RULING
IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 1750 OF 2001
BETWEEN:
HON. J.Z.U. TEMBO .....................1ST
PLAINTIFF
HON. KATE KAINJA………………………………………2ND
PLAINTIFF
HON. B.B.C. MAJONI…………………………………….3RD
PLAINTIFF
-and-
HON. GWANDA CHAKWAMBA ..……………. 1ST
DEFENDANT
B.B. MTAWALI………………………………………………….2ND
DEFENDANT
S. MASAULI……………………………………………………….3RD
DEFENDANT
K. NKHOMA………………………………………………………..4TH
DEFENDANT
CORAM: THE HON. MR.
JUSTICE F.E. KAPANDA
Mr.
Kalekeni Kaphale of Counsel for the Plaintiffs
Mr.
Bazuka Mhango of Counsel for the Defendants
Mr.
L. Beni, Official Interpreter/ Recording Officer
Date
of hearing: 28th June 2002
Date
of judgment: 14th November 2002
Kapanda, J
JUDGMENT
Introduction
Both parties in
this matter are members of the Malawi Congress Party (MCP) –a political
party registered under
the
Political Parties
(Registration and Regulation) Act (No.15 of 1993). It is also common ground
that the plaintiffs are all members of the National Executive Committee of the
Malawi Congress Party holding the offices of Vice President, Secretary General
and Regional Chairperson for the Central Region, respectively. As regards the
defendants there is no dispute that the first defendant is the President of the
Malawi Congress Party and therefore a member of the National Executive
Committee of the party. Further, it is not in dispute that the other three
defendants are also members of the National Executive Committee. I must add
that the plaintiffs and the defendants belong to two different camps of the
same party. The first plaintiff and the first defendant are no strangers to
these courts. They have appeared in this court before in respect of matters
that deal with leadership of the party.
The parties are
before this court principally because of the decision of the first defendant
in dismissing the plaintiffs as
members of the Malawi
Congress Party. The dismissals of the plaintiffs were to be with immediate
effect. The plaintiffs were obviously not happy with this decision. Thus, on 10th
July 2001, the plaintiffs commenced legal proceedings against the defendants.
The legal suit
was instituted by way of an originating summons where the plaintiffs want, inter alia, the following questions
determined:
1.
Whether
the first defendant could lawfully dismiss the plaintiffs from the Malawi
Congress Party.
2.
Whether
the second, third and fourth defendant could lawfully and rightly constitute a
Disciplinary Committee of the Malawi Congress Party.
3.
Whether
the Malawi Congress Party Constitution permits the National Executive Committee
and/or the President to remove the Vice President, Secretary General and
Regional Party
Chairman without the sanction of the Annual Convention.
4.
Whether
there was a lawfully constituted meeting of the National Executive Committee of
the Malawi Congress Party on 29th June 2001.
The questions enumerated above have not yet
been adjudicated upon. The issues raised by the plaintiffs will have to be
dealt with at the hearing of the Originating Summons. In order to hold the
ring, whilst awaiting the determination of the said questions, the plaintiffs
obtained an ex-parte order of an interim injunction against the defendants. The
injunction was granted on the 10th of July 2001. It was to be valid
until the hearing of the inter parties application for an injunction or until a
further order. Further, the interlocutory injunction was
susceptible to being
discharged or varied at the instance of the
defendants. The other
relevant terms of the injunction, as appearing in the Order of the Court, were
as follows:
“…The defendants must not either by themselves,
their servants, followers or agents, or howsoever otherwise Implement the
decision of dismissing the plaintiffs from the Malawi Congress Party;
0.1
Bar the plaintiffs from
enjoying the privileges and exercising powers given to them by the positions
that they hold within the Malawi Congress Party;
0.2
Oust the plaintiffs from the
positions that they hold within the Malawi Congress Party and elsewhere by
virtue of being members of the Malawi Congress Party;
Until a further order of this Court or until
after trial...”
