16 October 2018
Breaking News

Malawi Supreme Court Throws Out New Applications against Lake Malawi Water Supply Project; Summary and Full Judgement

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Khato Holdings Executive Chairman, Simbi Phiri: His company scores another success with the Courts - File Photo Khato Holdings Executive Chairman, Simbi Phiri: His company scores another success with the Courts - File Photo

The Malawi Supreme Court of Appeal has dismissed an application filed by Mzuzu-based Youth and Society (YAS) and Centre for Human Rights and Rehabilitation (CHRR) to join or substitute Malawi Law Society (MLS) in the Lake Malawi Water Supply project case.

Months ago the Malawi Law Society (MLS) had their case against Lilongwe Water Board thrown out by the Supreme Court for lack of understanding of the technicalities of the project.  

It was after that first case that YAS and CHRR wanted to resuscitate the case by becoming party to or substituting MLS as applicants.

The ruling by Justice Chikopa however indicated that there were no proceedings before the Court to be joined. Further the two NGOs had no sufficient interest in the matter and there were no enough reasons to extend the time within which to file an application before the full bench of the Supreme Court.

This means the previous ruling by Justice Chikopa stands as delivered in the previous ruling.

Despite some legal hitches from other lone voices, the project’s contractor Khato Civils has been engaging the client LWB and Government of Malawi to make sure that all remaining grey areas are ironed out in readiness for commencement of construction of the project.

To date Khato Civils has already injected around $20million in setting up structures on the ground and moving heavy-duty machinery from South Africa and Botswana to Malawi.

As things stand it is just a matter of time for construction work of the whole water system to commence afterwhich 12 months later Lilongwe City will have stable and reliable water supply.

The project – which will pump, sanitize and transfer 100m3 of clean potable water from Salima to Lilongwe every day- came as an intervention to decade-long acute water problems in the Capital City which is also Malawi’s seat of government.

 

FULL RULING BY THE SUPREME COURT:

THE MALAWI SUPREME COURT OF APPEAL SITTING AT BLANTYRE
MSCA CIVIL APPEAL NO. 59 OF 2017
[Being High Court, Zomba Registry, JR Cause Number 16 of 2017]

BETWEEN

LILONGWE WATER BOARD                             IST RESPONDENT
AND

MINISTER OF AGRICULTURE IRRIGATION
AND WATER DEVELOPMENT                           2ND RESPONDENT

THE DIRECTOR OF ENVIRONMENTAL
AFFAIRS                                                       3RD RESPONDENT

THE MINISTER OF NATURAL RESOURCES
ENERGY AND MINING                                    4TH RESPONDENT

KHATO CIVILS PROPRIETARY
LTD                                                             INTERESTED PARTY

YOUTH AND SOCIETY                                    1ST APPLICANT

CENTRE FOR HUMAN RIGHTS AND
REHABILITATION                                           2ND APPLICANT

EX PARTE:  MALAWI LAW SOCIETY                

CORAM:       THE HON. MR JUSTICE L P CHIKOPA SC JA
B Theu of Counsel for the Applicants
Likongwe of Counsel for the 1st Respondent
Chisiza, Senior State Advocate for the Attorney General, 2nd, 3rd and 4th Respondents
C Gondwe/I Wadi/Mbeta of Counsel for the Interested Party         
                   Chimtande Mrs./Masano Ms. Court Clerks

RULING

BACKGROUND
There is a history to this matter. In so far as we are concerned we narrated the same in our ruling of October 20, 2017 concerning the same parties save for our current Applicants. In relation to the applications before us we still think it proper that we restate the background. In doing so we will take care to talk only about facts not in dispute.

The First Respondent and the Interested Party entered into an ‘engineering, procurement and construction’ contract for the extraction of water from Lake Malawi to the city of Lilongwe[our emphasis]. The Malawi Law Society[the Society] sought from the Zomba Registry of the High Court of Malawi leave[permission] to judicially review the said Contract. According to Form 86A the judicial review was to consider the failure or refusal by the First Respondent to conduct an Environmental Impact Assessment[EIA] before implementing the above contract.

Leave[permission] to commence judicial review proceedings was granted on April 21, 2017. By a ruling of September 15, 2017 the High Court dismissed an application from the Interested Party and the Respondents to discharge the abovementioned leave. It also granted the Society an interlocutory injunction restraining the Interested Party from implementing the said project until the judicial review proceedings were determined to finality.

The Interested Party approached this Court for leave to appeal against the grant of leave for judicial review, a stay of the order of interlocutory injunction and a stay of the proceedings in the High Court pending the determination of the appeal referred to hereinabove. We granted the first two applications via a written order dated September 20, 2017. The third application was granted by a similar order dated September 29, 2017.

It is a fact that having been granted leave to commence judicial review proceedings on April 21, 2017 the Society was supposed to file a substantive motion for judicial review by close of court business on May 5, 2017. It did not. It only did so on September 29th, 2017. Way beyond the said May 5, 2017 and, if we might add, without having sought and obtained the Court’s permission to file the substantive motion out of time. It might be of interest that the substantive motion was filed after this Court’s interventions of September 20 and 29, 2017.

It is also a fact that the Society by a summons filed on June 2, 2017 and returnable on June 15, 2017 sought to ‘extend time within which to file the motion and also to amend the same’. The summons was not heard. The Society did not attend Court on the appointed day, date and time.

There has, somewhat needless to say, and as a factual consequence of the immediately foregoing never been any amendment[s] to the papers the Society put before the High Court in Zomba on April 18, 2017. The only issue for judicial review therefore still remained that to do with the application of the Environmental Management Act specifically about environmental impact assessments[EIAs].

The above we find important to say because just like the Society the Applicants somehow found it appropriate to put before us a ‘sought to be amended’ version of the process that was before the High Court. In the absence of a duly sanctioned amendment that could not, with the greatest respect, have been the best thing to do. The Applicants should have stuck to the paperwork filed by the Society in the High Court on April 18, 2017. The ‘sought to be amended’ version of Form 86A cannot, indeed is not, therefore part of these proceedings.

By a ruling dated October 20, 2017 this Court concluded that the Society having failed to file, in accordance with Order 53 of the Rules of the Supreme Court[RSC] a substantive motion for judicial review by close of court business on May 5th, 2017, the leave granted on April 21, 2017 lapsed/expired. The effect thereof was that there has been before the High Court no recognisable proceedings between the Society, the Respondents and the Interested Party since May 6, 2017. The Court thereby lost jurisdiction. The sittings of May 19, 2019 and September 15, 2017 were exercises in futility. Any orders/decisions, including the orders of interlocutory injunction and that refusing to vacate leave, made pursuant to such sittings were a nullity for having been made in the absence of any recognisable proceedings.

We also said obiter that we would have, if the same were in issue, have stayed the interlocutory injunction granted by the High Court staying implementation of the project. There was in our view no dispute between the parties warranting the issuance of an injunction it being common cause, at least to the Honourable the Attorney General and the Respondents and the Interested Party, that an EIA, a necessity only during the construction phase of the project, would be carried out. We also thought that there were alternative remedies, including damages, to the dispute that made an injunction, interlocutory or otherwise, not necessary.

On November 15, 2017 the First Applicant namely The Registered Trustees of Youth and Society[YAS] filed an ex parte notice of motion with this Court. It was brought under section 8 proviso (b) of the Supreme Court of Appeal Act, Order III rule 34 of the Supreme Court of Appeal Rules  and Part 19.2, 19.4 PD 19A of the 1998 Civil Procedure Rules of England. The motion seeking an order:

  1. ‘Permitting The Registered Trustees of Youth and Society[YAS] to be joined as a co-applicant with or in substitution of the Malawi Law Society for purposes of prosecuting the matter before the full Court and in the lower Court in the public interest.
  2. Extending the time within which to lodge the matter before the full Court for the reversal, variation or setting aside of the decision of the single member.
  3. Any directives as to the further conduct of the matter’.

The application was supported by the affidavit of Charles Kajoloweka its Executive Director.

