IN THE SUPREME COURT OF APPEAL SITTING AT LILONGWE

MSCA CIVIL APPEAL NO. 6 OF 2017

(Being High Court (Lilongwe Commercial Division) Commercial Case No. 4 of 2015)

BETWEEN

THE SHERIFF OF MALAWI............................................ 1st APPELLANT

THE ATTORNEY GENERAL ............................................. 2nd APPELLANT

AND

UNIVERSAL KIT SUPPLIES.................................................. RESPONDENT

Ex-parte - UNIVERSAL KIT SUPPLIES...........................APPLICANT

CORAM: Chief Justice A K C Nyirenda, SC

Justice D F Mwaungulu, SC, JA

Justice Anthony Kamanga, SC, JA

Chisiza, Senior Counsel Advocate, for the Appellants

Tembo of Counsel for the Respondent

Msowoya and Itimu, Judicial Research Officers

Chimtande, Recording Officer

Pindani, Court Reporter

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JUDGMENT

Nyirenda, CJ

I have read in advance the judgment of Justice of Appeal Kamanga and, like him, I would also allow the appeal.

Mwaungulu, JA

I read the judgment of Justice of Appeal Kamanga and, like him, would also allow the appeal with these brief remarks. It is unnecessary, as I remark, to rehearse the facts. These, together with the extensive arguments and plethora of authorities, appear in Justice Kamanga’s judgment.

Business among divisions of the High Court raises no jurisdiction issues. The Constitution gives composite and indivisible jurisdiction to the High Court as a judicial institution. The Courts Act, as amended in 2017, provides, in section 6A, for distribution of High Court business. This judicial review action commenced in 2011, before the Courts (High Court) (Civil Procedure) Rules were effective. It is the existing procedure rules - the High Court (Commercial Division) Rules - not the Courts (High Court) (Civil Procedure) Rules, that apply. Order 35, rule 3 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017 provides:

Where a step in compliance with the practice and procedure under section 29 of the Act (the “existing procedure rules”) has been taken in an existing proceeding, before the commencement date, in particular one that uses Forms or documentation required by the existing procedure rules, the procedure shall proceed in the manner specified under the existing procedure rules.

Prior to the amendment, rules of court created High Court divisions. However formed, however, neither the Courts Act nor the High Court (Commercial Division) Rules can oust the High Court’s overarching jurisdiction as such court. Each and every division of the High Court must, however, abide by statutory distribution of the business of the High Court.

For the commercial division, created under the rules of court, Order 1, rule 4 (3) of the High Court (Commercial Division) Rules provided:

No commercial matter over which the Commercial Division has jurisdiction in terms of these rules shall be commenced in either other court or Division of the High Court.

Order 1 Rule 5, the interpretation section defines a commercial matter. It also provides:

In the event of any doubt as to whether a matter is commercial or not, the Judge at the outset or during the course of the action, shall have power to resolve the issue of opinion and the Judge’s decision shall be final.

Whether under the rules of court or statute, no jurisdiction issue arises. Under Order 1, rule 5 of the High Court (Commercial Division) Rules, the High Court must decide preliminarily whether a case before it is or is not a commercial matter. If a division, other than the commercial court, finds that the matter is one, it must not proceed with the matter. This is not because it has no jurisdiction. It has a jurisdiction. The division has power to transfer the

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case to the commercial division which it would not have if the matter is perceived as a jurisdiction issue. Conversely, if the commercial division, finds that the matter is not a commercial matter, it must transfer the case under the power to transfer. Equally, therefore, it will only be able to transfer the matter because it has jurisdiction. In transferring the cases between divisions, the division is complying with the statute. Where, therefore, the matter is clearly one or the other, a division must transfer the case to the appropriate division.

Judicial review is not a commercial matter - even if the subject matter is commercial. The commercial division should, therefore, have transferred the case to the non-commercial division of the High Court. Judicial review, irrespective of subject matter, corresponds to the supervisory jurisdiction of the High Court over tribunals or those exercising quasi-judicial functions. That is not a commercial matter, even if it involves commerce. In this case, the Sheriff of Malawi, in performing statutory duties under a judicial process, was acting a non­commercial matter. The action between the judgment debtor and the judgment creditor was commercial. The sheriff of Malawi was not a party to those proceedings. The sheriff of Malawi was only executing a judgment. There was no doubt that the sheriffs actions were not commercial.

It was certain that the action, separate from the original commercial, was a judicial review and, like in England, where it was a matter for the Kings or Queens Bench Division, now Administrative Division of the Queens Bench, the division responsible for supervisory and review power over judicial and quasi-judicial functions, it should have been transferred to the general division and not remain in the commercial division. Order 1, rule 5 of the High Court (Commercial Division) Rules deals with uncertainties by a division on the question:

In the event of any doubt as to whether a matter is commercial or not, the Judge at the outset or during the course of the action, shall have power to resolve the issue of opinion and the Judge’s decision shall be final.

This finality, because of section 21 of the Supreme Court of Appeal Act, is not subject of appeal:

An appeal shall lie to the Court from any judgment of the High Court or any judge thereof in any civil cause or matter: provided that no appeal shall lie where the judgement .. .which is stated by any written law to be final ...

It must be that the decision of the Court below, even if inappropriate, cannot in any form or guise be, under section 21 of the Supreme Court, considered by this Court. It remains so. The proceedings are not, as it is suggested, a nullity. The purpose of the rule was such that this decision, even if erroneous, on the part of the High Court, commercial or any division, should not be appealable. This saves this Court, the Court below and parties from having to recourse to this Court to determine an otherwise purely procedural issue. This Court would no doubt be inundated. The appellant cannot, therefore, raise the issue in this Court.

This Court approves Tratsel Supplies Ltd v Attorney General (The Ministry o f Education and Reserve Bank o f Malawi (2001) Civil Cause No 1978 (MAHC) (unreported), the decision of the Court below. Although a decision of the Court below, the decision discussed the common law and legislation of Malawi and without and writings of authors. That decision, does not contradict sections 20 and 41 of the Constitution. Apart from these two provisions -

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in Chapter IV of the Constitution - the respondent does not demonstrate another constitutional provision directly offended by the Constitution.

