IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

M.S.C.A. CRIMINAL APPEAL NO. 1 OF 2003

(Being Lilongwe High Court Miscellaneous Criminal

Application No. 19 of 2002)

BETWEEN:

The Anti-Corruption Bureau............................................Appellant

AND

Amos Chinkhadze.................................................1st Respondent

- and -

Joe Kantema........................................................2nd Respondent

BEFORE: THE HONOURABLE MR. JUSTICE TAMBALA, J.A.

Nampota, of Counsel for the Applicant

Nankhuni, of Counsel for the Respondents

Kaundama, Official Interpreter

RULING

TAMBALA, JA

This is an application for setting aside the order made by Msosa, J.A., sitting as a single Judge of the Malawi Supreme Court of Appeal. In that order the learned Justice of Appeal stayed execution of a ruling made by Kumange, J., sitting at Lilongwe Registry in which he directed that the restriction notices issued by the Director of Anti-Corruption Bureau be set aside. Ultimately the present application seeks the restoration of the ruling made by Kumange, J., and the orders made in that ruling. The application is vigorously opposed by the Director of the Anti-Corruption Bureau.

The two applicants, in the present case, are Amos Chinkhadze and Joe Kantema. In the year 2000, they were awarded contracts by the Lilongwe City Assembly to conduct the valuation of all the properties within the City of Lilongwe for rating purposes. The result of the exercise was the production of a Quinquennial Valuation Roll (QVR) which is essentially a register of the valued property. The exercise is required to be carried out every five years, hence the name Quinquennial Valuation Roll. The evidence indicates, quite clearly, that the applicants carried out the exercise to the satisfaction of the Lilongwe City Assembly. There is now a balance of MK9.2 million payable under the contract to Amos Chinkhadze and MK5.8 million due and payable to Joe Kantema. Lilongwe City Assembly is ready and willing to pay the money to the applicants.

The Anti-Corruption Bureau would not allow the applicants to touch the money which is payable under the contract with Lilongwe City Assembly. It says that the applicants are under investigation on an allegation of committing some offences under the Corrupt Practices Act. On 18th March, 2002, it issued restriction notices against the two applicants. The Bureau claims that such notices have been regularly renewed as required by the Corrupt Practices Act. The applicants contend that the Bureau has failed to renew the notices in the manner required by the Act. The notices are issued under section 23-(1) of the Corrupt Practices Act and their effect is that the applicants are restrained from disposing of or otherwise dealing with the money which is due and payable to them from Lilongwe City Assembly. It was disclosed that Joe Kantema was involved in a serious road accident and he requires urgent medical attention and treatment which can be obtained in South Africa; he requires the money, which is now withheld, to enable him to travel to a hospital in South Africa. But the Anti-Corruption Bureau would not relent. It is not prepared to lift the restriction notices.

Evidence presented on behalf of the Anti-Corruption Bureau discloses that some few years ago the Malawi Government decided to privatize valuation services in relation to valuation of properties within city assemblies. At that time Amos Chinkhadze was working as Deputy Commissioner of Lands in the Ministry of Lands, Physical Planning and Surveys while Joe Kantema was Deputy Secretary for Local Government. Both Chinkhadze and Kantema took part in discussions, during various meetings, aimed at the implementation of the privatization program of the said valuation services. Soon after the privatization of the valuation services was implemented, Chinkhadze and Kantema were awarded the contracts to produce the quinquennial valuation roll for Lilongwe City Assembly.

Anti-Corruption Bureau takes the view that the two applicants obtained the contracts in question while holding information in relation to the privatization of the valuation services. The Bureau believes that the applicants committed an offence contrary to regulation 3 of the Corrupt Practices (Prohibition of Abuse of Information obtained in Official Capacity) Regulations, by dealing in a contract in relation to which they had information.