On November 24, 2017 a notice of motion similar to that filed by YAS was filed by The Registered Trustees of The Centre for Human Rights and Rehabilitation[CHRR].   There was in addition to the legislative base set out in the YAS application ‘the inherent jurisdiction of the Court and Order 1 rule 4 of the Supreme Court of Appeal Rules’. The application was supported by an affidavit sworn by its Executive Director Timothy Pagonachi Simbega Mtambo. For the record both Applicants were represented by Mr Bright Theu of Counsel who hitherto acted for the Society in this very matter.

The first application was placed before us on November 17, 2017. We ordered that the matter be brought inter parties on December 1, 2017. On November 20, 2017 we were attended in our Chambers by Counsel for the Applicants. He was essentially seeking an explanation firstly as to why the matter was not dealt with ex parte in view, in his view, of its simplicity and secondly whether we could not bring the date of the inter parties hearing forward. We were not of much help either way.

On the first point we thought it better for purposes of better case management that the application were heard inter parties. We did not want a situation where parties kept approaching us ex parte seeking orders and vacations when there was the possibility of all and any matters being sorted out at one sitting. About the date our diary could not accommodate a nearer date.

On November 30, 2017 Counsel also approached us in Chambers. There were issues concerning adherence to the directions we gave regarding the conduct of the matter on November 17, 2017. He asked either for an extension of time within which he could be able to comply especially with the service time lines. In the alternative he asked if we could adjourn the matter so that those parties travelling from Lilongwe should not waste time and treasury.

His requests were in the circumstances well understood. In point of fact we were not ourselves averse to an adjournment. It was however clearly not most proper that the accommodations he sought be done without hearing the other parties. We therefore advised Counsel to see if he could either persuade the other parties to accept an adjournment in which case we would then be presented with a fait accompli the next day or in the alternative if they could be persuaded not to insist on strict compliance with the time lines set forth in our order of November 17, 2017. Fortunately it turned out well. The parties agreed to forego some of their service time entitlements with the result that we were able to hear the applications as scheduled. Enough reason, we think, that we should be most obliged to the Bar.

The Respondents and the Interested Party resist the Applicants’ applications. The latter also filed an application for security for costs. It is supported by all of the Respondents.

THE ISSUES
Generally the questions coming from the Applicants are whether or not they can be ‘joined as a co-applicant with or in substitution of the Malawi Law Society for purposes of prosecuting the matter before the full court and in the lower Court in the public interest’ and secondly whether the time within which they can lodge the matter with the full Court for the above purposes should be extended.

On their part the Interested Party and the Respondents have asked that we order the Applicants to provide security for costs.

Without, at this stage, in any way intending to or commenting on the merits/demerits of theapplications let us say one or two things about the applications. Firstly we notice that the joining/ substitution is for purposes of prosecuting a matter in inter alia in the ‘lower court’. We think there is a touch of impropriety about the use of the term ‘lower court’. In section 2 of the Supreme Court of Appeal Act Cap 3:02 of the Laws of Malawi lower court means ‘subordinate court’. Meaning as we understand the application that the Applicants are asking to come into proceedings which the Society had/has in the Subordinate Court. Now it is trite that there is no matter which the Society was or is prosecuting in some Subordinate Court. The question of an application for joinder or substitution cannot therefore arise.

Some would think that this application is therefore incompetent. It makes reference to non-existent proceedings. That it should therefore be dismissed. We beg to differ. To do so would be to indulge in pedantry and needless waste of resources. Specifically time and treasury seeing as all the Applicants need to do retrieve the situation would be to come back with an amended summons. The time and money lost on the aborted application would however remain lost. So granted there have not been any proceedings between the Society and the Respondents/Interested Party in any Subordinate Court. True the Applicants erred in making reference to the ‘lower court’ and therefore non-existent proceedings but we cannot fail to notice that all the parties herein were at all times aware of what the Applicants’ applications were all about. It was about the proceedings which the Society commenced in the High Court in Zomba. They could not therefore have been misled or prejudiced by the description of the High Court as the ‘lower court’ meaning subordinate court instead of the ‘court below’. While not in the very least condoning the less than appropriate description of the High Court we will let the mishap pass for what it clearly was an innocent mistake and proceed on the basis that Applicants’ applications were in relation to the proceedings in the High Court.

THE PARTIES’ CASES
They took different positions on different platforms. There are positions advanced in affidavits. Those in skeleton arguments and finally those put across viva voce. Where necessary we consider them separately.

THE APPLICANTS’
There are three affidavits sworn by Messrs Kajoloweka, Mtambo and Counsel Theu. The first two are much the same document content wise. We will therefore be wary of repeating ourselves. Beyond that we will only make reference to those parts we think pertinent in deciding the issues before us.
Mr Kajoloweka deponed that:

  1. He has keenly followed the proceedings between the Society and the Interested Party/Respondents through the media and partial perusal of the court record;
  2. YAS is an NGO duly registered under the Trustees Incorporation Act(Cap 5:03 of the Laws of Malawi) under certificate No. RG20754/M/5.2005 and under the Non-Governmental Organisations Act(Cap 5:05 of the Laws of Malawi) under certificate No. NGO/L17/050 whose mission is to promote and defend human rights and good governance in Malawi through capacity building, advocacy and research. A copy of the former certificate was exhibited as ‘YAS 1’:
  3. YAS was through him aware that the Society was ‘challenging the manner in which the respondents handled the affairs of the Salima- Lilongwe Water Project to be developed by the first respondent’;
  4. The first respondent contracted the Interested Party to implement the contract;
  5. The Interested Party commenced performance of the contract without first undertaking an Environmental Impact Assessment[EIA]; that this is the main and initial ground that the Malawi Society sought to be reviewed by the High Court;
  6. The Society sought to amend the grounds for judicial review to include the issue that the 1st respondent and the office of the Director of Public Procurement[ODPP] contravened the Public Procurement Act 2003 in awarding the contract to the Interested Party;
  7. This Court by its decision of 21st October 2017 adjudged the proceedings to be a nullity and therefore that no appeal could lie from it;
  8. He was informed by their Counsel that the above determination was only on a procedural technicality and left the substantive issues relating to serious contraventions of the Environmental Management Act and the Public Procurement Act unresolved and possible illegalities unaddressed;
  9. The Society has not to his knowledge taken any steps to further prosecute the matter by way of lodging an application for the reversal or variation or indeed setting aside of the decision of October 21, 2017;
  10.  He was informed by his Counsel that actually ‘the time within which the Society was supposed to have taken the steps in 9 above had most likely expired’ and further that he was not aware of any explanation by the Society for its failure or neglect to take the necessary steps to pursue the crucial public interest issues raised in the case before the High Court’;
  11.  He and surely members of the public generally had the legitimate expectation that the Society would pursue the substantive issues by seeking further redress from the full Court and further that the Society which ‘should know better would act within the time permitted by the rules as advised by Counsel’.
  12.  From the Society’s ‘failure or neglect’ to take the necessary steps he verily believed that that the Society has ‘either abandoned pursuit of the public interest or has suffered a chilling effect and no longer has the determination to pursue the case’.
  13.  He believed that the issues raised by the Judicial Review in Zomba are serious matters of rule of law concerning the environment and public procurement warranting a final substantive determination by the Courts;
  14. The ruling of October 20, 2017 would benefit from consideration and clarification by the full Court;
  15.  YAS has the determination and capacity to either join the Society or indeed be substituted as the new ex parte applicant to prosecute the issues raised before the Zomba High Court in line with YAS’ mission to promote and defend human rights and democratic governance through advocacy which includes litigation.

Just to say by way of correction that the date of the ruling in issue herein should be October 20, 2017 and not October 21, 2017. We think it an inconsequential error. We all know the ruling in issue and its date. No one could have been misled or prejudiced.

