Anti-Corruption Bureau v Atupele Properties Limited (27 of 2005) [2007] MWSC 2 (01 February 2007);

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IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
M.S.C.A. Civil Appeal No. 27 of 2005

(Being High Court Miscellaneous Civil Cause No. 286 of 2005)


BETWEEN:

THE ANTI-CORRUPTION BUREAU……………………………………………APPELLANT

-       

and –

ATUPELE PROPERTIES LIMITED……………………………………….……RESPONDENT



BEFORE:  HON. THE CHIEF JUSTICE
                  HON. JUSTICE KALAILE, SC, JA
                  HON JUSTICE MTAMBO, SC, JA

                 
Nampota, of counsel for the Appellant
                  Kanyenda, of counsel for the Respondent
                  Selemani, Court Official

 




JUDGMENT

Mtambo, SC, JA

 

         On November 09, 2005, the High Court vacated a notice, herein- after called “the Restriction Notice” which was issued by the Director of the Anti-Corruption Bureau (the appellant) to the Land Registrar that the Land Registrar shall not authorize the sale of a certain property, hereinafter referred to as “the property” or deal with any other matter in relation to the property without the consent of the said Director. The appellant applied to this court for a stay of execution of the judgment pending appeal. The application was dismissed by a single member of the court. This appeal is against the both decisions.
 
We think that we should point out at the outset that the property has now been disposed of and that the appeal was prosecuted merely to settle some matters of law. These are whether:
 
(a)      an application for renewal of a restriction notice is a civil or a criminal proceeding?

(b)     
proprietorship or possession of property affected by a restriction notice is a relevant factor in an application for renewal of a notice, and

(c)     
non-disclosure of encumbrance of the property in an application for renewal of a notice is fatal to the application.

Then there is the appeal against the judgment of a single member of this court.

The subject matter of the appeal the Restriction Notice which is issued under the Corrupt Practices Act (No 18 of 1995). It is issued under section 23(1), which empowers the Director of the appellant to direct, by written notice to any person who is the subject of an investigation in respect of an offence under the Act or against whom a prosecution for such offence has been instituted, that such person shall not dispose of or otherwise deal with any property specified in such notice without the consent of the Director.

Sub-sections (2) and (3) are about the mode of service and the duration, respectively, of the notice. And acting in relation to a property, in a manner as if a notice did not exist is made an offence under sub-section (4). Sub-section (5) provides for the remedy to any person aggrieved by a directive contained in the notice so issued that, at any time, may apply to the High Court for an order to reverse or vary such directive. Sub-sections (6) and (7) are about the notice to the Director of an application under sub-section (5) and the kind of orders which the High Court may make, respectively.

We just want to quickly observe here that the Land Registrar was not a person who was the subject of any investigations or against whom a prosecution for an offence under the Act was instituted. Therefore, it seems to us that the notice against him was not authorized by law. All that should have been done was merely to bring to his knowledge the existence of the notice for the purpose of sub-section (4). We thought we should say this, if for nothing else, to correct the impression which learned counsel for the appellant gave us that a restriction notice can be issued against any person who may deal with the property. That is not correct because it can only be issued to a person who is the subject of an investigation or against whom a prosecution has been instituted in respect of an offence under the Act.

We now turn to the issues which have been argued in the appeal. It has been contended that the High court erred in law in finding that the application for renewal of the Restriction Notice was wrongly pursued as a criminal matter. It is argued by the appellant that the application having been brought pursuant to investigations of a criminal nature, it could not have been brought as a civil application but only as a criminal application.