The Constitution must be understood as providing for enforcement of a monetary judgment against government - it must, like other government debts, be charged to the consolidated fund and through an Appropriation Act. Section 29 of the Courts Act, before the amendment, provided that execution of judgments - including must accord with the practice in the Rules of the Supreme Court, 1999-th e Civil Procedure Rules, 1998. Under them, warrants of execution could not be issued against the government. Section 29 of the Courts Act then must be understood as referring to the law as was - under whatever laws the Rules of the Supreme Court were made, in this case the Crown Proceedings Act, 1947. Moreover, the rule, in case of Malawi, on the law before the Crown Proceedings Act, 1947. There were previous legislation before 1902 which applied to Malawi as statutes of application under which the Rules of the Supreme Court could have been made. The Crown Proceedings Act, 1947, was a codifying statute. At common law, a monetary judgment against the crown was not, for many reasons, including those in Commissioner o f Public Highways Authority v San Diego (Philippines Supreme Court, 31 SCRA 617; Kisya Investments Ltd v Attorney General (2005) KLR 74 cited in Tratsel Supplies Ltd v Attorney General (The Ministry o f Education and Reserve Bank o f Malawi enforceable by writs of execution. There is a more fundamental reason for the rule.

A warrant of execution against government would undermine the authority of such a warrant and amount to self-execution by a judgment debtor. Warrants of execution are based on the aegis or authority of government to seize property of another (private citizen) to satisfy a judgment debt. Section 3 (4) of the Sheriff Act provides:

Unless and until other appointments are made to such offices under this section-

(a) the Registrar of the High Court shall be the Sheriff; and(b) the District Commissioner shall be an Assistant Sheriff.

The Registrar or District Commissioner would have to seize goods in the office to satisfy government debts. A warrant of execution against government would be authority by government to seize its own property to satisfy its debt - a contradiction in terms. That is why, as a matter of general law -common law, statutory or constitutional - government property cannot be seized to satisfy government debts. The government is a unique judgment debtor immune from certain execution and government property is unique property whose use to satisfy judgment debts is under a specialized procedure.

Government is not the only debtor who is spared from writs of execution. The Sheriffs Act spares quite a number some covered in the following judicial decisions. A debtor with an order to pay by instalments is insured (section 5 of the Debtors Act, 1869); a debtor in bankruptcy (Brandon v McHenry [1891] 1 Q.B. 538; Barnet v King [1891] 1 Ch 4); winding up of a defendant company (Re Zoedone Co (1834) 32 W.R. 312; Re The Opera Ltd (1890) 38 W.R. 637; Re Hille India Rubber Co (1897) W.N. 20; Re Twentieth Century Equitable Friendly Society (1910) W.N. 236; Bowkett v Fuller’s Electric Works [1923] 1 K.B. 160; Booth v Walkden Spinning Co [1909] 2 K.B. 368); voluntary liquidation (Westbury v Twigg & Co [1892] 1 Q.B. 77; Currie v Consolidated Kent Colliers Corp. Za /[1906] 1 K.B. 134; Armoduct Manufacturing Co Ltd v General Incandescent Co Ltd [1911] 2 K.B. 143; and Anglo-Baltic

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Bank v Barber [1924] 2 K.B. 410; a patient in control of Court protection (Re Winkle [1894] 2 Ch 519; Davies v Thomas [1900] 2 Ch 519; and Re Clarke [1898] 1 Ch 336. In any case, if it were to come to that, most goods that would, for example, in case of a writ of fieri facias, would be goods excluded as “tools, books, vehicles and other items of equipment necessary for business (section ... of the Sheriffs Act.” Moreover, government property is the kind of property requiring a special and specific procedure.

Under sections 25 to 43 of the Sheriffs Act, land is not automatically amenable to writs of execution. Under the Act, land, specifically private land, can only be used to satisfy a judgment debt under a specific procedure and only if there is proof that there was no return on movable property. It must be that the law - common law, legislation and the Constitution - envisage a uniqueness in government and government property as worthy protection and specific procedure. That procedure, over the years, is that a court certifies its judgment to the Secretary to the Treasury and government can pay from its funds available and, if those are not available, there will be an appropriation for the debt by the legislature. If this is inconvenient to those dealing with government, it must be assuring and reassuring that all sundry who deal with government must be aware of this risk and ensure themselves against it. This approach is, not, as the respondent contends discriminatory.

Legislation that recognizes uniqueness can seldom be described as discriminatory. The essence of discrimination is in two concepts. Treating different people equally could be discriminatory; treating people similarly placed differently is discriminatory. Given the uniqueness of government, laws that treat it differently, can never be understood as discriminatory. Even if discrimination cannot be limited by law, there is no discrimination in treating different people differently. The laws, as described, are not discriminatory. They are not unconstitutional. Neither is such a law interference with the right to an effective remedy.

The right to an effective remedy is a right that can be limited. Consequently, in looking at laws that apparently contradict - which is not the case here - the right in section 41 (3) of the Constitution, the approach is not as is suggested by the respondent. Any such law must be understood as a limitation on the right. Limitation of a right is constitutional. The limitation is, therefore, subjected to a section 44 (1) and (2) of the Constitution analysis.

The limitation should be by law - law includes legislation, common law, customary law and international law. So much so that, even if there is no legislation proscribing execution, the common law never enabled execution against government. The common law would, therefore, limit the right. Certainly, even without evidence from the Attorney General, as demonstrated in Tratsel Supplies Ltd v Attorney General (The Ministry o f Education and Reserve Bank o f Malawi, the common law limitation is reasonable and necessary in a democratic society. It is a reasonable limitation because the limitation still provides for satisfaction of the debt albeit by a unique process. It is not, therefore, a whole negation of the right. The necessity is underlined by that it would be a chaotic world where debtors across a broad population some with huge claims against over Government queue in space and time for Government property.

Subjecting, therefore, the common law and legislation to section 44 (1) and (2) of the Constitution analysis, the law on immunity on Government property cannot be unconstitutional. Most of the problems with the judicial review in this case was overreliance on a statement by a public officer who acted without legal advice and stated that the reason

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why the Sherriff of Malawi could not execute warrants of execution against government is because enforcement of judgments against Government is by moral suasion. This is not the legal position.

The correct legal position is that, for years, under the common law legislation and the constitution, there is a prescribed method of satisfying judgment debts against an otherwise unique institution - Government. As it occurs here, most often, a Ministry or Government department might not be able to satisfy the judgment debt against Government. If this happens, the judgment debt against Government may have to be met by funds from the Treasury. Where this is not the case Parliament has to appropriate funds towards Government debts. The Government cannot, from the nature of warrant of execution, order, itself as a debtor, execution against its own property.

