|
The applicant is
aggrieved with the decision made by the Principal Secretary for
Commerce and Industry (the 1st Respondent) and applies to this Court
to review the decision judicially.
|
|
|
|
The story is that he
was granted with a licence on 13th September 2002 to import 200
metric tons of sugar from Zimbabwe into Malawi. The licence is granted for a
duration to terminate on 13th December 2002. Acting upon this authority, the
applicant bought 200 metric tones of the sugar and transported it
into Malawi via Mwanza Border.
The Malawi Revenue Authority (the 2nd defendant) at Mwanza
refused to process customs formalities because they said they had
information that the licence had been cancelled.
|
|
|
|
Perturbed with the turn
of events, the applicant commenced consultations with the 1st
Respondent to try to find out why the licence was cancelled without
the authorities giving him reasons for doing so and without giving
him an opportunity to be heard.
He then contacted a Mr Mkandawire of the 1st defendant and
later had a meeting with him.
Mr Mkandawire confirmed at the meeting of the cancellation and
handed to the applicant a letter dated 20th September 2002
confirming this cancellation. The letter says:-
|
|
|
|
Mr M. Fatch, 20th September 2002
|
|
P. O. Box 1356,
|
|
BLANTYRE.
|
|
|
|
Dear Sir,
|
|
|
|
CANCELLATION OF IMPORT
LICENCE FOR SUGAR
|
|
|
|
Please refer to the
telephone conversation I had with you (Fatch/Mkandawire) last
Thursday regarding the above quoted subject.
|
|
|
|
I wish to inform you
that licence No. 000519 issued to you to import 200 metric tons of
sugar has been cancelled and should, therefore, not be used for the
importation of sugar.
|
|
|
|
Yours faithfully,
|
|
|
|
Geoffrey Mkandawire
|
|
for: Secretary for Commerce and
Industry
|
|
|
|
The applicant then
wrote a letter dated 17th October 2002 addressed to the Minister
responsible for Commerce and Industry for him to reconsider the
matter stating that the licence had been cancelled when he had
ordered 200 metric tons and which was transported to the Malawi
border of Mwanza on 18th September before the cancellation. He had by then spent K1,000,000.00
to transport the sugar. He
doubted if the suppliers would accept a return of the sugar. He would need to spend another
K1,000,000.00 in the event of re-transporting the sugar. He was using US$140 a day
for..............
|
|
|
|
According to the
applicant he received no reply from the Minister. He then decided to refer the
matter to this court for judicial review as the applicant feels that
his rights for a fair administrative procedure granted by S.43 of the
Constitution have been violated.
|
|
|
|
Section 43:
|
|
|
|
Every person shall have the right to
|
|
|
|
(a)
lawful and
procedurally fair administrative action, Which is justified in
relation to the reasons given whether his or her rights, freedoms,
legitimate expectations or interests are affected or threatened; and
|
|
|
|
|
|
(b) be furnished with reasons in
writing for administrative
action where his or her rights, freedoms, legitimate expectations or
if those interests are known.
|
|
|
|
Consequently, the applicant
seeks an Order of court to nullify the Order for cancellation of the
licence and further an Order
declaring that the Principal Secretary for the 1st Defendant did not
have powers to cancel or revoke a licence where the provisions of the
order or conditions under which the licence was issued were complied
with.
|
|
|
|
Indeed, under Section 43 of the
Constitution it is a must that a public officer performing his duties
as such should give reasons for a decision he makes against any
person. Where this is not
done the decisions should be subject to a judicial review. It is obvious from the letter quoted
above that the cancellation of the licence was made without giving
reasons for that action. This
is contrary to what the Constitution provides, a right to "be
furnished with reasons in writing for administrative action......". I see and can read no reason given
in this letter for the cancellation of the licence. I hold, therefore, that the
decision by the Principal Secretary to revoke is inoperative and of
no effect.
|
|
|
|
Furthermore, the licence was
cancelled without giving the applicant the right to be heard. The right to be heard is called
natural justice. By
proceeding to cancel the licence without giving the applicant the
opportunity of being heard, clearly, the Principal Secretary was
guilty of infringing the constitutional rights of the applicant.
|
|
|
|
In KANDA v GOVERNMENT OF MALASIA 1962 A.C.322, Lord
Denning delivering a judgement of their Lordships in the House of
Lords at page 337, had this to say:-
|
|
|
|
"If a right to be heard is to be a real right which
is worth anything, it must carry with it a right in the accused man
to know the case which is made against him. He must know what evidence has been given and what
statement has been made affecting him; and he must be given a fair opportunity to correct or
contradict them."
|
|
|
|
From the foregoing, it is obvious
the Principal Secretary's action in cancelling this licence was both
unconstitutional and against the principles of natural justice.
|
|
|
|
The cancellation, I hold, was
done in bad faith. The
licence was issued on 13th September 2002. The expiry date of the licence was 13th December
2002. Before the licence's
duration had expired, the Principal Secretary withdrew, evoked and
cancelled the licence more specifically on 20th September 2002. The cancellation was made against
the provisions of Section 43 of the constitution and without
following the principles of natural justice. In my ruling, I hold that there
was unreasonable use, (if not abuse) of the power by a public authority
in the cancellation of the licence.
There was a denial of natural justice. I, therefore, and hereby quash the
decision and ultimate order by the Principal Secretary. The sugar must be released
forthwith to the applicant and the Malawi Revenue Authority must
proceed to attend to customs formalities pertaining thereto.
|
|
|
|
MADE in chambers on 6th day of December 2002.
|
|
|
|
|
|
W.M M. Hanjahanja
|
|
JUDGE
|
|
|