S v Malawi Bureau of Standards and Another Ex-Parte Polypack Limited and Another (Ruling) (Judicial Review Cause No. 67 of 2015) [2017] MWHC 19 (04 January 2017);

JUDICIAL REVIEW CAUSE NO. 67 OF 2015

THE STATE

AND

THE MALAWI BUREAU OF STANDARDS ................ 1ST RESPONDENT

MINISTER OF LOCAL GOVERNMENT ................... 2ND RESPONDENT

EX-PARTE:

POLYPACK LIMITED .............................................. 1ST APPLICANT

ARKAY PLASTICKS LI MITED ................................. 2ND APPLICANT

CORAM: HON. JUSTICE R. MBVUNDULA

Kaduya, Counsel for the Applicants

Kambale, Khakhi, Nazombe, Counsel for the Respondents

Chimang'anga, Official Interpreter

RULING

The respondents apply for an order discharging leave which this court granted the applicants to move for judicial review of a decision made by the respondents to ban the packaging of spirits in plastic bottles (PET). Their grounds for seeking the order are that

1. the applicants are guilty of suppression of material facts;

2.   the applicants have an alternative remedy;

3.   the applicants do not have a sufficient interest in the matter as they are not engaged in the business of packaging liquor, they being just manufacturers of plastic bottles which can be put to numerous other uses;

4.   there has been a delay in commencing the judicial review proceedings since the standard complained against was promulgated in 1990.

At the centre of the present controversy is the decision by the Malawi Bureau of Standards to make it imperative for all spirits liquor to "be filled in clean glass bottles that do not affect their quality". The parties agree that the decision, in effect outlawed the packaging of spirits in plastic containers such as plastic sachets and plastic bot­tles.

In so far as it is material to this action, the applicants are manufacturers of plastic bottles, among other products. The applicants are not engaged in the business of packaging spirits.

The issues:

Suppression of material facts

a)   The parties' submissions

The respondents submit that in obtaining leave to move for judicial review.; the applicants withheld from the court the fact that the issue herein was previously already adjudicated upon on in Judicial Review No. 18 of 2011: The State and Malawi Bureau of Standards (Respondent) and Malawi Distilleries Limited (Applicant), and also in Miscellaneous Civil Cause No. 8 of 2015: The State and Minister of Local Government and Rural Development, Malawi Bureau of Standards ex parte Alcohol Manufacturers Association. It is submitted further that the applicants did not further disclose to the court that before arriving at the decision complained of all stakeholders were consulted.

The applicants on the other hand argue that the matter is not res judicata, as the case in Judicial Review No. 18 of 2011was not about packaging of spirits in plastic botties but in plastic sachets.

Whilst conceding the respondent's claim that all stakeholders were consulted the applicants fault the respondents for not having engaged representatives of the plastic manufacturing industries. They argue therefore that disclosure of the decision afore­said would not have affected the court's decision in granting leave herein.

b)   Court's Determination

The summons for leave to apply for judicial review in the present case seeks a review, principally, of the decision of the respondents "to ban the packaging of spirits in plastic bottles" and an order of this court staying or quashing the decision. In the Malawi Distilleries case the applicants therein challenged the Bureau's decision requiring that the packaging of spirits in plastic sachets "be phased out". The words "phased out" appear to have been used in view of the fact the parties had engaged in discussion following the promulgation of the standard requiring that all spirits be packaged only in clean glass bottles that do not affect its quality. In effect, however, the decision remained that spirits be packaged in glass bottles only. In the Alcohol Manufacturers Association case the issue is summarized at page 2 of the court's Ruling as follows: "The applicant took out the motion for judicial review for the court to declare or order that the decision of the P1 respondent to promulgate the Liquor (Production, Marketing and Distribution) Regulations ... should be quashed. These Regulations ... regulate the packaging of alcoholic products, in particular spirits. "It will be shown below that the regulations referred to are not in issue in the present matter.

It does seem clear to me that the subject matter or issue in this and the other two cases is substantially the legality of the standard requiring that spirits shall be packaged only in clean glass bottles, that no other packaging, and more particularly, that no packaging in plastic containers, is permissible. It seems to me that whether the alternative packaging is in plastic sachets or plastic bottles in immaterial. Both are not compliant with the standard.