The evidence presented on behalf of Anti-Corruption Bureau also shows that the contracts in question were awarded after Chinkhadze was dismissed from the Ministry of Lands and Joe Kantema resigned from the Ministry of Local Government. Both applicants formed private valuation firms to facilitate the acquisition of the contracts. The evidence further shows that both applicants relied on Government Officers in the Ministry of Lands in order to perform the valuation exercise. They engaged civil servants to work during official working hours. They also used existing files from the Ministry of Lands to carry out the valuation exercise.

I now proceed to examine the Bureau’s application which was brought before Msosa, J.A. in the Malawi Supreme Court. The common practice in our courts is that an application to stay execution of judgment or ruling pending appeal is made to the court which delivered the judgment or ruling. Normally it is made inter-parties. In the event that the application is refused then application is made to the Supreme Court of Appeal: see paragraph 59/13/4 of the Supreme Court Practice 1995 edition. In the present case the Anti-Corruption Bureau avoided the court which made the ruling in question and pursued the application in the Malawi Supreme Court. No reason was given for following the unusual procedure.

Then the Bureau brought the application under O.45 rule 11. That was wrong. O.45 is about enforcement of judgment for payment of money. Order 45 rule 11 is about a person against whom a judgment or order for payment of money has been made. That person can apply to court for stay of execution of the judgment or order on the ground of matters which have occurred since the date of the judgment or order. In the present case no judgment was given against the Anti-Corruption Bureau requiring the Bureau to pay money and no new matters or circumstances were shown which would justify a stay of such judgment. Clearly the Bureau misunderstood o.45 rule 11. Applications for stay of execution of judgment are made pursuant to paragraph 59/13/1 of the Supreme Court Practice: see page 1009 of the Supreme Court Practice 1995 edition.

It is contended on behalf of the applicants that the proceedings before Kumange J., were criminal in nature. They were not. A number of recent court decisions including the decision in the Malawi Supreme Court case of Greselder Jeffrey and Another v. 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 related 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.

The applicants seek relief against an order made by a single judge of the Malawi Supreme Court. I, as a single Judge of the same court, cannot set aside such a ruling or order. The correct procedure would have been to bring the application before the same Judge who made the ruling or order complained against. Alternatively an appeal could be made to the full court of appeal.

It was submitted on behalf of the applicants that the Anti-Corruption Bureau is guilty of inordinate delay as regards commencing prosecution against the applicants. The application before Kumange, J., was made some nine months after the restriction notices were issued and one of the reasons why the learned Judge ruled in favour of the applicants was the Bureau’s delay in commencing criminal proceedings. In the affidavit filed by the Bureau in support of the application brought before Msosa J.A., it was stated, in paragraph 49, that criminal proceedings would commence soon. It would seem that up to now, some four months down the line, the applicants have not been charged with any offence under the Corrupt Practices Act.

It would seem that the Anti-Corruption Bureau has developed the reputation of moving slowly during and after conducting their investigations. I would observe that when the Bureau has invoked its restraining or seizure and freezing powers under sections 23-(1) and 32-(5) respectively they should move swiftly in order to bring about the speedy conclusion of the case which the Bureau has against the suspected person. Delay in commencing criminal proceedings or pursuing such proceedings after they are commenced, amounts to conduct on the part of the Bureau which is oppressive, unfair and unjust. Issuing restriction orders and obtaining seizure and freezing orders, and sitting back thereafter, may produce results worse and more oppressive than the notorious forfeiture orders of the old times. It is for this reason that while I decline to interfere with the decision of the learned Judge of the Malawi Supreme Court of Appeal for lack of jurisdiction, I direct that the Anti-Corruption Bureau must ensure that the appeal which has commenced is heard within 30 days from the date of this ruling. If the appeal is not heard within the stated period the applicants shall have liberty to apply to me to set aside the restriction notices. The Anti-Corruption Bureau may apply to me to extend the period for hearing the appeal for a further period of 14 days only upon showing good and strong reasons why the appeal could not be heard within the said 30 days.

The application is refused. Each party shall pay its own costs.

MADE in Chambers this 9th day of May, 2003 at Blantyre.

D.G. Tambala

JUDGE OF APPEAL