There was quite some discussion about whether certain matters that the Court below considered were in the pleadings. Of course, the lauded decision of this Court in Nseula v Attorney General & Another [1999] MLR 313, stressed, correctly in my judgment, that a court should, as it should be, be guided by pleadings and matters parties raise in those pleadings. That, however, was speaking generally and only in relation to questions of fact. That decision, therefore, should only be restricted to pleadings of fact. The court cannot manufacture or imagine its own facts and determine the case between the parties based on those manufactured facts. What that decision did not consider is what are pleadings and what they are supposed to contain. The related question, not considered by the decision, is what aspects of pleadings bind a court?

The first point to make is that whatever binds a court is pleadings. There is no obligation under strict rules of pleadings to plead the evidence. Pleadings are not supposed to be affidavits of evidence. Conversely, affidavits, unless ordered to be so because the proceedings are to proceed by way of a writ, are not pleadings. In both this case and matters proceeded on originating summons or motions. There is no rule requiring pleadings to be made in actions commenced by originating summons or originating motions. The question of pleadings never, as in Nseula v Attorney General & Another, arose in this case.

The action in this case was a judicial review. It is a detailed designated motion. There are no pleadings. The judicial review motions are supposed to be supported by evidence. The question of pleadings, therefore, never arose. The scheme under judicial review is that all parties can raise any legal matter without having to plead it. This is precisely because there is no rule requiring parties to plead law in the motion. The most that this motion requires are that the applicant raises the action or omission complained of and the relief sought.

Equally, even where pleadings are necessary - where the mode of commencing proceedings is by an originating writ of summons - a party generally will have to plead facts and not the law. Of course, statutory defenses - not general legislation - must be pleaded. This is because they are specific defenses to an action. Otherwise, there was no law, until the Courts (High Court) (Civil Procedure) Rules, not applying in this action, that requires that law - legislation, customary law, international law or the constitution - must find their way into pleadings. Pleading law, except for the exception referred, discourages this circumspectively. The argument, therefore, that a legal principle touching the case will never be raised before a court of law because it was not in the pleadings is untenable. Also untenable is the contention that a legal issue not canvassed by the parties cannot be considered by the court.

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Such an approach would definitely be against section 9 of the Constitution:

The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescription of law.

The duty of a legislature is to ascertain the facts and, therefore, where those facts are ascertained, to apply the prescriptions of law to them. The Constitutional provision does not suggest that the prescriptions of law should not be ascertained - they must be ascertained. Of course, the parties, through their legal representatives, plead the facts and offer different items of evidence to prove those facts. Generally, until after trial, the parties have the best monopoly on the facts and the evidence. It behooves a good court to heed the pleadings during trial or the appeal hearing. Equally, the parties’ legal representative have a legal obligation to bring the law and all legal issues concerning the parties’ action.

These obligations, however, are no substitute for the duty which, under section 9 of the Constitution, is the court’s to ascertain the law and apply it to relevant facts. The proposition, therefore, that a court cannot decide a case on matters of law or legal issues not covered by the parties needs more consideration and analysis.

The proposition that a court is only restricted to law and legal issues raised by counsel clearly hinges on an erroneous analogy with pleadings - which only apply to facts. It can only flourish on the premise that a court is bound by matters of law or legal issues raised by the parties - in the pleadings or otherwise. There is no such principle. On the contrary, there are two principles.

First is a principle that a court is not bound by a legal result - on law or issue - proposed, suggested or agreed by the parties in an argument or submission. A court can come, on different argument law or legal issue, with a different legal result or outcome. It would do so because of section 9 of the Constitution where it has a duty to ascertain the law to apply to the cases. This duty is never arrogated even by that parties agreed that a particular law or legal position is the correct one.

Courts take judicial notice of statutes (section 22 of the General Interpretation Act) and judicial decisions even if not cited by counsel. In Kamen v Kemper Financial Services, Inc et al, 500 US 90, 99, in the Supreme Court of the United States, Marshall, JA, said:

When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.

Justice Marshall’s statement in Kamen v Kemper Financial Services, Inc 500 US 90 Condign. First, he demonstrates that failure to raise any law on a matter is not issue waiver because a court is not bound by parties’ submissions:

When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing

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law. See, e.g., Arcadia v Ohio Power Co., 498 U.S. 73, 111 S. Ct. 415, 418,112 L.Ed.2D 374 (1990).

Secondly, a court has a duty to identify and apply correct law:

It is not disputed that petitioner effectively invoked federal common law as the basis of her right to forgo demand as futile. Having undertaken to decide this claim, the Court of Appeals was not free to promulgate a federal common law demand rule without identifying the proper source of federal common law in this area. Cf. Lamar v Micou, 114 U.S. 218, 223, 5 S.Ct. 857, 859, 29 L.Ed. 94 (1885) (“The law of any State of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof’); Bowen v Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 444, 83 L.Ed. 455(1939).”

Thirdly, a court will do this despite that parties never raised it:

Indeed, we note that the Court of Appeals viewed itself as free to adopt the American Law institute’s universal-demand rule even though neither party addressed whether the futility exception should be abolished as a matter of federal common law.

The court would be acting contrary to section 9 of the Constitution and its old and nascent responsibility that it is the final arbiter on all questions of law. In Martinez v. Mathews, 544 F.2d 1233. 1237. Tuttle, J said

Our action in this case could be more seriously constrained by the fact that various aspects of plaintiffs' theories supporting entitlement under the new law apparently have not been previously presented to the lower court. It is frequently said that appellate courts should not consider issues raised for the first time on appeal. See, e. g., Guerra v Manchester Terminal Corp.,498 F.2d 641, 658 n. 4 (5th Cir. 1974). But even if this rule is pertinent here, it can give way when a pure question of law is involved and a refusal to consider it would result in a miscarriage of justice.

It would be a different proposition that a court would not in its final judgment pronounce the correct law applied to the facts because the parties omitted the correct law or relied on a wrong law or legal issue.

Such a proposition is certainly presumptuous of how judges act when delivering judgment. On modern practice, skeleton arguments will provide not only the law and legal issues but the legislation and judicial decisions which, in the best conception of the parties, cover the matter before a court whether during trial or appeal hearing. Judges may read all this information prior to the trial or hearing. Judges may conduct research of their own to address matters raised by the parties. This knowledge certainly assist a judge tremendously during the trial or hearing. The judge is enabled to raise additional matters resulting from the judge’s research. The judge may raise some part of the research during the hearing. There is no obligation, however. Just as there is no obligation on the court to refer or to repeat to the parties during trial or appeal hearing or the legislation or judicial decisions that are going to inform his

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judgment. More importantly, after the trial or appeal hearing, a judge will conduct further research in the light of legal issues or law raised by the parties. Moreover, the judge could broaden the area of research because of the issues arising clearly as the final judgment is being countenanced. It would be really burdensome that a judge should be able to disclose to parties during trial or hearing all legal issues, legislation, judicial or legal authors that inform the judgment to be disclosed; to ignore the correct legal outcome on the facts or arguments as ascertained; or recall the parties so that they are readdressed by the judge on those matters. The correct proposition, therefore, must be that the parties must be ready for the legal outcome that the judge introduces after a perilous, pernicious, perspicuous ascertainment of the prescribed law. The argument to the contrary is untenable.

