Attorney General v Malewezi (Civil Cause No. 370 of 2004) (370 of 2004) [2004] MWHC 8 (17 March 2004);





THE ATTORNEY GENERAL...............................................................PLAINTIFF

- And -


CORAM          Twea, J
Chokotho, of Counsel for the Plaintiff
Nkhono, of Counsel for the Defendant
Fatchi, Official Interpreter

This action was began by originating summons issued on 13th February, 2004, at the High Court , Principal Registry in Blantyre, by the Attorney General against right Honourable Justice Chimera Malewezi the first Vice President of the Republic of Malawi.

On 2nd March, 2004, the Attorney General appointed Mr. Kalekeni Kaphale of Counsel of the firm Messrs Kalekeni Kaphale to work on the case with this officer from his Chambers.

On  4th March, 2004 Mr. Kaphale of Counsel filed a summons for abridgment  of time under Order 3 Rule 5 of the rules of the Supreme Court.  This summons was accompanied by his affidavit and was returnable on 10th March, 2004 on 8th March, 2004, Mr. Mbendera of Counsel of the firm Mbendera, Chibambo and Associates filed a Notice of Motion to strike out the plaintiffs and dismiss the proceedings.  This Notice of Motion is returnable on 25th March next.  On the 9th March, 2004.  Mr. Mbendera of Counsel filed an affidavit in opposition to the summon for abridgment of time.  This was served on Messrs Kalekeni Kaphale on 10th March the date appointed for the hearing of the summons.

The matter was called before the Judge in Chambers on 10th March, 2004.  No hearing took place.  The proceedings were adjourned on account that Counsel who appeared for the Attorney General did not have authority to represent him.

The matter was adjourned by notice and called on 16th March, 2004.

The affidavit in support of the summons for abridgment of time was promised on the issues in the originating summons.  The issues raised were whether a vacancy had arisen in the Office of the First Vice President when the defendant went on leave or whether he had resign by conduct or by implication, the President wish that the first Vice President should remain in office to assist him in the running of the Presidential  office and the Attorney General’s advise that there was need to have an active First Vice President while the country was preparing for General elections.  In supporting the prayer for abridgment the Attorney General averred that it was very important and in the national interest that the matter be disposed of expeditiously, that the issue fell with narrow parameters that could be easily dealt with by the defendant and lastly that to dispose of this matter after general elections would only serve academic interest.
The defendant apposed his summons.  It was averred for the defendant that the time table was unrealistic, that he contemplates to bring a counter-claim within Or. 28 r. 7 of the rules of Supreme Court, that there was an outstanding application returnable by 25th March next, that the constitutional nature of the matter should not be overshadowed by political expedience, that the President has not called on the First Vice President to terminate his leave if exigencies of duty so require and that the second Vice President was able to discharge the duties of the defendant.  The other issues raised in the affidavit merely buttress the arguments on what Government or party politics business.  I need not dwell on such issues specifically now.

I have heard both parties in their submissions.  My duty now is to decide whether or not to grant the abridgment sought.  I have examined the documents exhibited to the affidavits herein and most I can say is that there is a real problem in separating matters of State, matters of Government and matters of Party Politics.  I will refrain from making any further comment on this issue save to say that some of the misunderstandings are deliberate while others are genuinely misunderstandings.

The summons in issue was brought under Order 3 rule 5 and particularly sub-rule 2 which deals with abridgment of time.  This rule says:

“There is the same power under the rule to abridge as to extend time, and where necessary to avoid an injustice time will be abridges: but such orders are rare, except by consent, and, in practice almost limited to leave to serve short notice of certain urgent proceedings where no injustice would thereby be caused to the other party.”

The defendant argued that this summons was wrongly brought under Order 3 rule 5 which is of general application.  It should have been brought under Order 28 which applies specifically to originating summons.  It was submitted however, that if the court were to consider the summons generally there the plaintiff has failed to what injustice would be fall them, or who, in any case, would be the victims of such injustice.  It was hypothesized that, if the victims would be the people of Malawi generally, it would not suffice as it must be shown that such people have particular interest in the issues, as was decided in the case of The President of Malawi and Speaker of National Assembly vs R.B. Kachere and Others Civ. Appeal MSCA, 20 of 1995.

The plaintiff on the other hand argued that there is no requirement to aver or show the injustice specifically.  It will be at the discretion of the court to decide that there is an injustice.  There was no strong argument on the part of the plaintiff on the matter having been brought under Order 28.

It was ably argued by the defendant that Order 28 was the proper order under which this summons should have been brought.  Order 28 rule 2 envisages two kinds of originating summonses; those that comply with Form 8 of Appendix A: to which class the present summons belongs, and those that comply with Form 10 of the Appendix A.  The difference is that the former does not prescribe abridgment what the latter does.  It was argued that the plaintiff should have been aware of the procedure that they adopted to bring the action and its consequencies.  They relied on the dictum of Tambala, J.A. inJ.Z.U. Tembo and Kate Kainja vs The Speaker of the National Assembly M.S.C.A. Civ.App. IA of 2003 which was cited with approval inThe Anti Corruption Bureau vs Amos Chinkhadze and Jere Kantema M.S.C.A. Civ. App. 1A of 2003, that the decision of who to she and, therefore, how to sue, is a decision of the party after careful consideration.  It is never the duty of the court to chose for a court who to sue. And, therefore, how to sue.

I have examined the present summons and I agree that it is conformably with a Form 8 originating summons where abridgment is not envisaged.  If any abridgment is to be considered then it must be under the general provision in Order 3 rule 5 sub-rule 2.

I have examined the plaintiffs affidavits and arguments and I am of the view that no injustice is shown that the Government or any person will suffer by the First Vice President taking leave.  I bear in mind that it is in evidence that he is entitled to 30 days leave each year and he has been accumulated the leave days in his 10 year term of office.  So, he is entitled to leave days.  I have no doubt that this could cause inconvenience, more so during election year and time, but I do not find that it amounts to an injustice for the purposes of Order 3 rule 5 sub-rule 2.  I would therefore dismiss the summons for this reason. 

However, the matter does not end there.  I have carefully considered the affidavits in support and in opposition and there arguments.  The plaintiff argued that issues raised pertaining to politics are irrelevant and averred that the matters can heard quickly.   One would agree with this position if one were at the Constitution only.  Unfortunately however, multi party democratic Governments are premised of multiple political opinion that include party politics, Government position and State interest.  There as I said earlier can be genuinely misunderstood.  What has happened in this country is not a common occurrence.  It is fundamental that the constitutional position be ascertained to guide the country in the future.  The decision of the courts on the constitutional position of what has happened cannot and will not be academic.  The politics of our country are and will always be relevant to the citizens and well being of the nation.  It makes no difference where one likes politics or not.  We live in one country and what goes on affects everyone, negatively or positively.  For this reason I would have dismiss the summons to abridge the time.  Issues must be dealt with, and dealt with to the full.

It is my ruling therefore this application must fail with costs to the defendant.

Pronounced in Chambers this 17th day of March, 2004 at Blantyre.

  E. B. Twea