IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

CIVIL
CAUSE NO 280 OF 2006

IN
THE MATTER OF SECTION 16(2) RULE 2(2) OF THE STATUTE LAW
(MISCELLANEOUS PROVISIONS) CAP. 5:01 OF THE LAWS OF MALAWI

AND
IN THE MATTER OF

GEORGE
AKIDU…………………………1^ST
APPLICANT

ESTHER
KAJAWA …………………………..2^ND
APPLICANT

-and-

THE
ATTORNEY GENERAL ……………..RESPONDENT

(THE
INSPECTOR GENERAL OF POLICE)

CORAM : HON.
JUSTICE A.K.C. NYIRENDA

Mwangwela;
Counsel for the Plaintiff

Nakweya;
Court Interpreter

R
U L I N G

HON.
JUSTICE A.K.C. NYIRENDA

This
application is said to seek directions by this court pursuant to the
provisions of Section 16(2) of the Statute Law (Miscellaneous

Provisions) Act Cap. 5:01 as read with Rule 2(2) of The Statute Law
(Miscellaneous Provisions) Direction Rules.

The
affidavit in support of the application shows that what the applicant
seeks in the substantive action is to compel his employer,
the Malawi
Police, to unit the applicants at one station because they are now
married to each other. Both applicants are said
to work for the
Malawi Police.

I
must confess I am quite clear as to the directions that counsel seeks
from this court by this preliminary application. To me
the action
that counsel seeks to take up against the Malawi Police can be
commenced by way of so many possible procedures. I
will not be the
one to direct counsel as to what would be the appropriate procedure
save to say if the action be wrongly brought
it shall surely be shot
down for irregularity.

As
regards the provisions upon which the present application is brought,
counsel is clearly misdirected. Section 16(2) above
provides as
follows:

Section 16(2) In any
case in which the High Court in England is, by virtue of section 7 of
the Administration of Justice (Miscellaneous
Provisions, Act, 1938,
of the United Kingdom empowered to make an order of mandamus,
prohibition of certiorari, the High Court
shall have power to make a
like order.

As
for Rule 2 above it is important to cite the whole Rule because Rule
2(2) would not make sense without Rule 2(1). The Rule
states:

(1) An application for a
direction under section 16(6)(a) of the Statute Law (Miscellaneous
Provisions) Act must be made to a Judge
in Chambers.

(2) An application for
such direction may be made ex-parte and, subject to subrule (3), must
be supported by an affidavit by the
person restrained, showing that
it is made at his instance and setting out the nature of the
restraint.

The
directions to be sought under this Rule are therefore those that
relate to matters under Section 16(6)(a). The matters under
Section
16(6)(a) are as follows; to cite the whole provisions for clarity:

Section 16(6)(a) The
High Court may whenever it thinks fit direct –

1. 
   that any person within
   the limits of Malawi be brought up before the court to be dealt with
   according to law;

   
   

2. 
   that any person
   illegally or improperly detained in public or private custody within
   such limits be set at liberty;

   
   

3. 
   that any prisoner
   detained in any prison situate within such limits be brought before
   the Court to be there examined as a witness
   in any matter pending or
   to be inquired into in such Court;

   
   

4. 
   that any prisoner
   detained as aforesaid be brought before a court-martial or any
   commissioners acting under the authority of any
   written law for
   trial or to be examined touching any matter pending before such
   court-martial or commissioners respectively;

   
   

5. 
   that any prisoner
   within such limits be removed from one custody to another for the
   purpose of the trial; and

   
   

5. 
   that the body of
   defendant within such limits be brought in on a return of cepi
   corpus to a writ of attachment.

   
   

On
a clear reading of these provision the applicant’s application is
misconceived. It seems to me like I have observed earlier
the
applicants are coming to court for assistance on directions about how
to conduct their matter. That is not for this court
in the nature
of this matter.

In
all the application is dismissed.

MADE
in Chambers this 22^nd
day of March 2006.

A.K.C.
Nyirenda

J U D G E