In the Malawi Distilleries case the court held, inter alia, that the ban "cannot be challenged", that spirit packaging in sachets was not in conformance with the stand­ard, and that sections 20 and 22 of the Malawi Bureau of Standards Act empowered the Bureau to do what it had done. (See page 13 of the transcript). These specific findings have a bearing on the present matter notwithstanding that the applicants herein were not parties to the Malawi Distilleries case. In my view had the same been brought to the attention of the Judge who granted leave the Judge would not have granted leave on the ground that the self-same issues had already been determined in the case referred to, namely that there was no illegality involved in the decision of the Bureau. I therefore agree with the submission that leave herein was obtained upon a suppression of that material fact.

Alternative Remedy

a)   The parties' submissions

The applicants concede that the law provides for an alternative remedy, namely, to appeal to the Minister against the decision of the Bureau and they did not pursue that remedy. This issue also arose in the Malawi Distilleries case where the court held against the applicants in that case on a similar position as in this matter.

Counsel for the applicants in the present case submitted that it is not mandato1 ' that an applicant must exhaust all alternative remedies, that this court has jurisdiction to entertain any matter and any person has the right to come to this court. The case The State and another v Dr Bakili Muluzi and another [2009] MLR 444 was cited as standing for the proposition that where it is not practical or equitable to exhaust alternative remedies an applicant can approach court. It was then submitted that in the case at hand the Minister would take time to make his decision which would affect the applicants' business. No reasons were given for the fear that the Minister would take unduly long to attend to the appeal against the Bureau's decision.

b)   Court's determination

I must state first that I have not found in the Dr Muluzi case anything supporting counsel's submission. What I find relevant, in fact, is that the court restated the position that in judicial review cases it is a requirement that all alternative remedies must first be exhausted, failing which leave should not be granted. Secondly, even if the position advanced by counsel were to be correct, I am not convinced of the validity of the ground advanced for not pursuing the alternative remedy provided for under the law. No facts have been laid before this court supporting the allegation. I therefore accept that that the applicants prematurely approached the court for the remedy of judicial review.

Delay in bringing the application

a)   Parties' submissions

The respondents state that the law banning the packaging of spirit liquor has been in existence since the standard (Standard MS210) was promulgated in 1990. The l51 applicant acknowledged this fact in its letter dated 25th May 2015. It appears as Exhibit SK6 to the affidavit of Mr Steve Kamuloni in support of the application to discharge leave and Exhibit 4 to the Notice of Application for leave. For convenience I will now refer to it only as Exhibit SK6. Polypack Limited in that letter categorically acknowledges that the standard has been in existence for more than 25 years.

It was argued on behalf of the applicants that what the applicants seeks in this judicial review are the of the Liquor (Production, Marketing and Distribution) Regulations 2015 which were gazette on 30th April 2015 and that since the leave to move was obtained 17th June 2015, i.e. within 2 months of that date the applicants are within the prescribed period of three months.

b)   Court's determination

Judicial Review proceedings are required to be instituted promptly and in any event within three months from the date when the grounds for the application arose unless the court consider that there is good reason for extending the period within which the application may be made. It will be noted however that apart from the concession in Exhibit SK6 above mentioned the application for leave makes no mention of the 2015 regulations. The application for leave does not at all make mention of the Liquor (Production, Marketing and Distribution) Regulations 20 15. In paragraphs 6, 7 and 8 of the Notice of Application for Leave the applicants state:

"That on 25^th May, 2015, one of the applicants namely Poly Pack Limited wrote to the Malawi Bureau of Standards to make representations relating to the issue ... That on 3rd June, 2015, the Deputy Director wrote to Poly Pack Limited and advised that the packaging of spirits in plastic bottles was final and with no exception ... "

Exhibit SK6 in fact only discusses Malawi Standard MBS210, the same standard which was promulgated in 1990. It is a gross misrepresentation of fact therefore for counsel for the applicants to suggest that the subject of this action are the 2015 regulations when they are not at all referred in the whole application. I find therefore that the present judicial review matter was brought way out of time.

Sufficient interest

a)   Parties submissions

It is respondents' case that the applicants, not being in the business of packaging liquor, do not have a sufficient interest in so far as the ban of such packaging is concerned. The applicants, on the other hand, argue that by banning packaging of spirits in plastic bottles the respondents are in effect banning the manufacture of such bottles and therefore negatively affecting their business and therefore acting unrea­sonably in the wednesbury sense. The applicants are however on record to the effect that they currently supply their products within Malawi and beyond to regional markets.

b)   Court's determination

It is my view that the case of the applicants on this point has not been made out. Their interest only as manufacturers of plastic bottles is, in my view, too remote to the issue regarding packaging of products in such bottles to justify their interference with a lawfully promulgated standard.

Conclusion

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