Court name
High Court General Division
Case number
73 of 2007
Case name
Ex Parte Kamwaza; S v Traditional Authority Dambe & Ors.
Law report citations
Media neutral citation
[2007] MWHC 92







IN THE HIGH COURT OF MALAWI



LILONGWE DISTRICT REGISTRY







MISCELLANEOUS CAUSE NO.73 OF 2007



(IN THE MATTER OF AN APPLICATION FOR LEAVE



TO APPLY FOR JUDICIAL REVIEW)







BETWEEN



THE STATE







EX-PARTE: PINDANI
KAMWAZA---------------------APPLICANT







AND







TRADITIONAL AUTHORITY DAMBE ----------1ST
RESPONDENT



DISTRICT COMMISSIONER, MCHINJI ------- 2ND
RESPONDENT



SECRETARY FOR LOCAL GOVERNMENT ----3RD
RESPONDENT







CORAM : HON. JUSTICE SINGINI, SC.







: Mr. Chipao of counsel for the
Applicant



Mr. Kachule and Miss Kalebe for Attorney General of
counsel for the Respondents



Mr. Gonaulinji, Court official







RULING







The applicant, one Pindani Kamwaza, has made an
ex-parte application
under Order 53/3 of the Rules of the Supreme Court to obtain leave of
this Court for him to make an application for
judicial review against
the respondents in respect of the respective roles they played in
their public duties in installing the
chieftainship of Group Village
Headman Kakunga on one Masulani Malisoni under Traditional Authority
Dambe in Mchinji District.
The applicant claims that he is the
rightful person to have been installed the chieftainship. The notice
of application for leave
was filed in this Court on 25
th
July, 2007.







Realising that the application for leave was out of
time, counsel for the applicant filed notice applying for extension
of time
within the Court’s discretion, as allowed under Rule 4(1)
of Order 53, on the ground that the applicant had good reason in
delaying
to make the application for leave.







The Attorney General, as counsel for the respondents,
opposes both applications.





I heard counsel in chambers on 9th
August, 2007. At the hearing I gave directions that I would hear both
the application for extension of time within which to apply
for leave
and the application for leave itself and would make my determination
on both applications in one ruling. This is therefore
my ruling on
both applications.







In considering the application for leave to apply for
judicial review, I remind myself of the statement of law as stated in
Order
53/14/19 that the remedy of judicial review is concerned with
reviewing, not the merits of the decision in respect of which the

application for judicial review is made, but the decision-making
process itself. As in the words of Lord Hailsham L.C. (in Chief
Constable of North Wales Police v. Evans

[1982] 3 All E.R.141 at 143), “It is important to remember in every
case that the purpose of the remedy of judicial review is
to ensure
that the individual is given fair treatment by the authority he has
been subjected to and that it is no part of that
purpose to
substitute the opinion of the judiciary or of individual judges for
that of the authority constituted by law to decide
the matters in
question.”.







Further, I refer to Order 53/14/21 where it is stated as
a matter of law, in accordance with Rule 3 of Order 53, that no
application
for judicial review can be made unless leave to apply for
judicial review has been obtained and that the purpose of the
requirement
of leave is: (a) to eliminate frivolous, vexatious or
hopeless applications for judicial review without the need for an
inter-partes judicial
review hearing; and (b) to ensure that an applicant is only allowed
to proceed to substantive hearing if the Court is
satisfied that
there is a case fit for further investigation at a full
inter-partes
hearing.







Having heard counsel for the applicant and considered
the affidavit and skeleton arguments in support of the application, I
ask
myself if the applicant has disclosed a case fit for further
investigation at a full
inter-parte
hearing by this Court. I note from the applicant’s affidavit that
the public authorities against whom judicial review would lie
did
actually engage an investigative process in which the applicant was
heard on his claims to the disputed chieftainship, except
that he has
remained dissatisfied with their decisions. He however has not
pointed out in what way he was unfairly treated in that
decision
making process, except to dispute the accuracy of the minutes of one
of the consultative meetings held at the District
Commissioner’s
office, which he attended, prepared by the officials of the office.
He disputes the minutes to the extent that
he has refused to sign
them, claiming that they contain distortions weighing in favour of
the standing of Masulani Malisoni in
the disputed chieftainship. The
minutes presented the record on the basis of which, according to the
affidavit of the applicant,
the Ministry of Local Government
proceeded to make its decision confirming Masulani Malisoni to have
been properly installed as
the Group Village Headman Kakunga. I
consider that there must be finality to the official record of the
minutes, and I hold that
the minutes must be taken on their face
value as being accurate. In any event, I do not consider that the
accuracy of the minutes
is a proper matter to be resolved at the
judicial review hearing.







