• June 27, 2022 6:25 pm

HIGH COURT SITTING AS CONSTITUTIONAL COURT WHIPS DPP

Nov 27, 2021

By Malawi Exclusive

Five Judges sitting as Constitutional court in Blantyre have dismissed with costs a case of DPP versus the AG in which the later needed court to interpretate section 75. 

The court has dismissed the case with cost describing it as abuse of court process. 

The panel of five High Court Judges: Hon. Justice S.A Kalembera, Hon. Justice R. Mbvundula, Hon. Justice D. nyaKaunda Kamanga, Hon. Justice A. Mtalimanja and Hon. Justice T. R. Ligowe said they have no time to hear a such trivial case.

Below is the summary of Findings

1. This case of Democratic Progressive Party v The Attorney General (on behalf of the Office of the President of the Republic of Malawi) is a Constitutional Referral from the High Court, Principal Registry, Civil Cause No. 230 of 2021. The panel of five High Court Judges: Hon. Justice S.A Kalembera, Hon. Justice R. Mbvundula, Hon. Justice D. nyaKaunda Kamanga, Hon. Justice A. Mtalimanja and Hon. Justice T. R. Ligowe presided over the matter. Prior to determining the constitutional questions under the Referral, the Defendant raised preliminary issues. During the course of the hearing, the Claimant in turn raised one additional preliminary objection. The Court dealt with the said preliminary issues at length and made determinations in regard to each one of them. The ruling was delivered on 26th November 2021. This is a 

summary of the findings on those preliminary objections. 

Issue 1: Whether the Attorney General must take an oath of office in order to have standing in court.

2. The finding of the Court is that the framers of the Constitution did not intend for the Attorney general to take an oath of office. The Court findsthat the Attorney General was properly before the Court. Consequently, the Court dismissed this preliminary objection.

Issue 2: Whether the High Court has jurisdiction to overturn or review its own 

decision, whether a High Court judgment can constitute a cause of action, and 

whether the present proceedings are aimed at reviewing or appealing against a 

decision of the High Court on similar issues.

a. Effect of certification 

3. The Claimant advanced the view that the certification rendered it mandatory for the Court to proceed with the determination of the questions in the Referral and to disregard the preliminary 

issues. Having found that the certification was made subject to the Referral and that Order 16 

rule 6 of the CPR allows a court to consider preliminary issues, the Court concluded that the 

said preliminary issues were rightly before the Court and the Court was within its legal mandate 

in entertaining them. The certification does not have the effect alleged by the Claimant and the

dismissed what the Claimant advanced herein. 

b. Whether this matter is an appeal 

4. The Court having established that the issues in these proceedings are the same as those in 

Malawi Congress Party v The President of the Republic of Malawi which was decided by the 

High Court, Lilongwe District Registry. Therefore, this was an appeal in disguise and this 

Court has no jurisdiction to entertain it. Consequently, the Court upheld this preliminary 

objection.

b. Whether this matter is res judicata

5. The finding is in the affirmative as the three prerequisite elements establishing res judicata

(re-litigation) namely, existence of a final judgment, identity of parties and identity of subject matter obtain in this matter. Consequently, the Court upheld this preliminary objection.

d. Whether or not this court is functus officio

6. The concept of functus officio is inapplicable in the present case for the reason that it was not 

this Court which rendered the judgment in Malawi Congress Party v The President of the 

Republic of Malawi, which was registered as Judicial Review Cause no. 34 of 2020 and heard 

at the High Court Lilongwe Registry. Consequently, the Court dismissed this preliminary 

objection. But the matter is still caught by res judicata.

e. Whether or not the judgment in Malawi Congress Party v The President of the 

Republic of Malawi constitutes a cause of action 

7. The Defendant argued that these proceedings were incompetent because the Claimant was 

relying on the judgment in Malawi Congress Party v The President of the Republic of Malawi

as its cause of action. The Court having established that the judgment does not constitute a 

cause of action. Consequently, the Court upheld this preliminary objection.

Issue 3: Whether the present proceedings should have been commenced by way of 

petition as opposed to summons.

8. The Court rejected the Defendant’s assertion that this is an election matter which should have 

been commenced by way of petition. The reason is that the three factors that must obtain in an 

election petition have not been satisfied, in that (i) the complaint did not arise “due to an act or 

omission during an election,” (ii) the Claimant had no right to be elected at an election and (iii) 

the Claimant was not a candidate at such election. The dismissed this preliminary objection. 

Notwithstanding the Court’s position on this issue, the Court has maintained its finding that 

this action is an appeal in disguise and/or an attempt by the Claimant to have a second bite at 

the cherry.

Issue 4: Whether or not the present proceedings are statute barred under section 100 

of the PPEA, having been commenced more than seven days from the declaration of 

the result of the election.

9. Having established that these proceedings do not constitute an election matter the limitation 

period of seven days under section 100 of the PPEA does not apply. The Defendant’s 

preliminary objection was accordingly dismissed.