As it were the defendants are not pleased
with the interlocutory injunction in this matter. To this end, on the 23rd
day of July 2001, the defendants took out a Summons to discharge the injunction
of 10th July 2001.The grounds for discharge will be given below when
I am discussing the arguments of the parties. The plaintiffs are opposing the
application to have the injunction vacated.
In essence there are two applications before
me. There is an application to discharge the interim injunction and another
application for the continuation of the temporary injunction of 10th
July 2001. Both applications are supported by affidavit evidence. I do not wish
to set out in full the contents of the numerous affidavits that are on record.
I will only give a concise summary of the matters of fact as obtaining from the
said affidavits.
The Facts Of The Case
The pertinent matters of fact in this case,
as disclosed in the affidavits mentioned above, may be summarized as follows:
It is an undisputed fact that there has been
bad blood between the first plaintiff and the first defendant. The cause of
this has been an ongoing battle for leadership of the Malawi Congress Party. A
manifestation of the problems between the two was the holding of two different
conventions where the two factions of the party purported to elect leaders of
the party.
The matter of the two
conventions finally ended up in the courts.
On 4th June 2001
the Malawi Supreme Court of Appeal ruled both conventions unlawful.
Following the judgment of the Malawi Supreme
Court of Appeal the first defendant called for a meeting of the National
Executive Committee of the Malawi Congress Party where, among
other things, the members of
the Committee were to discuss the judgment of the said Malawi Supreme Court of
Appeal. The meeting was to be held on the 29th of June 2001. There
is a dispute as to whether this meeting actually took place. The parties are
also not in agreement about whether there was a quorum formed at this meeting
that was called by the first defendant. This ruling does not attempt to answer
the question whether a quorum was formed. That should, and will, be dealt with
at the hearing of the Originating Summons. Be that as it may the affidavits
show that a meeting did take place although not at the appointed venue as
disclosed in the notices of the meeting. The plaintiffs did not attend this
meeting. The reasons for their non-attendance are varied.
The disputed meeting culminated into the
formation of a Disciplinary Committee of the Malawi Congress Party. This
Disciplinary Committee was to inquire into some alleged behaviour and actions
of the plaintiffs. The plaintiffs were invited to
appear before the said
Disciplinary Committee but they did not. However, in response to the letter
inviting them to the Disciplinary Committee, the first plaintiff, in his letter
dated the 4th of July 2001, questioned the status and jurisdiction
of the said Committee. The contents of the letter form the core of the
plaintiffs’ attack of the defendants’ actions. I hereby reproduce the relevant
parts of the letter that was addressed to the National Executive Committee of
the Malawi Congress Party:
“…
Dear Sirs,
RE: CHARGES
AGAINST ME
I acknowledge receipt of your letter dated 1st
July 2001. The letter contains several allegations against me, and I am
summoned to appear before a disciplinary sub-committee on the 8th
day of July 2001 to answer the allegations.
I have difficulty in recognizing the
constitutionalism of the committee before which I am being called to appear in
that
the mandate for the establishment of that committee
seems, to me, to have come from an irregular and invalid meeting.
The meeting where it was resolved to set up a
disciplinary sub-committee, like any other meeting, was subject to principles
of natural justice. Among them are:
1.
Where a meeting is charged
with a quasi-judicial function, that function must be discharged honestly, and
2. It is contrary to natural justice for a person to be judge in his own
cause
3. The accused must have notice that he or she is to be charged with that
offence
4. Was the meeting properly constituted? Was due notice given? Was a
quorum obtained?
5. Nonetheless the proceedings have flouted the above stated principles of
natural justice in that
a) This being a meeting which had assembled to discharge a quasi-judicial
function on the allegations leveled against me, it ought to have taken steps to
ensure that the function was discharged honestly. I was not given the
opportunity to present myself for the meeting whose venue was secret.
b) The charges which I am being called upon to answer have been formulated
by what is called the National Executive Committee which appointed a panel of
three persons from its membership as a disciplinary sub-committee. I am
therefore, being required to be judged by the framers of the charges. The
panelists are therefore both prosecutors and judges in a matter in which they,
themselves have an interest, contrary to the above named principles of natural
justice.
