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Supreme Court dismisses Attorney General appeal against judges Mutuna, Kajimanga

THE Supreme Court has dismissed with costs an appeal by the Attorney General in which he was challenging the High Court’s decision to allow judges Nigel Mutuna and Charles Kajimanga to commence committal proceedings against Malawian judge Lovemore Chikopa who was chairperson of a tribunal that was investigating their alleged professional misconduct in 2013.

The court, comprising judges Gregory Phiri and Evans Hamaundu, said it dismissed the appeal for lack of merit.

In this case, the Attorney General appealed on the question as to whether a party who has not endorsed a penal notice on a court’s order can have recourse to an order of committal as a way of enforcement.

The Attorney General lodged the appeal after the High Court dismissed a preliminary issue which they raised on the penal notice which was not endorsed.

The State argued that the High Court erred in law and in fact when it found that there was no mandatory requirement for the endorsement on the order of a formal penal notice where the two judges were seeking to commence committal proceedings in order to enforce an alleged breach of a court order.

In dismissing the preliminary issue which the Attorney General raised, the High Court stated that if it did not exercise the discretion to dispense with the requirement for a penal notice, judges Mutuna and Kajimanga would be subjected to the tribunal’s processes in flagrant disregard to their legal rights and contrary to the rules of natural justice with the ultimate result that their application before the court and the outcomes thereof would be rendered academic.

In May 2013, late president Michael Sata appointed a tribunal chaired by judge Chokopa to investigate judges Mutuna and Kajimanga in the manner in which the Development Bank of Zambia case was handled.

The tribunal proceeded to commence investigations but judges Mutuna and Kajimanga were not happy with the manner the tribunal intended to probe them and they sought judicial review proceedings on May 20, 2013 and obtained a stay of president Sata’s decision to appoint a tribunal.

According to the Supreme Court judgement, it was not in dispute that the copy of the order that served on the tribunal did not have a penal notice on the front thereof, warning to the chairperson, secretary and other members of the tribunal that disobedience to the order would be a contempt of court punishable by imprisonment, as required under Article 4 Rule 7 paragraph (4) of the Rules of the Supreme Court (White Book).

It was also not in dispute that despite the court’s order being served on the tribunal, justice Chikopa and his members continued with its business and even went as far as hearing testimony from some witnesses.

This prompted Mutuna and Kajimanga to commence committal proceedings on August 14, 2013 against justice Chokopa and tribunal secretary Chipili Katunasa Magayane.

However, the Attorney General raised a preliminary issue against the intended committal proceedings and asked the court to dismiss the two judges’ application on the ground that the order they were seeking to enforce by way of committal proceedings did not contain a penal notice and was therefore not enforceable.

The Supreme Court dismissed the appeal with costs to judges Mutuna and Kajimanga.

The court stated that after going through the arguments advanced by parties, they could not see any argument by the Attorney General urging the court below not to exercise the discretion of allowing an order not endorsed on the ground that the opportunity had already passed.

The Supreme Court agreed with judges Mutuna and Kajimanga that the issue of discretion of the judge to allow enforcement of a penal notice was being raised for the first time, saying if a matter was not raised in a lower court, it cannot be raised in a higher court.

The court dismissed the three grounds which the Attorney General raised.

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