The affidavit of Mr Mtambo is much like that of Mr Kajoloweka. We will therefore keep away from needless repetition save to say that CHRR is an NGO duly registered under the Trustees Incorporation Act and the Non-Governmental Organisations Act certificates in respect of which were attached. Its main and broad objective is to contribute to the protection, promotion and consolidation of good governance through inter alia advocacy for the observance of the rule of law.
Like YAS CHRR deponed that:

  1. The ruling of October 20, 2017 leaves the substantive issues initially raised in the judicial review and those sought to be added unaddressed, thereby ‘nurturing impunity for the contraventions of rule of law’. It thinks it desirable that those issues are determined substantively;
  2. it had not come across any information that the Society is pursuing recourse to the full Court;
  3. in view of the fact that time for so doing has lapsed without the Society taking the necessary steps CHRR verily believes that the Society has ‘abandoned’ the case or no longer wishes to pursue it in the public interest; and
  4. CHRR therefore seeks together with YAS to be joined or be substituted as the ex parte applicant in the proceedings.

The last affidavit on this side is that of Counsel Theu. It is about the Interested Party’s application for an order for security for costs and more. Going through it there appears, with respect, to be errors which Counsel should have attended to before placing it before us. In paragraph 2 for instance Counsel depones:

‘I have conduct of this matter on behalf of the Registered Trustees of Youth and Society(YAS) and the Centre for Human Rights and Rehabilitation(CHRR), and by reason thereof I am duly authorised to make this affidavit. and as Executive Director of CHRR and am duly authorised to make this statement’. [Sic]

We are certain that the capacity in the bold words is an error. Most likely arising out of the affidavit having been constructed from some other deponent’s.

A similar error appears in paragraph 6. After the second sentence are the words:

‘have come to my knowledge in the course of my work as Executive Director of CHRR in which capacity I have been monitoring the proceedings in this matter through the media, and also from perusal of some of the court decisions that have been issued in this case culminating in the decision of the Honourable Chikopa SC, JA dated 20th October 2017. I verily believe the same to be true’.[Sic]

They also seem to have been lifted from some other affidavit.

In so far as we understand the rules of engagement leave ought to have been sought and granted before Counsel’s, and we daresay even Kajoloweka’s affidavit was placed before us. The record will show that such was not done. We are within our rights to disregard the affidavits. We will not do so. Such cannot be the best way forward. The errors emanate from deriving Counsel’s affidavit from another’s. What we understand is commonly referred to as cut and paste. We do not think however that the errors are such as to leave anyone in doubt as to what Counsel was seeking to put before us and what the Applicants’ applications are all about. They in other words are not errors to cause injustice. Or prejudice. We will therefore disregard the words in issue and proceed only on those that have a bearing on the matter before us. That, we hope, will not be taken as a condonation of the tendency to place less than perfect documentation before this indeed any other court for it is not.

About security for costs Counsel deponed that:

  1. Both YAS and CHRR are prosecuting this matter with pro bono legal services but are in the course of raising funds for running expenses and the remote eventuality that costs may be awarded against them;
  2. They are hoping to raise substantial enough sums to cater for the foregoing; and
  3. That they are not in a position to divulge the identity of their donors actual or prospective for fear of compromising their generosity;

On joinder Counsel deponed that:

  1. The Applicants had wanted to join the proceedings earlier but did not do so on legal advice;

They were told they were not going to add value to the proceedings; and

  1. The applicants were so confident in the Society’s endeavours they never imagined it would ‘abandon the public interest issues it had voluntarily undertaken to pursue in furtherance of the rule of law’.

In the skeleton arguments Counsel reiterated that the application for joinder/substitution is premised on Part 19.2 and 19.4 of the Civil Procedure Rules of 1998 and this Court’s inherent jurisdiction. The former provides as follows:


‘2. The Court may order a person to be added as a new party if-

  1. It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
  2. There is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
  3. The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings
  4. The court may order a new party to be substituted for an existing one if-
  5. The existing party’s interest or liability has passed to the new party, and
  6. It is desirable to substitute the new party so that the court can resolve the matter in dispute in the proceedings’.

While accepting that the above provisions do not necessarily cater for public law proceedings Counsel argued that Courts proceed on the basis of their inherent jurisdiction as informed by the principles underpinning Parts 19.2 and 19.4 abovementioned to order joinder/substitution. The sentiments of Underhill J in R(on the application of River Thames Society, Lady Berkeley) v First Secretary of State, Royal Borough of Kensington and Chelsea, London Borough of Hammersmith and Fulham, Circadian Ltd [2006] SJLB 1253, paragraphs 3 and 4 were cited. Mention was also made of the case of Hounslow LBC v Cumar [2013] HLR 17.

Counsel therefore contends that CHRR and YAS may substitute the Society under Part 19.2(4) on the understanding that the Society’s interest has passed to YAS and CHRR by virtue of it being a general or public interest or in the alternative that it is desirable that YAS and CHRR are brought in in place of the Society so that the Court can resolve the matters in dispute in the proceedings.

As to the reasons why YAS and CHRR should either join the proceedings or substitute the Society Counsel argues firstly that because the issues raised by the Society are in the public interest they can be raised/pursued by any other similarly interested person/party either together with the Society or alone.  YAS and CHRR are such similarly interested party. Secondly that due to the Society’s neglect or failure to resort to the full Court or abandonment of the public interest the same can/should be pursued anyone willing to do so. Thirdly that the Society having abandoned the proceedings it is desirable that YAS and CHRR are allowed to join or substitute the Society so that the substantive issues in the proceedings and all matters arising out of the ruling of October 20, 2017, including non-compliance with Order 53 rule 5(5) the Rules of the Supreme Court 1965, of are determined. Fourthly that no prejudice will be suffered by any party to the proceedings if YAS and CHRR are allowed to join the proceedings or substitute the Society. Fifth that not allowing YAS and CHRR to join or substitute the Society would be equal to the Court betraying its duty to protect and enforce the law, smiling upon serious breaches of the law and allowing escapes from judicial scrutiny on technical bases.

In the matter of the application for extension of time within which to approach the full MSCA the Applicants allege that they for good reason thought that the Society would do the needful. But because it has failed or neglected to so do it is necessary that time be extended to allow YAS and CHRR do it instead.

About security for costs we understood the Applicants to be saying the application was no more than a thinly veiled attempt at keeping them from accessing the Court. They prayed for its dismissal.
And in response to the Respondents’ and the Interested Party’s argument that the applicant did not have the necessary locus standi to take over the matter the Applicants contended that they have a general or public interest as opposed to a direct or personal interest. They referred us to the case of R v Secretary of State for Foreign and Commonwealth Affairs ex p Lord Rees Mogg [1994] QBD 552 and emphasised that the Courts now adopt an increasingly liberal approach to questions of locus standi especially in relation to general or public interest. They now look at inter alia the merits of the challenge, the importance of vindicating the rule of law, the importance of the issues raised, the likely absence of any other responsible challenger, the nature of the breach and the role played by the group or body in respect of the issues in question. See also R v Secretary for Foreign and Commonwealth Affairs ex p World Development Movement Ltd [1995] 1 WLR 386  cited with approval in Civil Liberties Committee[CILIC] v Minister of Justice & Another [2004] MLR 59 where the MSCA determined that locus standi in the general or public interest category would be decided by having regard to the following:

    1. The importance of vindicating the rule of law;
    2. The importance of the issues raised;
    3. The likely absence of any other responsible challenger;
    4. The nature of the breach of duty against which relief is sought; and
    5. The prominent role of the applicants.

Applying the above to the instant case the Applicants contend it is important that:

  1. the law relating to environment management and procurement are vindicated;
  2. the issues raised herein i.e. alleged disregard of environmental management and procurement laws/regulations are themselves important;
  3. the law and practice relating to concurrent jurisdiction between the High Court and the MSCA is clarified;
  4. it is necessary that some others in this case YAS and CHRR take over the proceedings in view of them having abandoned and/or neglected by the Society and in the absence of any other takers;
  5. Malawi does not suffer the shame of allowing a rich party to bulldoze its way through its environmental management and public procurement laws using its economic muscle; and
  6.  The Applicants are prominent champions of the rule of law as was well recognised by the Court in The State v Hon George Chaponda & Others ex parte Kajoloweka, Miscellaneous Cause Number 1 of 2017, High Court of Malawi Mzuzu Registry[unreported].