The panelists are known to entertain
animosity
against me. This has been manifested in their
public utterances.
c) It is not clear who attended the National Executive Committee meeting.
Validity of the decisions of that meeting cannot be determined. The President
of the Party is known to have appointed categories of Party Leaders
unconstitutionally and some have featured at National Executive Committee.
Decisions of National Executive Committee cannot be made by an improperly
constituted Forum.
In the circumstances it is not possible to avail myself before this
sub-committee because it was unlawfully constituted at a meeting which
was itself invalid
by
being conducted in breach of principles of natural
justice.
Yours
faithfully,
Hon. J.Z.U.
Tembo, MP”
It would appear that, notwithstanding the
protestations from the plaintiff, the Disciplinary Committee convened and made
some recommendations to the first defendant. As matter of fact the first
defendant deposed that the plaintiffs, on being given the opportunity to be
heard, deliberately avoided to avail themselves of the opportunity to be heard.
The first defendant, in his letters to the plaintiffs, advised that the three
were being dismissed from the Malawi Congress Party. The first defendant, in
his said letters to the plaintiffs, intimated that the decision to dismiss the
plaintiffs was made on advice from the said Disciplinary Committee of the
National Committee of the Malawi Congress Party. The members of the said
Disciplinary Committee comprised the second, third and fourth defendants.
The plaintiffs state that the defendants have
no authority to dismiss the plaintiffs. It is further deposed by them that it
is only the National Executive Committee that can dismiss or suspend them. In
this case, they aver, there was no meeting of the National Executive Committee
that could pass, or passed, such a decision. The plaintiffs moreover put it in
their sworn statement that the Disciplinary Committee that advised the first
defendant to dismiss them was irregularly set up in that the National Executive
Committee meeting that appointed the Disciplinary Committee was null and void
as it lacked the requisite quorum.
It was on the basis of the foregoing facts
that the plaintiffs obtained the temporary injunction, and they want the said
injunction to continue, so that their dismissals should be put on hold until
the determination of the questions put forward in the Originating Summons.
As stated earlier the defendants want the
interim injunction discharged. The principle ground advanced, in the affidavits
in support of application for wanting the interim injunction vacated, is that
the plaintiffs managed to get the temporary injunctive relief by suppressing
material facts. In summary, the defendants have alleged that the following
facts, which they say were material, were deliberately suppressed:
a)
that
the Disciplinary Committee gave the plaintiffs an opportunity to be heard but
that they deliberately defied the said Committee;
b)
that
the Constitution of the Malawi Congress Party empowers the National Executive
Committee to suspend any member;
c)
that
the plaintiffs did not disclose that the defendants are all members of the
National Executive Committee of the Malawi Congress Party;
d)
that
the first plaintiff organized his supporters to
e)
frustrate
the holding of the meeting of the National Executive Committee that was to map
out a political strategy of amicable resolution of the differences within the
Malawi Congress Party leadership.
I must observe that I do not accept the
averment that the matters stated above were suppressed or that they were
material to the application for the interlocutory injunction. The plaintiffs
never suppressed the fact that they were summoned to appear before the
Disciplinary Committee. The allegation of fact that the first plaintiff
organized his supporters to frustrate the meeting of the National Executive
Committee is only the opposite of the assertion by the plaintiffs. On the one
hand the plaintiffs allege that there was no meeting at the announced venue of
the meeting. On the other hand the defendants contend that the venue was changed
because people belonging to the first plaintiff’s faction allegedly stopped
members of the National Executive Committee from meeting at the announced
venue. As regards the issue of the powers of the National Executive Committee I
find that that is not a question of fact but rather a matter of opinion, and/or
a matter of interpretation of the law governing the Malawi Congress Party. I am
saying this because there appears to be a difference of opinion between the
parties as regards who has the power to dismiss or suspend a member. This has
come out clearly in the affidavits on record. On the question of the plaintiffs
not disclosing the fact that the defendants are members of the National
Executive Committee my observation is this: membership of the defendants to the
National Executive Committee of the Malawi Congress Party was not material.