I wanted only to add these points as a matter of comment and probably extended reasoning in allowing the appeal as all of us unanimously agree.

Kamanga, JA

Background

This is an appeal by the Sheriff of Malawi (the “1st appellant”) and the Attorney General (the “2nd appellant”) against the decision of the High Court (Lilongwe Commercial Division) injudicial review proceedings delivered on 17th August, 2015 in Commercial Case No. 4 of 2015 in which the court below, inter - alia, held as unconstitutional the decision of the 1st appellant in refusing to execute a writ of fieri facias against the Government with respect to the two judgment debts entered against the Government in Commercial Case No. 39 of 2012 in the Lilongwe Commercial Division and Commercial Case No. 71 of 2014 in the Blantyre Commercial Division (the “two Commercial Division judgment debts”).

The facts of this case, in so far as they relate to the appeal, are fairly straight forward. During the period 17th November, 2009 and 29th June, 2011, the respondent supplied to the Malawi Prison Service various goods valued at USD 1,635,466.50. Following the delivery of the goods, the Malawi Prison Service failed to make payment, and the respondent, in Commercial Case No. 39 of 2012 in the Lilongwe (Commercial Division), sued the Attorney General for the monies owed. By a consent judgment entered on 17th September, 2012 the Attorney General, inter - alia, agreed to settle the judgment debt. However, the judgment debt was not settled and, on 16th January, 2014, the respondent moved the court to fix a time within which the judgment debt should be paid; and the court fixed a time-frame of 60 days within which the judgment debt should be paid. The respondent was subsequently paid only USD 494,952.50, and an amount of USD 1,140,515 remained outstanding.

On 2nd December, 2013, while the amount of USD 1,140,515 remained outstanding, the respondent supplied further goods worth USD 865,740 to the Malawi Prison Service. The respondent was not paid, and subsequently sued the Attorney General in Commercial Case No. 71 of 2014 in the Blantyre (Commercial Division) for the amount owing. A judgment in default was entered against the Attorney General on 17th June, 2014, and the court, on 11th August, 2014 ordered that the amount owing be settled within 30 days of the date of the order. However, the amount was not paid.

The respondent subsequently obtained two writs offieri facias against the Government for the total amount of USD 2,006,255. The two writs fieri facias were never executed and, in response to an inquiry, on behalf of the respondent, the 1st appellant, on 18th February, 2015 advised the respondent as follows-

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Further to our recent discussion ... I wish to confirm that there is an existing practice and arrangement that all matters or judgment debts against the Attorney General are enforced upon Government using moral persuasion as opposed to the process levying upon the defendant’s property. This practice has been in practice for a number o f years now, although its overall success is debatable.

In light o f the above, this office may not proceed to levy upon the defendant’s property in this particular case, but rather will appeal to the Attorney General to promptly settle the judgment debt which arose from a business transaction

On 18th February, 2015, the respondent commenced judicial review proceedings against the 1st appellant with respect to the latter’s decision to refuse to levy execution of against the Government in relation to the two Commercial Division judgment debts. In those proceedings, the respondent sought a number of declaratory orders, including orders that: (i) by refusing to execute on the Government, the Sheriff o f Malawi’s decision was made ultra vires and, therefore, void”; (ii) by refusing to execute on the Government, the Sheriff o f Malawi is infringing the [respondent’s] right to an effective remedy by a court o f law and ... the decision is, therefore, unconstitutional, unlawful and ... void”; and (iii) the existing practice and arrangement between the Attorney General and the Sheriff o f Malawi that all ... judgments debts against the Attorney General be enforced upon the Government using moral persuasion as opposed to the process o f levying execution on the Government’s property, in the absence o f any statutory or legal basis, is unlawful and, therefore, void”; and the respondent sought 'Am order o f mandamus compelling the Sheriff o f Malawi to levy execution on the Government in relation to ” the two Commercial Division judgments debts.

In a judgment delivered on 17th August, 2015 the court below, in effect, held that the decision of the 1st appellant to refuse to levy execution of against the Government in relation to the two Commercial Division judgment debts, but instead use moral persuasion to procure the settlement of those debts, was unconstitutional and lacked legal basis; that the election by the 1st appellant to use moral persuasion to procure the settlement of the judgments debts by the Government denied the respondent’s enjoyment the fruits of litigation, and the court below, accordingly, directed that the 1st appellant should carry out his duty as commanded under, and give efficacy to, the Sheriffs Act.

The appellants ’ appeal

The appellants, being dissatisfied with the decision of the court below, have appealed to this Court. In a notice of appeal filed on 19th August, 2015, the appellants fault the decision of the court below on the following grounds -

“1. Grounds o f Appeal(a) THA T the Judge erred in holding that this is a commercial matter;

(b) THAT the Judge erred in making a judgment based on the following assumptions and not provedfacts: (i) an assumption that there was an agreement between the Ministry o f Finance and the Malawi Prison Service; (ii) an assumption that there was an agreement between the two on the projected costs o f the stated uniforms; (iii) an assumption

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that the capacity o f the Government to afford to pay [for] the uniforms had been considered by them;

(c) THA T the learned Judge erred in holding that the practice by the [Sheriff] to use moral persuasion to enforce judgments against the Government was unconstitutional;

(d) THAT the learned Judge erred in holding that the Sheriff may be guilty o f discrimination in electing not to execute against the Government in the absence o f legislation that specifically precludes [the Sheriff] from executing warrants against [the] Government when the law does not provide a procedure for execution o f judgments against the Government;

(e) THAT the learned Judge erred in holding that the [Sheriff] shoidd treat private citizens and Government alike in execution o f warrants;

(f) THAT the learned Judge erred in holding the [Sheriff] should execute against [the] Government on the ground that judgment debts are a charge on the Consolidated Fund;

(g) THAT the learned Judge erred in holding that the decision o f the [Sheriff] was unconstitutional and lacking in legal basis;

(h) THAT the learned Judge erred in holding that there is no law that precludes the Government from execution o f judgments by the [Sheriff]; and

(i) THA T the learned Judge erred in ordering and/or compelling the [Sheriff] to execute against the Government”.