In what might be seen as some departure from the CILIC criteria but was clearly a preference for a more relaxed approach towards locus standi the Applicants adopted the sentiments of Lord Diplock in R v IRC ex parte National Federation of Self Employed and Small Businesses Ltd [1982] AC 617 to the effect that it would be a ‘grave lacuna in our law if a party such as YAS and CHRRR or any public spirited tax payer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped’. Indeed in paragraph 2.8 of their skeleton arguments the Applicants contended that locus standi as set out in CILIC v Minister of Justice & Others is outdated. They think that a preference for a stringent and pedantic approach to locus standi flies in the face of the Court’s solemn duty to adopt liberal principles of constitutional interpretation.

Viva voce the Applicants repeated much of the above. Their Counsel did however concede firstly that the High Civil Procure Rules of 2017 do not apply herein. But the Rules of the Supreme Court 1965. Secondly that while the Society would be looking for a complete stop of the contract in relation to issues to do with misprocurement it was, with respect to the EIA and the Environmental Management Act primarily interested in compliance unless the Respondents intended to proceed with the construction phase without an EIA.

THE FIRST RESPONDENT
It resists the Applicants’ applications. In furtherance thereof it adopted the affidavit of Engineer Alfonso Chikuni its Chief Executive Officer, exhibit LWB 3 and its skeleton arguments. It also addressed us viva voce.

The generality of their arguments is in four parts. Firstly that the Applicants cannot join the proceedings, secondly that the time within which to approach the full MSCA cannot be extended, thirdly that the Interested Party’s application for security for costs should be granted and fourthly that the Applicants’ applications should be dismissed with costs.

There are at least six sides to the first position. The one side is premised on Order 53 rule 5 of the Rules of the Supreme Court 1965. Under it the procedure for judicial review is first a seeking and granting of leave to proceed with judicial review and second the filing within 14 days[unless the Court specifies a different period] from the date on which leave is granted of a substantive motion for judicial review. In the instant case leave was granted on April 21, 2017. The substantive motion should have been filed by May 5, 2017. The Society only did that on September 29, 2017 without first getting leave either extending the time within which to file such motion or to file out of time. In the First Respondent’s view there were no recognisable court proceedings between the parties after May 5, 2017. There are therefore no court proceedings for the Applicants to join.

The other side has all to do with limitation periods in judicial review proceedings which in their view is three months.  The First Respondent argues that because a joining or substituting party’s case takes effect from the date of joinder or substitution it[the First Respondent] have the defence of limitation to the claims which the Applicants seek to prosecute seeing as three months have expired since the decisions complained of. We were referred to the case of Ingolosi v Mahomed [1971-72] ALR Mal 335 where Skinner CJ cited with approval the sentiments of Scrutton LJ in Mabro v Eagle Star and British Dominions Insurance Co Ltd [1932] 1 KB 485 at 487 to wit:

‘in my experience the court has always refused to allow a party or a cause of action to be added where if it were allowed the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence. If the facts show either that a particular plaintiff or the new cause of action sought to be added are barred, I am unable to understand how it is possible for the court to disregard the statute. It has been suggested that we might allow the joinder without prejudice to any defence against the claim, but I cannot see why parties should be put to an expense of allowing an action to proceed which is barred by law’.

We were also referred to Malawi Electoral Commission[MEC] v Banda & Another [2005] MLR 185 where the MSCA refused to add a party because doing so would have resulted in depriving MEC of the defence of limitation. The facts of the case are clear enough. The first respondent commenced an action by way of petition against the appellant alleging undue return or undue election of a person to the Office of the President of the Republic of Malawi by reason of irregularity. The petition was presented on May 23, 2004 which was within fourty eight hours of the declaration of the results of the election as required under section 100 of the Parliamentary and Presidential Elections Act. The second respondent Hon. John Zenus Ungapake Tembo sought to be added as a party to the action via a summons dated July 30, 2004. The appellant opposed the application raising the defence of limitation and also that it was not necessary in the circumstances of the petition that the second respondent be joined as a party to the action.

The MSCA agreed with the appellant. It refused to grant joinder. The effect would have been to deny the appellant of the defence of limitation. Further it held that the second respondent’s presence was not necessary to effectively and completely adjudicate upon and settle all questions involved in the cause or matter.

The First Respondent therefore prays that the Applicants should similarly not be allowed into the proceedings. They are not only barred by limitation but doing so would deprive the Respondents/Interested Party of the defence of limitation.

The third side is also premised on the MEC v Banda & Another. At page 192 this Court said:
‘the jurisdiction to add a litigant depends on the rule, which is that a party may only be added when it is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the cause or matter’.

In the First Respondent’s view the Applicants have not stated what it is they are bringing to the proceedings that will help resolve any outstanding issues assuming there any. It is therefore not necessary that they be joined.

The fourth side is the First Respondent’s contention that it is not necessary that the Applicants join because there is as at now no issue between the parties fit to go for judicial review. The records according to the First Respondent will show that the decisions complained of by the Society in its application for leave to commence judicial review were the:

‘failure or refusal or contumelious neglect’ ……. to comply with the legal requirements relating to the conduct of environmental impact assessment and submitting a report thereof to the competent authorities before implementing the said project’
and
‘to proceed with implementation of the Project …… before conducting an environmental impact assessment; submitting a report to the competent authorities and obtaining an approval prior to implementation of the Project’.

The First Respondent says an EIA will be carried out before the project is implemented. That in exhibit LWB 3 the steps so far taken towards the EIA have been outlined. That the construction part of the project will only commence on April 1, 2018 if all issues previously raised including those touching on the EIA have been satisfactorily resolved. In those circumstances, according to the First Respondent, there is no issue between the parties that the Applicants can take to court for judicial review. Going to court would be no more than an academic exercise. Joinder/substitution should therefore not be granted.

Fifth the First Respondent contends that the Applicants have no locus standi to take this matter to court. They have not, as was incumbent upon them, shown via their constitutional objectives that they are empowered to take environmental/procurement issues of a general or public nature like the one at hand to court. Secondly they have not shown that that the general interest which the Society had by statute and courtesy of which the High Court originally granted them permission to proceed with judicial review was transferred to them. In the alternative they have not shown that they have such interest.

Thirdly the First Respondent argues that the Applicants, on the basis of the CILIC case, clearly have no standing herein. To begin with there is no breach of law which they can pursue. The EIA will not just be done it is actually being done. The question of importance of issues does not therefore even arise. There is already compliance with the law relating to EIAs. The matter of procurement does not arise. It has never been an issue between the Society and the Respondents/Interested Party. The paperwork was never amended to include it. It cannot, it was further argued, be true that there is no challenger in case the law or best practice about EIAs is not being complied with. The Honourable the Attorney General is in that position as the Malawi Government’s principal legal advisor. And in relation to this matter he has already exhibited his commitment to ensuring not only that the law is abided by but also that all issues raised by his office are properly addressed.

Lastly the First Respondent opines that the applicants are too far away from the present issue to be allowed to join. In the CILIC case the Court thought only NGOs closely associated with the subject at hand should be accorded standing. The Applicants have not shown how they should be regarded as close enough to environmental or even procurement issues when their names talk of youth, society, relief and rehabilitation.

About the extension of time the First respondent argues there is not good enough reason why they delayed and why therefore time should be extended. That they were hoping the Society would go to the full bench is not good enough a reason to allow time to run out.

On security for costs it adopted the Interested Party’s arguments. As to costs of this application it is of the view that upon dismissal the same should be awarded to the successful Parties namely including themselves. The Applicants’ applications were clearly without merit.

THE SECOND TO FOURTH RESPONDENTS INCLUSIVE
They were represented by the Honourable the Attorney General in the person of Senior State Advocate Chisiza. They filed skeleton arguments and also addressed us viva voce. They object to the application for joinder/substitution on three grounds. Firstly that the Applicants lack locus standi.

