S v District Commissioner Kasungu and Another; Ex Parte: Phiri and Others (Misc. Civil Cause No 43 of 2005) ((Misc. Civil Cause No 43 of 2005)) [2006] MWHC 69 (17 February 2006);

Share


IN THE HIGH COURT OF MALAWI

LILONGWE REGISTRY

MISC. CIVIL CAUSE NO 43 OF 2005


BETWEEN :


THE STATE

-v-

THE DISTRICT COMMISSIONER KASUNGU….1st RESPONDENT


-and-


THE ATTORNEY GENERAL…………………2nd RESPONDENT


EX-PARTE FRANKSON PHIRI AND OTHERS …… APPLICANT



CORAM : HON. JUSTICE A.K.C. NYIRENDA


Kita; Counsel for the Applicant

Ntaba; Counsel for the Respondent

Mlenga; Court Interpreter



R U L I N G


HON. NYIRENDA, J.


The applicant, by this application, seeks extension of time for applying for leave to move for judicial review. It is trite that an application for leave to move for judicial review must be made promptly as the circumstances of the case will allow, and in any event such application must be made within three months from the date when grounds of the application first arose. The court however has power to extend time if it considers that there are “good reasons” for doing so, see Order 53/14/58 of the Rules of the Supreme Court.

The decisions which the applicants wishes to challenge was made on the 6th of October 2004 when His Excellency the State President installed Staphano Chisale as Traditional Authority Simlemba instead of himself. This application was filed on 7th July 2005, nine months after the decision sought to be challenged. Obviously the applicant is out of time and therefore that the matter can only be salvaged upon good reasons.


The reasons for the delay given by the applicant are that when he learnt that some other person was about to be installed Traditional Authority Simlemba he, with others, took up the matter with the Secretary for Local Government and the District Commissioner, Kasungu. The matter was indeed discussed and they were told a decision would be made. While waiting for the decision the State President went ahead and installed Staphano Chisale. The applicant went back to the District Commissioner and eventually to the Secretary for Local Government to query the development. He says the Secretary for Local Government was equally surprised with the development because Staphano Chisale was not on the list of those who were to be installed chieftaincy because the matter was still to be resolved. The applicant and his people continued to discuss the matter with the Secretary for Local Government and was after sometime told that there was nothing that could be done about the matter. It was at that time that he thought of consulting lawyers who in assisting him warned that the matter was out of time for purposes of judicial review.


As pointed out earlier this application came to court nine months after the decision of the State President. Strictly speaking, the only reason why the applicants did not come to court within three months is because they were not aware of legal requirements in such matters. What is also true however, on the facts, is that the applicant felt that the most appropriate place for discussing chieftaincy matters is at the District Commissioner and the Ministry of Local Government. Otherwise the applicant would have rushed to court within three months from the date of the decision or a little while thereafter. In a way the applicant was right because courts should be reluctant to intervene in matters of selection of chiefs which are matters properly in the domain of public administration and custom. There are a number of variables for consideration which courts are usually ill equipped to appreciate. These are matters where courts should in my view, be slow to intervene.


In the instant case the court is being called upon to intervene in a decision that is now over one year. It is in this regard that it has been said:


“…. even if satisfied that there is “good reason” the court may refuse leave to extend time because to grant such a relief would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.”


See R vs Stratford on Avon District Council, exp Jackson [1985]1 WLR 1319.


In my considered opinion it is now way out of time for this court to attempt upset what has administratively been put in place. I believe this is the kind of situation which is better left to administrative resolution through the good offices of the Ministry of Local Government and perhaps the Office of the President.


The result of these considerations is that this application must fail and I dismiss it.


The respondents have not sought costs of the application. I therefore make no order for costs.



MADE in Chambers at Lilongwe this 17th day of February 2006.



A.K.C. Nyirenda

J U D G E