Indeed, I do not think that in not stating that the defendants are members of
the National Executive Committee the plaintiffs deliberately suppressed a fact.
If anything what the plaintiffs did was that they failed to introduce the
defendants as members of the said National Executive Committee of the Malawi
Congress Party. I will come back to this issue of non-disclosure of material
facts later in this ruling.
As stated above, the depositions of the
parties were bulky but the aforesaid are the salient facts of this case. As a
matter of law I have left out matters of opinion and law that were attested to
by the parties in their affidavits. I must now sum up the issue(s) that require
this court’s determination in this matter.
Question(s) For Determination
The court is of the view that there is one
principle issue that has arisen in this matter that requires determination. The
question is whether or not the ex-parte order of an interlocutory injunction of
10th July 2001 should be discharged on the grounds as argued by the
defendants or on any other ground. I will also, in the process of answering
this fundamental question, deal with ancillary questions that were raised by
Counsels in their submissions.
I will now proceed to examine whether the
interim order of injunction herein should be vacated or not.
Consideration of the issues
Principles
upon which an interlocutory injunction will be granted or refused:
The defendants, through learned Counsel, have
argued that this court prematurely granted this interlocutory injunction. Mr.
Mhango has submitted that, since the provisions of the Malawi Congress Party
Constitution bind all members of the party, the plaintiffs should have first
exhausted the mechanism for resolving disputes as set out in the said
Constitution. It is the view of Mr. Mhango that the plaintiffs should have
first appealed, against the decision to dismiss them from the party, to the
National Executive Committee instead of taking these out the proceedings
herein. In support of this argument learned Counsel defendants cited
Articles 14(2) and
66 of the said
Malawi Congress Party
Constitution. Article 14(2) provides that:
“ Dismissal
or suspension of Members
—Any dismissed or suspended members shall
have the right to appeal to the Annual Convention”
And Article 66 is in the
following terms:
“ Interpretation
of Constitution
All disputes regarding [the interpretation] of this Constitution shall, on the advise of
the Legal Advisor be referred to the National Executive Committee for
settlement provided that the aggrieved person may appeal to the Convention
against such a settlement.” [words in brackets supplied by me]
It is the contention of the defendants that
the court ought not have granted the injunction in view of the stipulations in
the
above quoted Articles. They
further submit that the plaintiffs wrongly brought this matter before this
court.
The submission of Mr. Mhango, if seen in the
light of the law of injunction, is untenable as well as a new phenomenon that
does not have support at law. The principles on which an interlocutory
injunctive relief will be granted or refused are clearly spelt out in the
famous and celebrated case of American Cynamid Company Vs. Ethicon Ltd. [1975]
1 All E.R. 504, [1975] A.C. 396. I had the benefit of extensively reading the American Cynamid case [supra] and
exhaustion of remedies available is not one of the principles that a court must
consider before granting or refusing an interim injunction. As I understand it,
the position at law is that an aggrieved party will not be allowed to apply for
judicial review where there is an alternative avenue of getting redress and
that remedy has not been used. It is a fact that the temporary injunction in
this matter was not obtained in judicial review proceedings. The interlocutory
relief herein was obtained
pending the hearing of an
originating process. In any event, the plaintiffs are not seeking remedies in
judicial review proceedings. It is therefore wrong to import the principle of
exhaustion of remedy and apply it in the originating proceedings before this
court.
Further, I want to agree with Mr. Kaphale
that the convening of the Malawi Congress Party is illusory. The Malawi Supreme
Court has ruled that the convention can only be called by the President of the
Malawi Congress Party. The President of the Party happens to be an interested
party in these proceedings. It will be foolhardy on the part of this court to
believe that the first defendant will be interested in calling for a convention
of the Party so that the plaintiffs could appeal against the decision
dismissing them from the party. The interests of justice will not be served if
we accept the argument that the plaintiffs should first appeal to this illusory
convention to be summoned by the first defendant.