Secondly because the Applicants do not have leave to prosecute the judicial review proceedings that were before the High Court. In the alternative because whatever leave was granted was granted to the Society and is not transferable to the Applicants or at all. Thirdly that this matter is now otiose.
On the basis of the CILIC case The Honourable the Attorney General argued that the Applicants cannot be persons who were directly affected by the alleged impugned decision[s]. More than that and going by their Executive Directors’ affidavits the Applicants’’ areas of focus are human rights and good governance. Environmental issues fall way outside their area of focus. They therefore do not have the standing to join these proceedings.

About leave The Honourable the Attorney General reiterated that one needs leave before they can commence or be part of judicial review proceedings. Also that leave once granted is not transferable. In the instant case it is the Society that was granted leave to proceed with judicial review after the court was satisfied that there was a case good enough to go for judicial review and that the Society had the locus standi to bring it. The Applicants do not have such leave. And since the Society’s leave is not transferable they cannot ride on that which was granted to the Society. They should not therefore be allowed to be part of these proceedings by joinder or substitution.

Lastly The Honourable the Attorney General argues that this matter otiose. He referred this Court to the affidavit of Senior State Advocate Apoche Itimu who previously acted herein and pointed out that upon his advice a consultant to conduct an Environmental and Social Impact Assessment[ESIA] has been identified and a Certificate of No Objection granted by the Office of the Director of Public Procurement allowing the said consultant to proceed with the ESIA. In his view the anomaly or omission complained of by the Society has been rectified. These proceedings are therefore otiose. Allowing the Applicants to join them will serve no useful purpose. The applications for joinder/substitution should therefore be dismissed with costs.

For the record The Honourable the Attorney General supports the Interested Party’s application for security for costs.

THE INTERESTED PARTY
It was represented by Mr Ishmael Wadi of Counsel, Mr Chancy Gondwe of Counsel and Mr Frank Mbeta of Counsel.

Mr Gondwe filed two affidavits. One against joinder/substitution and another in support of an application for security for costs. He also filed skeleton arguments. Mr Mbeta filed skeleton arguments against the application to extend time but did not address us. Mr Wadi addressed this Court on the skeleton arguments filed by Messrs Gondwe and Mbeta. The three Counsels took the same positions about the issues herein. For purposes of brevity but without in any way compromising on the content of their addresses we will treat them as one address.

On the matter of joining/substituting the Society the Interested Party argues that the applicants cannot be allowed so to do. They have no locus standi. It cited the CILIC case and also those of The Registered Trustees of the Women & Law(Malawi) Research & Education Trust v The Attorney General & Others Constitutional Case Number 3 of 2003 and Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493. In the former the Court said:

‘reverting to the case the Applicant Trust commenced herein, it is clear that in the absence of its having suffered a violation of its rights by the Court’s use or misuse of the legislation complained against or cried for, and in the absence of a woman who has suffered this type of disadvantage being in the driving seat of the intended public litigation, such interest as the Applicant has claimed it has for commencing this matter is all distant and remote. Suing on the basis that the Trust Deed’s objectives coincide with Women’s Rights in the Republican Constitution, and on the basis that women[not mentioned and not involved in the case] have been complaining to the Trust, and on the basis that the Trust’s research has led to the conclusion that there is a problem, is not sufficient interest in the manner the existing authorities construe that expression under section 15(2) of the Constitution. We therefore find ourselves in agreement with the observation of the Attorney General to the effect that the Applicant’s interest in the matter it has raised is hypothetical, moot or academic and that it indeed rather seeks the advisory opinion of the court than a judicial determination from it on an issue that is truly in dispute’.

In the latter the court said:
‘a person is not interested within the meaning of the rules unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage other than  a sense of some grievance or a debt of costs, if his action fails. A belief however strongly felt, that the law generally, or a particular law should be observed or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so the rule requiring special interest would be meaningless’.

According to the Interested Party the Applicants have suffered no damage. Their objectives are too vague to show they have sufficient interest as construed by the Courts. And not being NGOs connected with the environment their interests are too remote to enable them have locus standi in this matter.

Secondly and in so far as the joinder/substitution is based on Part 19.2 and 4 of CPR the Interested Party contends it should not be allowed. The cases of MEC v Aleke Banda & Another and Talib Osman t/a Cartech v The Registered Trustees of the United Democratic Front Civil Cause Number 3307 of 2007 both of which are for the principle that a party will only be added or substituted where it is necessary to enable the court to effectively and completely adjudicate upon and settle all questions in the cause or matter were cited. Also referred to were the cases of Mabro v Eagle Star and British Dominions Insurance Co Ltd cited and Ingolosi v Mahomed which are to the effect that courts are slow to grant a joinder or substitution where the effect would be to deprive the other party of the defence of limitation.

Applying the above to the instant case the Interested Party argues that there is nothing in the proceedings that can only be decided if the Applicants were about. Further any claim from the Applicants would be caught by the limitation period. Allowing them to be parties would therefore deprive it and the Respondents of the defence of limitation. Joinder/substitution should therefore not be allowed.

The Interested Party also opposes the application to extend the time within which to approach the full bench of the MSCA. At law such an application is only granted when the applicant shows good and substantial reason why they could not do the needful in time. The Applicants have not been able to show such good and substantial reason. Waiting for the Society to do the needful when you are equally capable of doing it does not amount to such.

The Interested Party is On the other hand convinced that the Applicants’ applications are so without merit and such an abuse of the court process provision should be made in relation to any costs/expenses it may incur in defending these applications. Hence the application for security for costs.

OUR CONSIDERATION OF THE FACTS, THE LAW AND THE PARTIES’ ARGUMENTS
Like we have observed above the Applicants have two applications before us. One for joinder/substitution and another for extension of time within which to approach the full MSCA with the ruling of October 20, 2017. If we may say so the applications’ ultimate aim is not to allow the Applicants to appear before the MSCA much as that is desirable. It is to go back to the High Court and proceed with the question that the Society put up for judicial review.

From the Interested Party we have an application for security for costs. We will commence with the application to join/substitute.

Joinder/Substitution
It is trite that in judicial review proceedings one first applies for leave i.e. permission to commence proceedings. Once permission is granted you then commence the proceedings by filing a substantive motion for judicial review within 14 days from the date leave is granted. Unless of course the Court granting leave has specified a time within which this should be done.

It is equally trite that in seeking leave an applicant sets out not just the decision[s] to be impugned but also enough facts about the matter so that the Court before whom the application for leave is made can decide whether the applicant has sufficient interest in the matter or not. If the Court is satisfied that you have, on the face of it, a good enough case for judicial review and also has sufficient interest it grants you the leave to so do within the time and in the manner described hereinabove.

Where for some reason the applicant cannot comply with the 14 day or other court specified period it is open to them to apply, for good and substantial reason, for an extension of the period if the period is still unexpired or, where the period has actually expired, fresh leave to commence judicial review.
In the matter of amendments and with specific reference to judicial review they must be sanctioned by the Court. The reason is obvious enough. If the amendment is to the decisions complained of the Court must decide whether there is still, the change notwithstanding, a good enough case for judicial review. Or whether the new decisions complained raise a case good enough for judicial review.

Indeed whether the applicant continues to have sufficient interest the amendments notwithstanding. If the change is to the applicant the Court should still be allowed to decide whether the new applicant has a sufficient interest in the matter to bring judicial review proceedings. We would think it natural therefore that where the paper work remains unamended the proceedings before the Court will continue to be as originally sanctioned.

Talking about applications to join/substitute it is obvious that there can only be joinder or substitution in relation to actual proceedings. That is clear from Part 19.2, 3 and 4 of the CPR itself. That is why there is spoken of in those parts of a person being added so that the Court can resolve all matters in dispute in the

proceedings, of a new party being substituted for an existing one or of a party being ordered to cease being a party to the proceedings. It all makes practical sense we think. You cannot join that which does not exist. Or never existed. The same goes for substitution. You go in as a substitute in an existing endeavour. You cannot go in as a substitute in the absence of an actual endeavour.