The appellants, accordingly, seek a reversal of the judgment of the court below, and pray for a judgment in their favour.

It is pertinent to observe that some of the grounds of appeal, although pleaded as separate grounds of appeal, raise the same or related issues. For example, paragraphs (c), (g), (h) and (i) of the grounds of appeal are all premised on a contention by the appellants that the 1st appellant cannot lawfully execute against the Government.

Preliminan’ objection

At the commencement of the hearing of this appeal on 16th November, 2017, the respondent, pursuant to Order III rule 14 of the Supreme Court of Appeal Rules, raised a preliminary objection to the appeal being heard. Although the notice of preliminary objection had been filed late, this Court, pursuant to Order III rule 3 (2) of the Supreme Court of Appeal Rules, exceptionally waived the irregularity and allowed the application to heard.

The respondent argued and submitted that, on 15th March, 2017, the parties hereto executed a consent order which was sanctioned by the court below; and that under the consent order the Government agreed to pay the judgment debts owed to the respondent through a promissory note which has since been issued to the respondent and that, accordingly, the real issue between the parties has been settled by the consent order; and that the matter herein is res judicata and, in relation to appeal, this Court is functus officio. In support of this argument and

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submission, the respondent cited Tembo andKainja v Attorney General [2002-2003] MLR 263 (SCA); Anti-Corruption Bureau v Atupele Properties [2007] MLR 20 (SCA) and In the matter o f Presidential Reference o f a dispute o f a Constitutional Nature under section 89 (1) (h) o f the Constitution and In the matter o f the Question o f section 65 o f the Constitution and In the matter o f the Question o f Crossing the Floor by Members o f the National Assembly [2007] MLR 153 (SCA) and Urban Mkandawire v Council for the University o f Malawi [2007] MLR (SCA). The respondent also argued and submitted that the appeal has no consequence on the real issue between the parties which has be resolved by the consent order, and any judgment of this Court in relation to the appeal would serve only as a gratuitous legal opinion as the money due to the respondent and the related costs have already been settled, thus rendering the matter res judicata and this Court functus officio. In support of this argument and submission, the Respondent cited Maziko Charles Sauti Phiri v Privatization Commission and Attorney General Constitutional Case No. 13 of 2005.

The appellants opposed the preliminary objection on the grounds that the consent order of 15th March, 2017 is not part of the record of appeal; and that the fundamental issues raised by the appeal, including whether the court below had jurisdiction to hear and determine the application for judicial review and whether the 1st appellant can levy execution against the Government, remain unresolved. The appellants, accordingly, prayed that the hearing of the appeal should proceed to determine those unresolved issues.

This Court, after a careful consideration of the respondent’s preliminary objection, and the arguments and submissions of the parties, was of the firm view that the respondent’s arguments and submissions in support of the preliminary objection do not address and resolve the fundamental issues raised by the appeal. Furthermore, the appeal herein has not been withdrawn by the appellants and the fundamental issues raised by the appeal had not been resolved. The respondent’s preliminary objection was, accordingly, dismissed, and this Court proceeded to hear the appeal.

The appellants ’ arguments and submissions in support o f the appeal and the respondent's arguments and submissions in opposition to the appeal

During the hearing of this appeal on 16th November, 2017, appellants adopted the skeleton arguments which had been filed on 29th June, 2017 and 29th August, 2017 in support of the grounds of appeal and made arguments and submissions. The respondent also adopted the skeleton arguments which had been filed on 12th June, 2017 in opposition to the grounds of appeal and made arguments and submissions.

It is pertinent to observe that the appellants’ arguments and submissions were not made in the same order as the grounds of appeal appear in the notice of appeal. It is also pertinent to observe that, in its skeleton arguments, the respondent takes the general view that the court below did not err at all, and that its judgment was justified in the circumstance. The respondent made specific arguments and submissions with respect to paragraphs (a) to (c) of the grounds of appeal, but with respect to paragraphs (d) to (i), the respondent regrettably did not make any specific arguments and submissions. Instead the respondent opted to “concur with the court below on the points on which the appellants are appealing, and the respondent adopted the arguments o f the court below on the various points” - as if the issues raised in the appellants’ grounds of appeal were argued or canvassed in the court below. The approach adopted by the respondent in this regard gives the impression that the respondent has no substantive arguments and submissions to counter the concerns raised by the appellants in relation to those grounds of appeal. The grounds of appeal in paragraphs (d) to (i) specifically fault approach and/or the judgment of the court below and, if respondent intended to challenge or oppose any of those

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grounds of appeal, the respondent should, perhaps, have specifically indicated why it challenges or opposes the grounds of appeal, or indeed why it concurs with the judgment of the court below. To simply say, as the respondent has, that it concurs with the court below on the points on which the appellants have appealed, and adopt the arguments of the court below on the various points is not helpful. If the respondent concurs with the court below on the points on which the appellants have appealed, the respondent should, at the very least, have indicated why it concurs with the court below; and if the respondent adopts the arguments of the court below on the various points, the respondent should, at the very least, have indicated which arguments of the court below it adopts in relation to each of the grounds of appeal in paragraphs(a) to (i) of the notice of appeal.

The gist of the appellants’ arguments and submissions in support of the appeal and respondent’s arguments and submissions, where applicable, in opposition to the appeal may conveniently be summarized as follows-

IVith respect to paragraph (a) o f the grounds o f appeal, namely, that “the Judge erred in holding that this is a commercial matter”

The appellants argue and submit that the court below did not have jurisdiction to hear and determine the matter herein, and definitely not by way of judicial review. The appellants cite Order 1, rule 4 (2) of the High Court (Commercial Division) Rules (which was applicable at the time of the commencement and determination of the judicial review proceedings in this matter) as well as the case of Hetherwick Mbale v Histon Maganga Misc Civil Application Cause Number 21 of 2013, MSCA (unreported) and argue and submit that “ m o proceedings shall be commenced in the High Court (Commercial Division) unless they relate to a commercial matter”.