The authority under which the application was made is sub-section (3) which provides that the Restriction Notice upon expiry may be renewed for further periods of three months on application to a magistrate showing cause why it should be renewed. And it was in respect of this that learned counsel argued that the application having been made under a criminal statute, it could not have been of a civil nature but of a criminal nature. Learned counsel went further and said that under section 2(2) of the statute (Corrupt Practices Act), the procedure in the investigations and prosecution of the offences under the Act are governed by the Criminal Procedure and Evidence Code (Cap. 8:01) of the Laws of Malawi. He, therefore, submitted that it would be quite strange to hold that investigations being undertaken pursuant to the Criminal Procedure and Evidence Code “will in themselves be of a civil nature”.

We do not think that the question is whether the investigations will be of a civil nature but rather whether a proceeding regarding the renewal of the notice is of a civil or criminal nature. We remind ourselves here that the argument by the respondent, both before us and in the High Court, was simply to the effect that the proceeding in the magistrate court was irregular in that the application for the renewal of the Restriction Notice was dealt with as if it was a criminal matter when such applications are civil in nature.

We have examined the record of the proceeding in the magistrate court and observe that all this is because the matter in that court was listed as ”Miscellaneous Criminal Application………..” and it seems it is for this reason that the High Court held that the magistrate did not have jurisdiction “as the application was civil and not criminal”.

The jurisdiction to renew a restriction notice is conferred on a magistrate by an Act of Parliament. We do not think that the jurisdiction can be lost or taken away by reason merely of an irregularity in a proceeding before the magistrate. The magistrate had jurisdiction whether the matter was brought as a civil or criminal application. The High court was, therefore, wrong to have stripped the magistrate of jurisdiction merely because of what it appears to have been no more than an irregularity.

Turning now to the question whether a proceeding for renewal of a restriction notice is of a civil or criminal nature, we have this to say. A criminal proceeding is instituted and conducted for the purpose either of preventing the commission of crime or for fixing the guilt of a crime already committed and punishing the offender as distinguished from a civil proceeding which is to redress, enforce or protect a private right – see Black’s Law Dictionary, sixth edition. Therefore, because an application for renewal of a restriction notice cannot be said to be for any of the purposes for a criminal proceeding, and because the purpose for such an application is akin to the purpose for a civil proceeding, the application for renewal cannot be criminal but civil in nature. Besides, it is usually the case that such an application will be brought even before a charge is preferred against a person in which case it is hard to see how such an application can at all be regarded as criminal in nature. The mere requirement that the investigations and prosecution of offences under the Act will accord with the procedure under a criminal procedure code can be no reason for all proceedings or applications under the Act to be criminal in nature. The only purpose for the Criminal Procedure and Evidence Code is to provide the rules of law governing the procedures by which crimes are investigated, prosecuted the punished, and that that is also the only purpose for section 2 (2) of the Corrupt Practices Act. We would add here that that would also be the case in respect of an application under sub-section (5) when a person aggrieved by a directive contained in a restriction notice seeks to vary or reverse such directive.

Furthermore, in the case of The Anti-Corruption Bureau vs Amos Chinkhande and Jose Kantema M.S.C.A. Criminal Appeal No. 1 of 2003 (unreported), a single member of this court was also of this view, and one would have thought that the matter has been settled, when he said:
 
“It is contended on behalf of the applicants that the proceedings…..…………were criminal in nature. They were not. A number of recent court decisions including the decision in the Malawi Supreme Court case of Greseleder Jeffrey and another vs Anti-Corruption Bureau, M.S.C.A. Civil Appeal No. 12 of 2002, have held that applications of that kind are civil in nature. It is true that those decisions relate to applications for a seizure and freezing order. However, I am of the clear view that those decisions can safely be extended to apply to applications concerning restriction notices”.

         We maintain this view and, for the reasons we have alluded to above, hold that an application, or, a proceeding, for renewal of a restriction notice is, for all purposes, civil in nature.