We are aware that the CPR in the notes to Part 19.2[in 19.2.5] makes reference to substitution after judgment and the case of Humber Boats Ltd v Owners of the Selby Paradigm [2004] EWHC 1804. There might be a temptation to think that that is a substitution without an actual endeavour. It is to think wrongly. The decision to allow joinder/substitution will still depend on whether or not there are matters in dispute the proceedings. See also Gurtner v Circuit & Another [1968] 2 QB 587 and Gulf Insurance v Creque’s Insurance Ltd Claim Number BVBVIHMT 2012/0256 before the High Court of Justice, Eastern Caribbean Supreme Court, Territory of the Virgin Islands.

Lastly, and while we will not go so far as to say that joinder/substitution of parties especially applicants in judicial review is not covered under Part 19.2, 3 and 4 of the CPR it is obvious that the considerations for so doing go beyond the resolution of any outstanding matters between the existing, incoming and exiting parties whatever the case might be. Issues of especially leave to proceed and locus standi play a prominent part. A party will therefore join or be substituted not only because there are still issues to be resolved but also because the issues are fit to go for judicial review and the party seeking joinder/substitution is sufficiently interested in them.

Applying the above debate to the instant case it is obvious that the Society put before the High Court only issues to do with EIA. That it was granted leave to proceed with judicial review on matters only to do with EIA in the manner outlined above. And this obviously because the High Court was satisfied not only that there was a case good enough to go for judicial review but also that the Society had sufficient interest in the matter. There was never before the High Court anything to do with procurement. The High Court never exercised its mind as to whether there was a good enough case on the face of it to go for judicial review vis a vis procurement. It never decided that the Society was sufficiently interested in the matter of alleged misprocurement to enable it bring judicial review proceedings in respect thereof. There was never granted in respect of the alleged misprocurement leave to commence judicial review proceedings. There has therefore never been any proceedings between the Parties herein regarding alleged misprocurement.

Can the Applicants join or substitute the Society in relation to the alleged misprocurement? The answer can only be in the negative. There never having been any proceedings between the Society and the Respondents/Interested Party about misprocurement there are no proceedings for the Applicants to join or be substituted for. Similarly there cannot be a dispute or an issue to resolve between the Applicants and the Respondents/Interested Party in so far as misprocurement is concerned. The Applicants cannot be allowed joinder/substitution to facilitate resolution of non-existent issues/disputes.

To find and order otherwise would be to proceed on the clearly untenable basis that the Society was allowed an amendment of the paperwork to include a new party and a new issue namely misprocurement and were granted leave in the manner spelt out above in respect thereof. It would also mean allowing the Applicants to commence a judicial review in the absence of leave as demanded by Order 53 RSC abovementioned. For all that has been said about court smiles, court betrayals and courts aiding escapes it appears to us that it is the Applicants are asking this Court to disregard the rules of engagement. It must never be allowed.

From a different perspective the above sentiments apply with equal force to issues to do with the EIA. The undisputed facts show that the permission to proceed with judicial review expired by close of court business on May 5, 2017. Had the Society wished to proceed they would have had to apply for fresh leave. Because they had not there were no recognisable proceedings between the Society and the Respondents/Interested Party. Can a meritorious application for joinder/substitution be allowed in those circumstances? The answer will also be in the negative. In the absence of leave and a substantial motion no proceedings commenced. There were therefore none for the Applicants to join. No issues or disputes, similarly, could have arisen. There would therefore be none to be resolved or adjudicated. There therefore can be no joinder or substitution in the present circumstances.

And still talking about leave, joinder/substitution and judicial review it necessary to must be remembered that the Applicants’ appearance before us is not about going to the full MSCA bench. It is about prosecuting, by way of judicial review, the Respondents’/Interested Party’s alleged noncompliance with environmental and procurement law’. Considering that a joining or substituting party’s claim commences on the date of joinder or substitution ‘will, at the point of joinder/substitution, the Applicants have leave to prosecute the judicial review?  

The Honourable the Attorney General contended that the Applicants should not be made a party. They have no leave to for judicial review. And will not have it anyway. It is not for this Court, being an appellate court, to grant leave for judicial review. And the Society’s leave is not transferable.

We tried to take a more understanding view of the matter. The reality however is that the Applicants do not have at this time leave to judicially review the impugned decisions. The High Court did not because they were not party to the original proceedings. This Court cannot grant them either even if we were to allow the application for joinder. Firstly they are not asking this Court for leave for judicial review. And courts are not in the business of giving people what they have not asked for. Secondly and if they had asked for it we would only have been in a position to grant them leave if only they had come by way of renewal of application for leave which they have not. Thirdly and on the obvious understanding that the Applicants want at the end of it all to go back to the High Court it is in our most considered judgment clear that the Applicants’ want of leave cannot be retrieved in this Court.

Not even in the full MSCA if joinder were allowed.

The Applicants suggested that leave is transferable. That in this case they can hitch a ride on that which was granted to the Society. It is not and cannot be. A grant of leave involves the court satisfying itself that there is enough of a case to go for judicial review and that the party seeking leave has the standing to bring the case. If one wants to join in as a party in the circumstances in which our Applicants want they cannot rely on the leave granted to the existing, exiting or exited party the Society for instance. That would, as we have said above, deny the court being asked to grant leave the opportunity to test the applicant’s bona fides. It is a flagrant disregard of Order 53 RSC. It is also a case, if ever there were one, of one getting through the back door what they cannot get via the front door. It should never be allowed much as it might sound convenient.

To wind up this part of our opinion it is clear that the Applicants do not now have leave to go for judicial review. They cannot be allowed into judicial review proceedings. They would still not have it, we will go on to say, even in the unlikely event of this Court allowing their application for joinder/substitution. Which brings us to the question whether the application for joinder/substitution should have made to this Court or at all. We think not. It does not help anyone deal with the substantive issues which our Applicants claim undecided even after the ruling of October 20, 2017.

We now come to the reasons advanced for the Applicants finding it necessary to ask for joinder/substitution. The affidavits of Mr Kajoloweka, Mr Mtambo, the Applicants’ Counsel and even the skeleton arguments described the Society as having abandoned the public interest, of being unwilling to pursue the case, of not being vigilant enough of failure and even of neglect vis a vis its not having taken the ruling of October 20, 2017 to the full bench. The allegations carry with them suggestions, however minute, of less than professional conduct. Or best practice. We are sure Messrs Mtambo and Kajoloweka have their reasons for saying the above. It worries us a little though when they do not share such reasons with us. It prevents us from determining whether or not their conclusions are well grounded. Indeed whether there is no other reason for the Society’s not approaching the full MSCA bench. In our view it is obvious they are speculating/conjecturing. In their affidavits there is no mention of how they came to the above conclusions/ allegations. There is no mention therein of them interacting with the Society as a consequence of which one might think they concluded that the Society was guilty of failure, neglect, unwillingness, abandonment and a want of vigilance. They did not even say, which one would have expected, that they formed these views from interacting with their Counsel who previously acted for the Society.

We engaged the Applicants’ Counsel about the immediately above. He informed us, not on oath, that the Society informed him that it would not proceed because it thought the matter needed ‘a more dogged approach’ which it could not provide. With the greatest respect we do not think it possible to conclude neglect, abandonment, failure, unwillingness or a want of vigilance from the phrase attributed to the Society above. Especially considering that that a party is not bound to take a matter to the next stage in case of an adverse finding. Not even to explain why it is not doing so. There is we think, a more innocuous explanation for the Society’s conduct namely that it did not find it necessary to go before full MSCA bench. There was bound to be, especially in view of the interest generated around environmental issues via the litigation, the feeling that it had done its bit. Not a surprising conclusion seeing as the Society cannot be accused of not knowing about the appearance before the full bench of the MSCA and the time within which to do so.

Is there, in the circumstances of this case, evidence that the Society is guilty of neglect, abandonment, unwillingness, failure and a want of vigilance? The answer based on the basis of the above debate is in the negative. Should therefore our Applicants be allowed joinder/substitution? Again the answer is in the negative. And the reasoning is simple enough. But for the Applicants’ belief that the allegations were well grounded they would not be talking of joinder/substitution. Now that the veracity of such allegations is in serious doubt the sought after joinder/substitution cannot be granted.