The appellants argue and submit that the court below, being a Commercial Division of the High Court, lacked jurisdiction to handle the matter and that, despite accepting that there was no commercial relationship between the 1st appellant and the respondent, the below court, at pages 5 to 6 of its judgment (pages 388 to 389 of the record of appeal) wrongly concluded that-

“ ... this matter is about a decision by the Sheriff o f Malawi not to enforce judgements which were rendered by the Commercial Division o f the High Court o f Malawi. Indeed, the last time I checked, it is the duty o f the court that renders the judgments to ensure that the same is enforced. I thus fa il to appreciate the respondent’s arguments that this is not a commercial matter. In the same vein, I do not think the Applicant suppressed any material facts since it is not in dispute that the Sheriff o f Malawi refused to enforce the two judgements rendered by the Commercial Court by not executing the warrants on Government. This indeed is essentially the issue at hand. I find that it would be fallacious for us to accept the argument that just because there was no commercial relationship between the parties, then the matter is no a commercial one. This is especially considering the fact that the High Court (Commercial Division) Rules do not include enforcement o f foreign judgements o f commercial matters, as commercial matters. Now I do not see the logic o f excluding the enforcement o f the local judgments o f commercial matters from the ambit o f the definition o f what constitutes a commercial matter in Malawi. Thus the arguments that were presented by the respondent in this regard are

flawed”.

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The appellants fault the approach adopted by, and the conclusion of, the court below, and argue and submit that the matter before the court below was not a commercial matter. The appellants contend that the matter was about the 1st appellant’s refusal to execute against the Government; that the challenge against the 1st appellant is only the refusal to execute against the Government; that this should be distinguished from actual execution or enforcement of the two Commercial Division judgement debts. The appellants argue and submit that Order 1 rule 5 of the High Court (Commercial Division) Rules (which was applicable at the time of the commencement and determination of the judicial review proceedings in this matter) provided that a commercial matter is civil matter of commercial significance arising out of or connected with any relationship of commercial or business nature, whether contractual or not; that the pleadings in this matter in the court below do not disclose any commercial relationship between the 1st appellant and the respondent; that there was in fact no commercial relationship between the 1st appellant and the respondent; and that even the case of judicial review before the court below bore a different case number from those in of the judgments sought to be enforced; and that the 1st appellant was not a party to the proceedings in two Commercial Division judgments, which were decided in favour of the respondent.

The appellants further argue and submit that where a court makes a determination on a subject matter on which it does not have jurisdiction, the determination is null and void, and is liable to be set aside. In support of this argument and submission the appellants cite a wealth of case authorities, including Mang’anda v Mbewe Commercial Case Number 43 of 2010, HC, Lilongwe District Registry, (unreported); Ezilet Thomotho Lloyd Thomotho Civil Cause Number 196 of 2006, (HC) (PR) (unreported); Kam’bwemba v Malawi Broadcasting Corporation 8 MLR 359 (SCA); Lustania v. L.B. Nkhwazi MSCA Civil Appeal No. 47 of 2008 (unreported); Lieutenant Colonel Brown Njoloma v The Republic o f Malawi MSCA Criminal Appeal No. 20 of 1995, (Unreported); and Bhima v Bhima 7 MRL 163; and Phiri v Shire Bus Lines [2008] MLR 259).

The appellants cite as case authorities State Ministry o f Education v Suluma and Others (49 of 2006) [2006] MWHC 10 (7 October 2006); Ex parte Tsoka (42 of 2008 [2009] MWHC 52 (7 July 2009); Associated Provincial Picture House Ltd v Wednesbury Corporation [1948]1 KB 223; and Council o f Civil Service Unions v Minister for the Civil Service [1985] AC 374 and argue and submit that the remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. The appellants further argue and submit that judicial review proceedings cannot be used to enforce judgments, and in this regard the appellants cite the case of Republic v The Attorney General & Another - Ex parte James Alfred Koroso [JR M1SC APPL. 44 of 2012] [2013] eKLR. The appellants in effect argue and submit that enforcement of judgment debts cannot be by way of judicial review; that there are specific procedures for enforcing judgment debts such as garnishment, issuance of warrants of execution or indeed contempt proceedings; and that in this matter the court below clearly mistook or equated judicial review proceedings for execution proceedings, or equated judicial review proceedings with execution proceedings. In other words, the appellants suggest that the judicial review proceedings against the 1st appellant, including the mandamus sought in the court below to compel the 1st appellant to execute the two writs of fieri facias against the Government with respect to the two Commercial Division judgment debts, were misconceived.

The appellants, consequently, contend that, in view of the fact that (i) the court below had no jurisdiction to preside over the matter because it was not a commercial matter on account that there was no commercial relationship between the parties to the proceedings; and (ii) the judicial review proceedings instituted against the 1st appellant for the purposes of

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enforcement of execution against the Government with respect to the two Commercial Division judgment debts were misconceived, the court below should not have entertained the respondent’s application for judicial review, but should instead have dismissed the proceedings for want of jurisdiction; and further that the proceedings in the court below (including the determination of the court below) are null and void, and should be set aside.

The respondent argues and submits that Order 1, rule 5 of the High Court (Commercial Division) Rules which defines the term “commercial matter” is “not exhaustive as to what constitutes a “commercial matter”, and the respondent contends that the proceedings in court below were “a commercial judicial review”. The respondent concurs with the reasoning of the court below at pages 5 to 6 of its judgment (page 388-389 of the record of appeal), namely, that-

“ ... this matter is about a decision o f the Sheriff o f Malawi not to enforce judgments which were rendered by the Commercial Division o f the High Court o f Malawi. Indeed, the last time I checked, it is the duty o f the court that renders the judgment to ensure that the same is enforced. I thus fail to appreciate the respondent’s argument that this is not a commercial matter. In the same vein I do not think that the applicant suppressed any material facts since it is not in dispute that the Sheriff o f Malawi refused to enforce the two judgments rendered by the Commercial Court by not executing warrants on the Government. This is essentially the issue at hand. I find the [argument] that it would be fallacious for us to accept the argument that just because there is no commercial relationship between the parties, then the matter is not a commercial one. This is especially considering the fact that the High Court (Commercial Division) Rules do include enforcement o f foreign judgments o f commercial matters, as commercial matter. Now I do not see the logic o f excluding the enforcement o f local judgment o f commercial matters from the ambit o f the definition o f what constitutes a commercial matter in Malawi. Thus the arguments that were presented by the respondent in this regard were flawed.

In another breathe, the respondent argues and submits that, in accordance with Order 1 rule 5 of the High Court (Commercial Division) Rules, the determination by the court below that the matter was a “commercial matter” was final; and that the issue is “moot as it cannot have the effect of overturning the judgment of the [court below]”.