Moreover, it must be realized that the courts
will not allow that parties should be denied access to courts on the ground
advanced by the defendants. This is more so where there is an allegation that
principles of natural justice have been breached and an aggrieved party wants
redress. Indeed, what the defendants want to do is to attempt to oust the
jurisdiction of the courts to resolve disputes between individuals.
Furthermore, it is important to note that the Constitution of the Republic
Malawi, in Chapter IV-Section 41(2), has provided that every person shall have
access to any court of law or any other tribunal with jurisdiction for final
settlement of legal issues. This right of access to the courts will be rendered
meaningless if this court accepts Mr. Mhango’s argument that the plaintiffs
were wrong in bringing their dispute to court so that the latter should make a
determination on the issues raised in the Originating Summons. The plaintiffs
have raised legal issues in their Originating Summons that are yet to be
determined. The plaintiffs are entitled to have those legal issues determined
in a court of law.
As they are awaiting such
determination the plaintiffs are, at law, entitled to have their purported
dismissals put on hold. If the only means of putting on hold the dismissal of
the plaintiffs is by way of an interlocutory injunction then I do not see how
the court erred when it exercised its discretion to grant such temporary
relief.
I will shortly come back to this issue of
non-exhaustion of remedies when I am dealing with the question stated below.
Should
the interlocutory injunction of 10th July 2001 be discharged?
As stated above, the question issue for
consideration in this matter is whether the relief, albeit temporary, which the
plaintiffs obtained should be vacated. The decision on this issue will depend
on whether the defendants have demonstrated that there are cogent grounds necessitating its discharge. I have
already shown above that the
arguments advanced by the defendants have fallen short of convincing this court
that the injunction herein was wrongly granted. I will now go a step further to
demonstrate that the balance of justice, or what others prefer to call the
balance of convenience, has tilted in the direction of continuation of this
interim injunction.
This court’s verdict is that its discretion
in this matter must be exercised in favour of the continuation of the temporary
injunction of 10th July 2001. Why has the court exercised its
discretion this way? The court has arrived at this decision because of the
following points: to begin with, the interim injunction, as the name implies,
is only provisional. As such the remedy by interlocutory injunction should be
left flexible and discretionary. The relief is intended to preserve the status
quo ante of the plaintiffs until the court adjudicates on the serious legal
questions put forward in the Originating Summons. This injunction will not stop
the first defendant from implementing his
decision if at the end of
hearing the Originating Summons the court decides in favour of the defendants.
In point of fact, the temporary relief given to the plaintiffs will only delay
implementation of the decision. As already mentioned the decision may be
executed if the court decides against the plaintiffs. Further, there is a risk
of doing injustice to the plaintiffs if this injunction were to be vacated and
it later turns out, after the hearing of the Originating Summons, that the
plaintiffs were wronged. If this injunction is lifted, and the decision of the
first defendant left to stand there will be irreparable damage to the
plaintiffs. The lifting of the injunction means that the plaintiffs will have
to stop exercising their powers as Vice President, Secretary General and
Regional Chairman respectively. Furthermore, the plaintiffs will stand to lose
enjoying the privileges that they have by virtue of being members of the Malawi
Congress Party. The foregoing consequences are clearly spelt out in the letters
of dismissal written by the first defendant. There will be irreparable
damage because damages
for loss of privileges and
exercise of power will be difficult to assess. Indeed, it is important to note
that the remedies that the plaintiffs want are declaratory in nature. The
plaintiffs are not seeking damages. Thus damages will not be an effective
remedy should they succeed in their application for the said declaratory
orders. As a matter of fact declaratory orders cannot be quantified in
pecuniary terms. Since damages would be an ineffective relief it goes without
saying that there is a risk of doing injustice to the plaintiffs if this
injunction is discharged before the court has made its determination on the
application made by the plaintiffs in the Originating Summons. The plaintiffs
might be prematurely and permanently denied protection from the courts thus a
denial of justice.
To the contrary, there is no such risk of
doing injustice to the defendants. If the court later determines that the
defendants were not in the wrong in what they did there is a fall
back position. The first
defendant will simply put into effect his decision to dismiss the plaintiffs.