The next issue is about the limitation period. The Respondents and the Interested Party contend that because the Applicants’ claim will commence on the date of joinder/substitution it will be caught by the limitation period seeing as judicial review is supposed to be brought before the expiry of three months from the date of the decision impugned. On the other hand they argue that allowing joinder/substitution will deny the Respondents and the Interested Party the defence of limitation. 

The Applicants countered the above by putting across the transferability of leave. That as soon as it is shown that there were issues to be resolved between the incoming party and the existing ones joinder/substitution should be allowed on the back of any leave granted to the exiting or continuing party. They contend the situation would be chaotic and a tad unreasonable if fresh leave were required every time new applicants came on the scene.

We have disposed the matter of transferability of leave. It is not transferable. Otherwise we would have judicial review proceedings commencing without leave.

About limitation allow us to digress/explain just a bit. There is a debate about how to deal with judicial review. For some it is a creature of Order 53 rule 1 Rules of the Supreme Court. It should therefore be dealt in the manner provided for thereunder. Meaning that when we talk of limitation period the same is three months. See Order 53 rule 4(1).

For others it is a creature of the Statute Law(Miscellaneous Provisions) Act section 16 under which the High Court to make like orders in cases where the High Court in England is empowered to make orders of mandamus, prohibition or certiorari. As to rules of procedure sections 16(4) and 17 empowers the Honourable the Chief Justice not just to make rules but what kind. Except inter alia for the limitation period which is set as six months. The foregoing is a matter that seems to have generated interest. We do not think we should weigh in now. Except to say that we are aware for obvious reasons that herein Hon Justice Dr Kapindu was unequivocal that the applicable rules are Order 53 RSC. In the State v Malawi Communications Regulatory Authority[MACRA] ex parte Bisika Judicial Review Case Number 71 of 2017[HC][unrep] the Court thought that the newly crafted and promulgated Civil Procedure Rules of 2017 are applicable. We have also had the opportunity to peruse a paper entitled ‘Constitutionalism and Judicial Rule Making Exercise in Malawi: the Case of the Civil Procedure Rules 2017’ by Mr Raphael Kasambara SC. we would throw in our lot with Justice Kapindu. Hopefully an opportunity shall avail itself where this matter can be settled once and for all. For purposes of this matter, and for the avoidance of doubt, the limitation period is six months.

In the instant case joinder/substitution if allowed means the Applicants’ case will take effect from the date of joinder/substitution. However way we look at it that will be over six months from the date of the decision complained of[the contract is dated December 9, 2016]. It is obvious that if joinder/substitution were allowed the Applicants would indeed circumvent both the leave process, the limitation period while at the same time denying the Respondents and the Interested Party the chance to plead the defence of limitation. The Courts do not grant joinder or substitution in such instances. See the cases of MEC v Aleke Banda & Another, Ingolosi v Mahomed and Mabro v Eagle Star and British Dominions Insurance Co ltd cited above. We do not see any reason to conduct ourselves any differently.

Coming to the application of Part 19.2 and 19.4 of the CPR 1998 joinder or substitution will only be allowed if that will enable the Court resolve all matters in dispute in the proceedings. In MEC v Aleke Banda & Another the MSCA said at page 192 that ‘the jurisdiction of the court to add a litigant depends on the rule, which is that a party may only be added when it is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the cause or matter’. See also Talib Osman t/a Cartech v The Registered Trustees of the United Democratic Front.

The questions in the instant application therefore is whether or not there is still an issue or issues requiring resolution and secondly such issue/issues can only be resolved if the Applicants are added to these proceedings.

The Applicants answered the question in the positive. They spoke of the matters involving the EIA and misprocurement being outstanding. Of how if these issues are not addressed impunity towards the law would be encouraged. Of how matters arising out of the ruling of October 20, 2017 need to be clarified. They also indicated a lack of trust in The Honourable the Attorney General. They believe he is conflicted. They also do not want the EIA to be done in circumstances where the contract has already commenced and it turns out to be a fait accompli.

The Respondents and the Interested Party have contrary views on this. They think there is nothing to take to Court now that the Respondnets and the Interested Party are agreed that an EIA will be done, that a Consultant has already been engaged in that regard and is on the job and finally that the Honourable the Attorney General is on hand to ensure that the law and best practice is complied with and is so far not complaining.

On our part it is well to remember that the matters that were before the High Court were all in respect of the EIA. There was and is nothing about an alleged misprocurement. The Society was concerned that the contract would proceed without an EIA being first conducted. In the course of hearing this application Counsel for the Applicants confirmed that their[the Society’s and now the Applicants’] major interest was in ensuring compliance with the Environmental Management Act. It is now common knowledge that the Respondents and the Interested Party are all agreed that an EIA will be conducted before the construction stage of the contract commences in April 2018. That construction work will not start unless and until all matters related to the EIA have been resolved. A consultant has already been identified and is effectively on the ground. Affidavits have even been sworn to that effect. The Honourable the Attorney General, who first flagged the importance inter alia the EIA, held meetings with the First Respondent about righting whatever irregularities were identified and agreed on a work plan with the First Respondent to deal with such issues, has indicated that he is content with the manner in which all areas of concern including the EIA are being handled. What, if we may ask, will be the business of the Court if the Applicants were allowed to take it back to Court? Will it be deciding whether or not an EIA is necessary? Or whether or not to engage an EIA consultant?

Will it be to agree on the area over which the EIA will be conducted once the engineering part of the Contract is over? It appears to us that all of the above have either been attended to, are being attended to or will be attended to. So that in so far as the EIA is concerned there is really nothing to put before the Court for judicial review. As the Honourable the Attorney General put it whatever issue was there is now otiose. Joinder or substitution is not necessary.

True the Applicants set out questions which they want the Court to respond to in judicial review. With respect they lean towards being moot. Seeking the opinion of the Court rather than resolving real disputes. It could that there is not too much that is wrong with the immediately foregoing. Except that we remember sitting in the case of Sauti Phiri v Privatisation Commission where the Court said it not in the nature of Courts to provide opinions on the law which Counsel can then pass on to their clients. It appears the Applicants are desirous of such opinion. While it is flattering/heartening to learn that the Applicants think the Courts capable of providing such opinions we are sure they are capable of being had from elsewhere.

On suggestions that the Honourable the Attorney General lacks sufficient impartiality or that he is conflicted we will say[over and above what we have said hereinbefore] that it is one thing to allege and quite another to prove. The Applicants have not in our view gone beyond allegation. It must be remembered that it is The Honourable the Attorney General who raised some of the issues which the Society took up and which the Appellants now want to inherit. It is him who mapped the way forward on how these were to be righted. There was no mention then of conflict of interest. Of a want of impartiality. It seems unfair to say the least that he should now be branded impartial and conflicted merely because he is expressing a view different from that of the Applicants.

Locus Standi
The question is whether the applicants have the necessary locus standi to join the proceedings or to substitute the Society. Both parties based their argument on the CILIC case. Just that they each put a different spin to it.

The Applicants had a two pronged approach. First is the argument that CILIC represents an outdated, technical, stringent and pedantic view of locus standi. They think we take a more liberal and progressive approach. If we do that we will come to the conclusion that the Applicants have the necessary locus standi. Second s the contention that we would still find that the Applicants have locus standi even if we applied the CILIC case as it stands.

The Respondents and the Interested Party think the applicable law is the CILIC case. And that applying that case the Applicants have no locus standi.

On our part there should indeed there is a difference between stating and applying the law as it is and as it ought to be. Indulging in a bit of judicial activism for lack of better terminology. In so far as the law of locus standi is concerned the same is as set out in the CILIC case. The Applicants themselves were magnanimous enough to accept that. When they are ask this Court to conclude that the Applicants have locus standi even using the CILIC principles they are asking us to decide on the basis of the law as it is. When they however ask us to come to the same conclusion by disregarding the CILIC principles because the same are ‘outdated, technical, stringent and pedantic’ they are asking us to indulge in a touch of judicial activism. We have never shied away from the occasional act of judicial activism. We believe however that judicial activism is one thing. Wanton disregard of settled legal principle quite another. In this case the law is settled. And we are very much aware of the MSCA’s sentiments about precedent as stated in the CILIC case.