I do not see therefore that there would be any further
matter to be investigated at a full judicial review hearing, for
which the
applicant seeks leave, about the decision making process
engaged by the respondents.







It is also a requirement under Order 53/4 (1) that an
application for leave to apply for judicial review shall be made
promptly
and in any case within three months from the date when the
grounds for the application [for judicial review] arose unless the
Court
considers that there is good reason for extending the period
within which the application for leave shall be made.







On the issue of promptness in applying for leave in the
present case, it will be noted from the applicant’s affidavit that
Masulani
Malisoni was installed Group Village Headman Kakunga in 1998
by Traditional Authority Dambe, the 1
st
Respondent, when, according to the affidavit, Masulani Malisoni was
placed on Government payroll and thus became duly recognised
by the
Government. That must be taken to be the time when the ground for
seeking judicial review by the applicant first arose.
The office of
the District Commissioner, the 2
nd
Respondent, later became involved in settling the disputed
chieftainship. The office investigated the dispute with members of
the community including the applicant and in June, 2005, the District
Commissioner made the decision confirming Masulani Malisoni
to have
been properly installed to the disputed chieftainship. The District
Commissioner even advised the applicant to co-operate
and work with
Masulani Malisoni as Group Village Headman Kakunga.







The applicant also states in his affidavit that after
the decision by the District Commissioner he continued to dispute the
installation
of Masulani Malisoni and the dispute escalated to the
Ministry of Local Government, the 3
rd
Respondent, which adjudicated over the dispute in March, 2006, again
confirming Masulani Malisoni to have been properly installed
the
Group Village Headman Kakunga. The applicant was still not satisfied.







The applicant gives as the reason for his delay in
applying for leave to apply for judicial review against the
respondents that
he was unaware of the availability of legal aid
services through the Department of Legal Aid. It is the Department of
Legal Aid
which is providing legal representation to the applicant in
these proceedings.





On the question of delay by the applicant in applying
for leave, that this was due to the applicant being unaware of the
existence
of the Legal Aid Department, it is to be observed that the
Department exists by law, having been established by an Act of
Parliament,
the Legal Aid Act (Cap. 4:01 of the Laws of Malawi),
which is very much part of the statute book in Malawi, having been
enacted
in 1964 and revised in 1966. I hold that ignorance of the
existence of a law cannot be recognised as a reasonable excuse for
the
delay in this case and I uphold the principle that all persons
are to be taken to have knowledge of the law and to be aware of the

existence of published laws. In any case, the right to seek judicial
review, and therefore the requirement to first obtain leave
to apply
for judicial review, exist and operate regardless of the existence or
availability of the services or statutory functions
of the Department
of Legal Aid.







The requirement in law of promptness in applying for
leave for judicial review must be affirmed and enforced as far as
possible.
It is rooted in the importance to avoid unsettling what
have become settled or established situations that have come about or
that
result from decisions of public authorities made in the due
exercise of their public functions.







In the present case, the latest time that the ground for
seeking judicial review arose was in March, 2006, when the Ministry
of
Local Government, as the final authority in the administrative
chain of decision making over matters of chieftainship, gave its

decision confirming Masulani Malisoni to have been properly installed
as Group Village Headman Kakunga. I find the delay since
then to 25th
July this year when the applicant filed his application for leave to
be inordinate and not to have been reasonably explained. I
decline to
extend the time within which to apply for leave.







Accordingly, I dismiss both the application for
extension of time and the application for leave to apply for judicial
review.







MADE in Chambers at the
Lilongwe Registry this 10
th
day of August, 2007.















JUSTICE E.M. SINGINI, SC.



J U D G E