Issue 5: Whether a political party has locus standi to challenge the results of an 

election and whether the Defendant is a proper party to the present proceedings.

b. locus standi of the Claimant

10. Having established that this present action is an appeal in disguise and/or a re-litigation of the 

issues, the finding is that the Claimant lacks standing to approach the Court in the manner it 

has done by commencing fresh proceedings. The Court therefore dismissed this preliminary 

issue on that premise. 

b. 

status of the Defendant as a party

11. The Claimant commenced these proceedings against “The Attorney General (on behalf of the 

‘Office of the President of the Republic of Malawi’)”. The Court’s finding is that there exists no juristic person known as the ‘Office of the President of the Republic of Malawi’. Whilst the Attorney General can be sued on account of the actions or omissions of the Government or a public officer, he is not sued in abstract. Since the ‘Office of the President of the Republic of 

Malawi’ is not a legal person, the Attorney General has been sued in abstract and is therefore 
a wrong party. The action is futile and the Court upheld the preliminary objection on this issue.

12. Notwithstanding the Court’s position on this issue, the Court maintained the finding that this action is an appeal in disguise.

Issue 6: Whether non-compliance with section 4 of the Civil Procedure (Suits by or 
against the Government or Public Officers) Act is fatal to the proceedings commenced 
against the Attorney General and whether the present proceedings can be dismissed 
for failing to comply with section 4 of the said Act.

13. The finding that the requirement for the section 4 notice requirement of 3 months cannot be dispensed with for the reason that these proceedings were commenced by a summons under 

Order 5 of the CPR. The Court upheld the preliminary objection on this issue.

Issue 7: Whether the Claimant having deliberately contravened the law in 

recommending the appointment into the Commission, more than three nominees, 

should be allowed to benefit from its own illegality and whether it should be estopped 

from challenging the decisions of the members of the Commission who were 

appointed into the Commission in contravention of section 4 of the Electoral 

Commission Act.

Issue 8: Alternatively, whether the present proceedings seek to benefit the Claimant 

from its own unlawful and illegal act.

14. These two issues were addressed simultaneously. The Court in Malawi Congress Party v The 

President of the Republic of Malawi specifically held that the conduct of the Claimant in 

nominating more than three names and the appointment of more than three Commissioners 

representing the Claimant to the Sixth Cohort of the Commission were illegal. The finding is

that the principle relief sought by the Claimant, namely, nullification of the results of the FPE 

2020 and the subsequent Parliamentary and Local Government by-elections, if granted, would 

have the effect of benefiting the Claimant from its own illegality, in that the status quo would 

revert to the pre-FPE 2020 political set up. The preliminary objection is upheld. 

Issue 9: Whether or not the present proceedings are frivolous, vexatious and an abuse 

of the court process and a waste of the Court’s time.

15. Having found that these proceedings are an appeal in disguise or an attempt to re-litigate the 

issues in Malawi Congress Party v The President of the Republic of Malawi which are caught 

by the doctrine of res judicata, the Court concluded that the present proceedings are frivolous, 

vexatious and an abuse of the process of the court. The preliminary objection was upheld. 

Issue 10: Whether or not the courts are there to offer gratuitous constitutional or 

legislative interpretation.

16. Under section 9 of the Constitution the Judiciary has the responsibility of interpreting the law

within the context and framework of legally relevant facts and final settlement of legal 

disputes. The issues raised in this matter were dealt with to finality in the case of Malawi 

Congress Party v The President of the Republic of Malawi. The Claimant accepted both the 

rescission letter and the judgment in Malawi Congress Party v The President of the Republic 

of Malawi. This implies that there is no dispute for this Court to determine and that the Claimant merely seeks the Court’s advisory opinion. The finding is that the present matter is not within the jurisdiction and competence of this court. The preliminary objection was upheld.

Issue 11: Whether or not the matters herein are moot or academic.

17. Having established that no cause of action has arisen and that the Claimant has not shown that any dispute has been triggered and that the Claimant only seeks this Court’s advisory opinion, the Court concluded that the present matter is moot, hypothetical and academic. The 
preliminary objection is upheld.

Issue 12: Forum Shopping

18. Before making the final pronouncement the Court shared its observations on the malpractice of forum shopping, also known as judicial tourism, which the Court observed that it happened in this case. 

ORDERS

19. In consequence of the foregoing findings the Court had made the following orders: 

c. The action is struck out in its entirety on account of, inter alia:

i. the proceedings being an appeal in disguise;

ii. the proceedings being res judicata;

iii. the judgment relied upon not constituting a cause of action;

iv. a non-existent party being sued;

v. the Claimant’s failure to comply with the notice requirement under section 

4 of the Civil Procedure (Suits by or against the Government or Public 

Officers) Act;

vi. the Claimant being precluded from benefitting from its own illegality; and 

vii. the proceedings being frivolous, vexatious and an abuse of the court process.

d. The Claimant’s action having been struck out the Claimant is condemned in the Attorney General’s costs.

NOTE: 

The is a summary of the ruling on the preliminary objections in the above case the perfected judgement will be available on Tuesday next week. 

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