On the law as it is the Applicants urged us to find that they have locus standi by virtue of being generally or publicly interested in the matter within its constitutional objectives. That they should therefore be allowed to pick up the baton now that the Society has ‘abandoned’ the matter.
On the point raised by the Respondents/Interested Party whether this Court can conclude congruency between the issues herein and the Applicants’ constitutional mandate when we have not had sight of the said Constitution the Applicants responded by arguing that if proof were indeed required of the Applicants’ constitutional mandate people should have had recourse to the Registrar General’s office which is the custodian of the constitution[a public document] or could have asked the Applicants to supply them. For now the Applicants feel it sufficient that we should rely on the affidavits sworn by Messrs Mtambo/Kajoloweka about the Applicants’ objectives and constitution. We were also asked to peruse the case of The State v Hon George Chaponda & Others ex parte Kajoloweka Miscellaneous Cause Number 1 of 2017, High Court of Malawi Mzuzu Registry[unreported] which acknowledged YAS as a high profile human rights defender.

We will be brief. It is the Applicants who made statements about their objectives and constitutional provisions. They were alleging a positive fact namely that they are allowed by their respective constitutions/objectives to pick up the proceedings herein. The rules of engagement in civil litigation require that those that allege should prove. They do not in our considered judgment do that by permitting those that allege to ask the other side[in this case including the Court] to go look for proof at some public office or by saying ‘but you should have asked me to bring the proof!’. About Chaponda’s case care should be exercised we think. First the case only involved YAS. Whatever it said should not be allowed to extend to CHRR. Secondly it is obvious that the case did not grant YAS a blanket recognition that they have locus standi in all cases to do with human rights. The locus standi was exclusive to that case.  In any other case[s] must prove their bona fides. In this case the Applicants should have done more to prove that their endeavours herein are within their constitutional space.

On whether on the basis of the CILIC case the Applicants have locus standi the starting point has to be their own admission that they do not have a personal/private interest in this matter. That their rights were never infringed. They are claiming a general or public interest. Five issues must be taken into consideration before a body/institution is allowed locus to champion rights before the Courts on the basis of a public or general interest. These are the importance of the issue; the importance of vindicating the rule of law; the likely absence of any other responsible challenger; the nature of the breach of duty against which relief is sought and the prominence of the applicants.

We have above gone through the parties’ arguments on these five issues.  We have no doubt that it is important that our environmental management laws are vindicated. It is equally true that the issues raised by the Society and now sought to be championed by the Applicants are important. We also have no doubt however that important as they are the said issues were already vindicated. They are otiose. The Honourable the Attorney General raised them. The Respondents/Interested Party agreed to take them into consideration in their journey forward. A plan was drawn to implement them and is being implemented. And no less a personage than The Honourable the Attorney General himself has expressed satisfaction with the fashion in which the issues he raised are being handled to the extent that he now says this litigation about them is unnecessary. We will go further. We are sure that any sufficiently capacitated and interested person/institution[including the second, third and fourth Respondents] can pick up the matter again if going forward there is noncompliance with the law or best practice. There is therefore no basis for suspicioning that any EIA will be a fait accompli or not properly done. Or for concluding that the rule of law issues originally raised by the Society need these proceedings to be vindicated.

The Applicants spoke about the prominence as human rights defenders. They referred us to the Chaponda case. That is then. They needed to prove they are a relevant player in this case as well. And we have no doubt they did not. For all their professed good intentions it is clear in our thinking that the Applicants do not, in terms of the CILIC case, have the locus standi in this matter. Joinder/substitution is denied.

Extension of Time
The Applicants seek an extension of time within which to approach the full bench. With respect we think such an application can only be made by one who is a party to the proceedings that require to be taken to the full bench of the MSCA. If you are not a party you have nothing to take to the full bench. You would not even have a standing. Any application in that regard is, with the greatest respect, if not premature then certainly presumptive.

True it might be argued that this is to cater for an eventuality where time for applying to go to the full bench runs out while one was up and about seeking for joinder/substitution. The solution is still not to make the application before you are made a. It is to make it on joinder or substitution and while using the time spent on the application as the good and substantial reason for the delay.
But even if the application were properly before us we doubt whether we would have granted it. On the facts the Applicants delayed because they hoped the Society would do the needful. They were aware that time was running out. They were aware even as time continued running out that the Society was not doing the needful yet they sat back. Any reasonable person would have conducted themselves differently to guard against the very evil the Applicants are complaining about. That they did as did is a sure sign of an inexcusable want of vigilance. We doubt whether the courts should come in to help. It does not seem to us to be a good enough reason for extending time.

Security for Costs
This application should have been brought as a preliminary issue or after the Applicants were allowed in as parties to these proceedings. It scores on neither point. This application is premature. It is dismissed.

CONCLUSION
From the Applicants’ side the applications were that they be allowed to join the proceedings or come in as substitutes in place of the Society. Both applications will not be granted. At the time of making the application whatever proceedings had existed between the Society and the Respondnets/Interested Party had ceased to exist. Leave had expired. And had not been renewed.

The Applicants could not join or be substituted in relation to proceedings that had ceased to exist.
Further it is obvious that the any claim from the Applicants would be caught by the limitation period and the facts that the Applicants did not have leave to proceed with judicial review and or the requisite locus standi to bring the issues in question before Court.

In the matter of the alleged misprocurement there had never been a matter of that nature between the Society, the Respondents and the Interested Parties. Again The Applicants cannot not join or be substituted in relation to non-existent proceedings.

The application for extension of time will also not be granted. The Applicants have no standing to bring the application. They are not yet a party to the proceedings in respect of whom the order was sought. And they did not a good enough reason on the basis of which the extension could be granted.

The application for security for costs is also not granted. It was mostly premature.

COSTS
The Applicants had indicated that they were prosecuting this matter using pro bono legal services. Whichever way this matter went they were not therefore going to ask for costs. They believe that this is a proper case in which each party should pay its own costs.

The Respondents and the Interested Party disagree. Such was the hopelessness of the Applicants’ applications they are strongly of the view that they should be awarded costs. The First Respondent cited the case of R v Lord Chancellor ex parte Child Poverty Action Group [1998] 2 ALL ER 755 where the Court concluded:

‘in public interest challenge cases, the starting point as regards costs had to be the rule encapsulated in RSC Ord 62 r3(3) that costs followed the event, since the parties to such proceedings and the litigation were still adverse, and the rule ensured that the assets of the successful party were not depleted by having to go to court to meet a claim by an unsuccessful party’.

The bottom line is that costs are in the discretion of the Court. In the instant case the question before us is what kind of order for costs should we make. In considering the order we cannot fail to recognise the facts that the Applicants had a chance to join these proceedings in the High Court. They did not. They had a chance to do so when they first came to us. They did not do so. They knew that judicial review proceedings required leave of court which they did not have. They knew that that which had been granted to the Society had lapsed by close of court business on May 5, 2017. They were aware that the proceedings between the Society and the Respondnets/Interested Party had never been amended. That in so far as the substantive issues had not been adjudicated upon they should have known that joinder/substitution was not necessary.

They were aware of the Honourable the Attorney General’s views about the issues originally in dispute. They could have sat back, monitored the situation and came in only when there was evidence of new instances of decisions they could impugn. They could have bided their time and in good time decided whether the construction phase of the Project would only commence after the EIA and all issues about it had been attended to.

But no they did none of the above. They thought it fit to seek to join proceedings that had clearly ceased to exist. When it should have been obvious that they were skating on thin ice on locus. It is our most considered view that the Interested Party and Respondents are in those circumstances entitled to their costs. True there was an application from the Interested Party, which all Respondents supported, for security for costs which was dismissed. It is a point that goes to quantum of costs as opposed to whether or not costs should be awarded. Accordingly the Respondents/Interested Party will have 80% their taxed or agreed costs herein whichever shall be applicable.


Dated at Blantyre this 22nd day of December, 2017.   

 

L P CHIKOPA SC
JUSTICE OF APPEAL

 

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