the learned Judge in the court
below erred when he dismissed the application for judicial review, during the
hearing of an application to dissolve an interim injunction. It would seem that the learned Judge
dismissed the application for judicial review
on two grounds. The first was
that wrong parties were sued as respondents.
The second was that the principal issue to be determined in the judicial
review proceedings was the construction of section 51-(2)(c) of the
constitution and whether the appellants’ conviction of contempt of court was
caught within that constitutional provision.
It was the view of the learned Judge that the construction of a
constitutional provision and the issue whether the appellants were convicted of
a crime involving dishonesty or moral turpitude were not proper subject matter
for judicial review. He took the view
that those matters could be dealt with in proceedings commenced by
originating summons.
We take the view that the learned
Judge in the court below was wrong to dismiss the application for judicial
review. The application which was
brought before him requested him to discharge the injunction. It was not about dismissing judicial review
proceedings. After dissolving the
injunction the appellants would have sufficient time to bring an application to
amend the application for judicial review to reflect the correct parties to the
action.
It is correct that in judicial review
proceedings the court is concerned with the decision making process and not the
merits of the decision under review. It could therefore be argued that the
issue of construction of a statute, constitutional provision or document which
was dealt with in the decision under review would not be a subject of judicial
review. However in an appeal in which
the principal issue is whether an interim injunction granted on 18th December,
2002 was properly dissolved, we find it unnecessary to resolve the question
whether the issue of construction of section 51-(2)(c) and the appellants’
conviction for contempt of court could be
a proper matter for judicial review proceedings. We take the view that that issue may be
carefully considered and resolved in the pending judicial review
proceedings. Then the appellants also
complained that in the course of making the decision in question the National
Assembly breached rules of natural justice.
Clearly the judicial review proceedings should have been spared at least
for the purpose of considering whether the National Assembly failed to observe
principles of natural justice when they debated the motion and passed it. It is our clear opinion that the learned
Judge in the court below was wrong to dismiss the application for judicial
review.
In ground d the appellants contend
that there was no satisfactory ground for dissolving the injunction. The injunction was granted against the
Speaker of the National Assembly, Hon. Paul Maulidi and the United Democratic
Front Party. Clearly all the three
respondents were wrong parties. The
learned Judge in the court below was justified in holding that the appellants
brought an application for judicial
review against wrong parties. He was
right to strike off the said respondents from the proceedings. The question would be having struck off the
three respondents from the proceedings, against whom would the interlocutory
injunction stand? Clearly the appellants
lost the injunction when it became clear that they sued wrong parties. Even if the appellants rightly sued the
Attorney General, they would not, according to section 10 of Civil Procedure
(Suits by or against Government or Public Officers) Act, be entitled to an
injunction. The appellants’ application
for an interlocutory, injunction in the court below was misconceived. It was wrongly granted and the injunction
could not survive an application for its dissolution.
In ground h the appellants claim that the learned Judge
in the court below wrongly thought that the judicial review proceedings related
to the contempt of court proceedings which were brought at the Principal Registry
in Blantyre. We find no justification
in such claim. One of the documents
which was filed in the court below when an application for leave to apply for
judicial review was made is called “NOTICE OF APPLICATION FOR LEAVE TO APPLY
FOR JUDICIAL REVIEW’ (O.53, r 3). The
document clearly shows that the decision in respect of which relief was sought
was -
“ The passing of the motion by the National Assembly
on the 13th day of December, 2002 that the Honourable Speaker do publish in the
gazette notice under section 63 (2) of the Constitution that the seats of
Honourable John Zenasi Ungapake Tembo..............................and
Honourable Kate Kainja....................................have become vacant by
virtue of a conviction....................by the High Court of Malawi of
contempt of court which is a crime involving both dishonesty and moral
turpitude.”
The originating summons filed by Counsel for the appellants to commence judicial
review proceedings made it quite clear that what was required to be reviewed
was the motion of the National Assembly passed on 13th December, 2002 at the
request of Honourable Paul Maulidi, Member of Parliament for Blantyre North
Constituency. Then at page 6 of his
ruling the learned Judge states -
“The gist of the matter lies in the
fact that the two
applicants were removed from
membership of the National Assembly, and upon being aggrieved with the decision
thereof, applied to this court for leave to apply for judicial review.”
Clearly, Mkandawire, J., did not make a decision to the
effect that the two appellants should be removed from Parliament. The learned Judge simply ordered them to pay
a fine. It was the National Assembly
which made the relevant decision. We
are satisfied that the learned Judge in the court below correctly understood
that the application for judicial review concerned the motion passed by the
National Assembly on 13th December, 2002.
In grounds j and k the appellants
contend that the ruling of the learned Judge is unclear and that it lacks
consistent reasoning. They also say
that the learned Judge’s decision is generally against the principles on which
an interlocutory injunction may be dissolved.
We have demonstrated, when we considered ground d, that the injunction
was properly dissolved. We are
therefore unable to find grounds j and k useful. Learned Counsel for the appellants must appreciate and give
credit to the learned Judge for hearing the application on 27th December, 2002
and making and pronouncing his ruling on the same day. He must have written the ruling when it had
become dark as he complains at page 11 of the ruling that he could not read the
Rules of the Supreme Court due to darkness.
The learned Judge deserves praise for making a speedy ruling, and not
unfounded criticism.
The appellants’ appeal relating to
the dissolution of the interlocutory injunction is disallowed on the ground
that the injunction was granted against
wrong parties and also on the further ground that even if the appellants had
brought their action against the proper party, namely, the Attorney General
section 10 of Civil Procedure (Suits by or Against the Government or
Public Officers) Act, clearly prohibits the granting of injunction against
Government. The appellants’ appeal
relating to the dismissal of the application for judicial review is allowed.
The appeal is partly allowed. Each party shall bear its own costs.
DELIVERED in Open Court this 28th day of
April, 2003 at Blantyre.
Sgd..................................
D.G. Tambala, JA
Sgd...................................
A.S.E. Msosa, JA
Sgd..................................
I. J. Mtambo, JA