         Regarding the issue of possession or proprietorship of a property affected by a restriction notice, we observe that the High Court did not base its decision on either of these. We are, therefore, having to say something on it just because it was argued before us. The contention was that the High Court misconstrued sub-section (3) by holding that the issues of possession and proprietorship of a property were of relevance to an application for renewal of a restriction notice when both issues are not relevant in terms of sub-section (1). We agree that both possession and proprietorship of a property are irrelevant considerations under sub-section (1) which governs the issuing of the Restriction Notice and, therefore, that we do not see how these, without further provision can become relevant considerations only at renewal of the Restriction Notice. It is, therefore, not a requirement for renewal of the notice that the person affected by it should be in possession or own the property concerned. The purpose for the notice is mainly to preserve the property in question so that in the event of a conviction something can be salvaged.

         What we have said above regarding possession and proprietorship of property affected by a notice also takes care of the issue which was raised regarding encumbrance of such property. It was argued that the High Court erred in law in holding that the appellant was guilty of suppression or non-disclosure of material facts as such finding had no legal or factual basis. The finding of the High Court was that the appellant did not disclose in its application for renewal that the property was encumbered. Well, it does not seem to us, by any stretch of imagination, that the appellant may be required to first ascertain whether or not the property is encumbered before seeking to renew the notice. This is because it seems to us that there would be no need for doing so from the point of view of the appellant whose primary interest, as we have said above, would be to preserve the property so that there can be something to salvage in the event of a conviction. And if there are encumbrances, the beneficiaries thereunder have sub-section (5) for their remedy.
 
We now refer to the appeal against the decision of the single member of the court refusing a stay of execution of the judgment of the High Court. It is contended that the single member would have granted the stay if he had considered that the effect of his refusal was that the appellant, whose appeal had some prospect of success would be ruined.

         The jurisdiction conferred by law on the court is to hear appeals from the High Court and such other courts and tribunals as an Act of Parliament may prescribe – vide section 104 of the Constitution of the Republic of Malawi. A single member of the court is none of such courts.

And under S. 21 of the Supreme Court of Appeal Act (Cap. 3:01) of the Laws of Malawi, an appeal lies to the Court only from a judgment of the High Court.
The powers which a single member may exercise are conferred by section 7; he may exercise any power vested in the Court not involving the hearing or determining of an appeal. They are delegated powers. An appeal against the decision of a single member would, therefore, be an appeal against the Court to itself. That, however, is not to say that the decision of a single member is final, no, not at all, for it cannot be because a single member is not the court vested with that power. And the way by which such a matter may be brought before the court is by fresh application and not by way of appeal – see Order 59 rule 14 (12) of the Rules of the Supreme Court 1965.

         We have said above that learned counsel for the appellant argued before us that the single member would have allowed a stay if he had considered the effect of his refusal to have been that the appellant would be ruined. Learned counsel referred to the case of Linotype-Hell Finance Limited vs Baker(1992) 4 ALL ER, 887 which is for the proposition that it is a legitimate ground for granting an application if it can be shown that the appeal has some prospect of success and that without a stay, the applicant will be ruined. Yes, that may indeed be so, but it does not seem to us that the proposition advances anything new in the law as it is applied today which is, in general, that the court will not grant a stay unless satisfied that there is a good reason for doing so – see Order 50 rule 13(1) of the Rules of the Supreme Court. And we think that if an applicant can show that the result of refusing a stay would be that he will be ruined, that would be more than a good reason for a stay.

         We think that all the points have been clarified. As for costs, we are aware that these will normally and as a matter of course be allowed to the prevailing party. But considering that the questions the appeal raised were mainly of law and, therefore, of general benefit, it is hard to talk of a prevailing party in such circumstances. We therefore, think that the justice of the matter would be in each party bearing own costs, and we so order.

         DELIVERED in open court this…………………….day of February 2007 at Blantyre.





                                             ………………………………………

                           Signed:  L. E. Unyolo SC
                                             CHIEF JUSTICE



                                             ………………………………………
                           Signed:  J. B. Kalaile, SC, JA




                                             ………………………………………
                           Signed:  I. J. Mtambo, SC, JA