With respect to paragraph (b) o f the grounds o f appeal, namely, that “the Judze erred in makinst a iudsment based on the following assumptions and not proved facts: (i) an assumption that there was an agreement between the Ministry o f Finance and the Malawi Prison Service; jii) an assumption that there was an agreement between the two on the projected costs o f the stated uniforms; (Hi) an assumption that the capacity o f the Government to afford to pay [fori the uniforms had been considered by them”

The appellants refer to the following observations of the court below at page 10 of its judgment (page 393 of the record of appeal)-

I would assume that there was an agreement between the Ministry o f Finance and the Malawi Prison Service that the latter would be allocated moneys to purchase uniforms. I would also assume that there would have been agreement on the projected costs o f the said uniforms. In this regard I would further assume that the capacity o f the Government to afford to pay for the

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uniforms was also considered. Indeed I would thus conclude that it is only after agreeing on the projected cost that funds would have been allocated to the Malawi Prison Service so that they could procure the uniforms. I am also mindful o f the fact that Government has set down procedures for approving procurements at different levels, which must be strictly followed. The conclusion in this instance would thus be that the Malawi Prisons Service went ahead to obtain the uniforms from the Applicant after being assured that the money was available to pay for the same and after the procurement o f uniforms had been approved..

The appellants cite the case of Commercial Bank o f Malawi v Mhango [2002-2003] MLR 43 (SCA) in which this Court held that the duty of a judge is to determine a case on the evidence before him or her and the relevant law in order to arrive at a correct decision, and not to use his or her personal knowledge; the appellants specifically cite the following observations of Msosa, JA, delivering the unanimous opinion of this Court at page 48-

“// is clear from the above comment that the Judge was using his personal knowledge to decide the credibility o f Mr. Chapweteka and to decide whether it was true that the respondent and Mr. Chapweteka colluded in order to transfer funds from the customer’s accounts to the insurance brokerage company. This was certainly wrong. The duty o f a Judge in deciding a case is to evaluate the evidence before him and the relevant law in order to arrive at a correct decision. Cases must be decided on the evidence before the court and the relevant law. We would again allow this ground o f appeal'.

The appellants, accordingly, argue and submit that the assumptions, and therefore, also the conclusions of fact by the court below reflected on page 10 of its judgment were not supported by evidence; and that the court below erred in drawing conclusions and making judgment based on unsupported facts and assumptions.

The respondent concedes that neither the appellants nor the respondent, in their affidavits filed in the court below, raised the facts which are the subject of this ground of appeal. However, the respondent argues and submits that the assumptions that the appellants complain about “were mere obiter dicta and not the basis o f the conclusion that execution can [be levied] against the Government; [and that] consideration o f those assumptions cannot affect the outcome o f the matter. ...”.

With respect to parasraph (c) o f the grounds o f appeal, namely, that “the learned Judge erred in holding that the practice by the lSheriff! to use moral persuasion to enforce judgments asainst the Government was unconstitutionalparagraph fs) o f the grounds o f appeal, namely, that “the learned Judse erred in holdins that the decision o f the ISheriffl was unconstitutional and lacking in lesal basis'": parasravh (h) o f the grounds o f appeal, namely, that “the learned Judse erred in holdins that there is no law that precludes the Government from execution o f judgments by the [Sheriff]"; and parasraph (i) o f the grounds o f appeal, namely. that “the learned Judse erred in order ins and/or compelling the fSheriff7 to execute asainst the Government”

The appellants refer the following conclusion of the court below at page 16 of its judgment (page 399 of the record of appeal)-

“ ... From the foregoing, I must indeed find that the decision o f the Sheriff o f Malawi was thus unconstitutional and that it lacked legal basis. Further that

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the election by the Sheriff to use “moral persuasion ” did deny the applicant from enjoying the fruits o f his successful litigation...

The appellants cite section 8 of the Civil Procedure (Suits by or Against Government or Public Officers) Act which provides that-

“ When the decree is against the Government or against a public officer in respect o f such act, neglect or default as aforesaid, a time shall be specified in the decree within which it shall be satisfied: and i f the decree is not satisfied within the time so specific the court shall report the case for the orders o f the Government. Execution shall not be issued on any such decree unless it remains unsatisfiedfor a period o f three months computedfrom the date o f the report”.

The appellants argue and submit that section 8 of the Civil Procedure (Suits by or Against Government or Public Officers) Act does not set out any procedure for a judgment creditor to execute a judgement against Government; but that this is provided for under section 29 of the Courts Act. In support of this contention the appellants cite the case of Casalee Cargo Ltd v Attorney General [1992] 15 MLR 48 (HC) in which Mwaungulu, J, as he then was, observed that-

“execution is covered by section 29 o f the Courts Act which provides: Save as otherwise provided in this Act, the practice and procedure o f the High Court shall, so far as local circumstances admit, be the practice and procedure (including the practice and procedure relating to execution) provided in the Rules o f the Supreme Court ".

The appellants cite the case of National Bank o f Malawi v Banda Civil Case No. 325 of 1991 (High Court (PR) (unreported)) in which, in relation to garnishee proceedings against the Government, the court held as follows-

“... It seems to me that the applicant would indeed have had a proper case for which a garnishee order should have been granted, were it not for the fact that the garnishee in the instant case is the Government o f Malawi, which is represented by its principal legal adviser, the Attorney General. Order 49 (1) paragraph 29, clearly and expressly provides that no order for attachment o f debts shall be made or have effect in respect o f any money due any accruing from the Crown. Order 49 generally does not apply in respect o f any order against the Crown. The effect o f that in our situation is that Order 49 does not apply in respect o f any order against the Government.”.

The appellants also cite the case of Tratsel Supplies Ltd v. Attorney General (The Ministry o f Education) and Reserve Bank o f Malawi Civil Cause No. 1798 of 2001, HC, PR (unreported) in which Mwaungulu, J, as he then was, in relation to execution of judgement against Government, held as follows -

“Order 77, rule 15 o f the Rules o f the Supreme Court provides that warrants o f execution do not apply in respect o f Government. Order 77, Rule 15 (2) provides that satisfaction o f orders against Crown should be in accordance with section 25 o f the Crown Proceedings Act 1974. This Act has not been applied to Malawi. Section 25 follows, however, closely sections 13 and 16 o f the Petition o f Rights Act, 1860. This is a Statute o f General Application before 1902. It is part o f our law. ...

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Order 77, rule 15 conferring Government immunity from execution does not, according to section 29 (1) o f the Courts Act, base solely on section 25 o f the Crown Proceedings Act, 1947. Besides basing on our Civil Procedure (Suits by or Against Government or Public Officers) Act, the limitation in Order 77, Rule 15 applied generally before the Crown Proceedings Act, 1947. A similar rule existed before the Crown Proceedings Act, 1947 under the Supreme Court o f Appeal Judicature Act 1875 and the Petition o f Right Act, 1860, both statutes o f general application before 1902. Order 77, Rule 15 predates the Crown Proceedings Act, 1947 and emanates as an independent rule o f court.

