S v Attorney General (Misc Civil Cause No 65 Of 2005) ((Misc Civil Cause No 65 Of 2005)) [2005] MWHC 113 (15 November 2005);






THE STATE ……………………………………… APPLICANT






Chilenga : For the Interested Parties

Santhe : For the Respondent



This is an application for leave to apply for judicial review by the two interested parties in this case. The application is challenged by the State on two main grounds. Firstly that the matter involves employment of the interested parties therefore that it is basically a private law litigation which cannot be the subject matter for judicial review and secondly that the application is being brought late because according to the rules that apply such applications are supposed to be brought promptly and in any event within three months.

The interested parties were employed by the Malawi Government and worked with the National Intelligence Bureau, commonly known as NIB. Their services were stopped in April, 2005 after Government decided to close the offices of the Bureau. According to the interested parties there has been no hearing of the matter which could explain the termination of their services, hence this application seeking to challenge the decision to terminate their services.

At this stage the purpose is not to look at the merits of the substantive application. I am being called upon merely to determine whether or not to grant leave for the application for judicial review to be entertained.

The procedure for judicial review proceedings is now well established in our courts. The starting point is indeed to seek leave to apply for judicial review. Order 54 r3 of the Rules of Supreme Court proves:-

“No application for judicial review shall be made unless leave of the Court has been obtained.”

Order 53 r 7 provides further :-

“The Court shall not grant unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”

What has occupied my mind much at this stage is the fact that the application is being brought five months after the cause of action and not so much about the private or public nature of the application. According to the procedure in Orders 53 r 4 it is provided that :-

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application arose unless the court considers that there is good reason for extending the period within which the application shall be made.”

It is provided further under Order 53 r 14/58 that :-

“……. the Court has power to extend time for applying for leave to move for judicial review, but only if it considers that there is “good reason” for doing so. Where an application to extend the time is made under r 4, notice thereof must be given to the person who will be the respondent to the motion, C R v Ashford, Kent JJ, exp. Rickey {1955}1 WLR 562. The court will consider whether the grant of an extension of time for apply for judicial review will be likely to cause substantial hardship or prejudice, not only to the instant parties, but to a wider public or may be detrimental to good administration.”

Clearly Order 53 r 4 envisages that where the application for leave to apply for judicial review is made late, it shall be preceded by an application for extension of time where notice shall be given to the respondent; no doubt such notice would contain reasons for the delay to enable the respondent to respond to the application and also to disclose to the court what inconvenience might be caused by the belated application where such might be the case.

It is recently been said by this court in The State v Attorney General Ex Parte General Joseph Chimbayo, Miscellaneous Civil Cause No 32 of 2005 that :-

“The rules of court must be obeyed, and, that in order to justify a court in extending time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, the party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.”

More importantly is the fact that in public law litigation it is crucial that disputes are resolved quickly to avoid public administration being brought to a holt by long outstanding litigation where the facts, the evidence and the relevant information may not easily be unearthed due to lapse of time.

In the instant case, it would have sufficed for this court to merely turn the matter away because as a matter of fact this is not an application to extend time. It is an application for leave to apply for judicial review. In dealing with the matter as I have done it is really for completeness. Probably because this was not an application for extension of time, counsel for the interested parties has not infact attempted any reason to explain the delay; which clearly is inordinate and undue delay, prima-facie.

In attempting to keep the matter alive, counsel has referred the Court to section 17(3) of the Statute Law (Miscellaneous Provisions) Act Cap 5:01 and suggests that the procedure in Order 53, in the nature of this application and in so far as time concerned, in not applicable. I am afraid section 17(3) has clearly been misread and I can only ask counsel to go back and carefully read that provision which has no bearing at this stage these proceedings. That section relates to an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed. In such cases applications for leave to make such an application must be made not latter than six months after the date of such judgment, order, decree, conviction or other proceeding.

Finally this is to say this application for leave to apply for judicial review is refused for being brought way out of time.

I make no order for costs since none of the parties has prayed for costs.

MADE in Chambers at Lilongwe, this 15th day of November, 2005,.

A.K.C. Nyirenda