For the reasons given above this court finds
that the balance of justice was in favour of granting the interim injunction on
10thJuly2001 and it is still tilting in the direction of continuing
the said injunction until the hearing of the Originating Summons. I must
observe that this finding does not dispose of this application. The court wants
to consider if, at law, this interim injunction ought to be vacated on the
ground that there was non-disclosure of a material fact. This is in view of the
fact that I had earlier on intimated that I would come back to this issue of
non-disclosure of material facts.
Non-disclosure
of material facts as a ground for discharging the injunction herein
The defendants’ counsel has submitted that
the interim injunction herein should be discharged on grounds of suppression of
material facts. I have already outlined the facts that the defendants say are
material but were allegedly not disclosed at the time of the application for an
interlocutory injunction. I will not, therefore, spell them out again. Further,
this court has already found that the facts, which the defendants allege were
material and not disclosed, were neither suppressed nor in point of fact
material. Now assuming that this finding was wrong it will be necessary that I
consider whether the injunction should be vacated because of non-disclosure of
the said material facts.
It is settled law that an injunction, that is
obtained on a without notice summons, can be vacated if it is shown that at the
time it was obtained the claimant had deliberately suppressed material facts. I
find that it has not been proven that the plaintiffs deliberately failed to
disclose the alleged material facts. Moreover, it must be noted that even if it
were the case
that there was suppression
of material facts this court would still exercise its discretion in favour of
continuing the injunction where doing so would not cause injustice to the
defendants. This is the position because it is not every omission that would
entail the discharge of an injunction. There must be more than just
non-disclosure if an exp-arte interim injunction is to be lifted. (See the case
of Hon. B.J.Mpinganjira and Six Others vs. The
Speaker of the National
Assembly and The Attorney General Miscellaneous Civil Cause No. 3140 of 2001 [High
Court decision of 27th November 2001] [unreported]).
In the matter before me it has already been
determined that this court is of the view that there will be no injustice
occasioned to the defendants if this injunction is maintained. Actually, there
is no evidence on record to demonstrate that the injunction of 10th
July 2001 has caused, or caused any or will cause any injustice to the
defendants.
Finally, I must mention that the position at
law is that the court still has discretion, regardless of proof that there was
material non-disclosure, which justifies the immediate discharge of an ex-parte
order of injunction, to continue the order of injunction if same could properly
be granted even had the facts been disclosed. (See the case of
Hon.B.J.Mpinganjira and Six Others vs. The Speaker of the National Assembly and
The Attorney General. [supra.]).
This court now has the whole facts of this case and is of the opinion that it
would still have exercised its discretion in favour of granting an injunction.
In the premises the interim order of injunction of 10th July 2001
will continue until the determination of the Originating Summons herein or
until a further order is made.
Conclusion
This court is alive to the fact that the
injunction herein is only temporary and that it must remain so. It should not
be seen
as giving a permanent relief
to the plaintiffs. Accordingly, there is need to have the process of
adjudicating on the questions raised by the plaintiffs expedited. In order to
achieve this I order that the plaintiffs must file, and serve on the
defendants, the affidavits on which they intend to rely on, at the hearing of
the Originating Summons, within the next 14 days. For the avoidance of any
doubt the plaintiffs’ said affidavits must be filed and served before close of
business on 28th November 2002. The defendants, if they wish to
offer affidavit evidence, must file and serve their affidavits by close of
business on 13th December 2002. The parties shall attend court for
the hearing of the Originating Summons on the 27th of December 2002.
Both parties shall see to it that the deadline stated above are complied with.
If the hearing of the Originating Summons shall fail to take place on the
appointed day of 27th December 2002 because of the actions or inactions
or omissions on the part of the plaintiffs then the interlocutory injunction
herein might be dissolved at the instance of the defendants.
The costs of, and occasioned by this
application, shall be costs in the cause.
Made in Chambers this 14th day of November
2002 at the Principal Registry, Blantyre.
F.E. Kapanda
JUDGE
Civil Cause No. 1750 of 2001