That it is independent rule o f court is important for another point which I want to make because o f some comments in Tayamba General Dealers v Attorney General and Apex Car Sales v Attorney General: the modes o f executing judgements in Orders 45 to 52 in the Rules o f the Supreme Court (formerly Orders XLI to XLIX) are creatures o f the Rules o f Court; the same Rules o f Court, since 1875 and up to 1947, excludes their application to Government,Judges o f the Court, who initially made the rules, reacted to public concerns, we see shortly and the prevailing constitutional arrangements favouring Government immunity against execution. Those constitutional and public policy concerns arise in the argument o f this appeal and are eruditely accentuated by my learned colleagues in this Court. The choices were made then that still ride us today. The choices were then generally universal and are today in favour o f protecting all public property from execution. In relation to money in the Consolidated Fund there is no room for a choice. The Constitution proscribes withdrawals from the Consolidated Fund, even when money is in the bank, except by appropriation according to the Constitution. Although Government should respect court judgments, the Constitution prescribes that money required for judgments against Government should, following proper procedure, be charged to the Consolidated Fund. These constitutional provisions, in my most considered view, put moneys in the Consolidated Fund out o f reach ofa sheriffor his officers executing a writ o f fieri facias or creditors wanting to garnishee a debtor Government or debtor who Government owes money and complement and augment what has always been the practice o f this Court since 1875 and until Tayamba General Dealers v Attorney General and Apex Car Sales v Attorney General that Orders 45 to 52 do not apply to judgement against Government. This rendition o f the constitutional provisions coheres with the universality o f the principle under foreign case law referred to as section 11 (2) (c) o f the Constitution exhorts.

The appellants highlight the rationale for exempting the Government from execution for judgment debts by citing the Philippines case of Commissioner o f Public Highways v San Diego 31 SCRA 617 in which the court observed-

the universal rule that the State gives its consent to be sued by private parties, either by general or special law, it may limit a claimant’s action “only up to the completion ofproceedings anterior to the stage o f execution ” and that power o f the court ends when judgment is rendered, since Government funds and properties may not be seized under writs o f garnishment to satisfy such judgments, is based on obvious considerations o f public policy. Disbursement ofpublic funds must be covered by corresponding appropriation as required by law. The functions and public services rendered by the State cannot be

paralyzed or disrupted by the diversion o f public funds from their legitimate and specific objects as appropriated by law... ”.

The appellants also cite the Kenyan case of Kisya Investments limited v Attorney General (2005) KLR 74 in which it was held-

“....Any payment by the Government must be covered by some appropriation.It is said that Parliament is very jealous o f its control over the expenditure, and this is as it should be. No Ministry or Department has any ready funds at all times to satisfy decrees or judgments. While the existence o f claims and decrees may be known to Ministries and Departments, they have to notify the Ministry o f Finance and the Treasury o f the same so that payment is arranged for or provisions made in the Government expenditure. The second situation which arises from the above, is that once a decree or judgment is obtained against the Government, it would require some reasonable time to have it forwarded to the Ministry o f Finance, Treasury, Comptroller and Auditor General, etc.; for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their “own ” funds to settle such decrees or payments considering the nature o f the Government structure, procedures, red tape and large number o f claims, this could take a long time. I f execution and/or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing o f decrees andjudgments, and will be inundated with executions and attachments o f its assets day in and day out. Its buildings will be attached and its plant and equipment will be attached; its furniture and office equipment will be attached; its vehicles, aircraft, ship and boats will be attached. There will be no end to the list o f likely assets to be attached and auctioned by the auctioneer’s hammer. No Government can possibly survive such onslaught. The Government and, therefore. State operations will ground to a halt and paralyzed as soon the Government will not only be bankrupt, but its constitutional and statutory duties will not be capable o f performance, and this will lead to chaos, anarchy and the breakdown o f the rule o f law. This is the rationale or the object o f the law that prohibits execution against and attachment o f Government assets and property.

The appellants, accordingly, argue and submit that, although the 1st appellant is empowered, under the Sheriffs Act, to execute for court judgments against judgment debtors, such power does not extend to executing against the Government because the Government is exempt from such execution.

The respondent highlights the second and third reliefs sought in the court below, namely, a declaration that the refusal by the 1st appellant to execute against the Government infringed the respondent’s right to an effect remedy, and a declaration that the existing practice and arrangement between the Attorney General and the 1st appellant that judgment debts against the Government be enforced using moral persuasion as opposed to the process of levying upon Government property, in the absence of any statutory legal basis, is unlawful and void. The respondent also highlights the fact that “the right to an effective remedy by a court o f law is guaranteed under section 41 (3) o f the Constitution. ..”.

The respondent argues and submits that because “ ... section 8 of the Civil Procedure (Suits by or Against the Government or Public Officers) Act allows a litigant to execute against the Government, the refusal by the 1st appellant to carry out the execution with respect to the

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two Commercial Division judgment debts is an infringement of the respondent’s right to an effective remedy; that in this case it has taken more than four years for the respondent to be paid in accordance with a consent order, and three years to be paid on default judgments; and that negotiations and moral persuasion have, therefore, not been effective as the payments to the respondent have only been made under compulsion of litigation. The respondent, accordingly, argues and submits that the court below did not err in finding that the refusal by the 1st appellant to execute against the Government is unconstitutional.

With respect to paragraph (d) o f the grounds o f appeal, namely, that “the learned Judse erred in holding that the Sheriff may be suiltv o f discrimination in electing not to execute against the Government in the absence o f legislation that specifically precludes f,the Sheriff! from executing warrants against fthel Government when the law does not provide a procedure for execution o f judgments against the Government and paragraph (e) o f the grounds o f appeal, namely, that “the learned Judge erred in holding that the !Sheriff,1 should treat private citizens and Government alike in execution o f warrants”

The appellants repeat the arguments and submissions made in relation to paragraphs (c), (g) and (i) of the grounds of appeal, and with specific reference to paragraph (d) of the grounds of appeal, namely, that “the learned Judge erred in holding that the Sheriff may be guilty o f discrimination in electing not to execute against the Government in the absence o f legislation that specifically precludes [the Sheriff] from executing warrants against [the] Government when the law does not provide a procedure for execution o f judgments against the Government”, the appellants refer to page 15 of the judgement of the court below (page 398 of the record of appeal), where the court below stated that-

“indeed in as far as the Sheriff is more than willing to execute warrants on private citizens and elects not to accord the same treatment to the government, he or she may be liable for discrimination

The appellants argue and submit that the respondent never pleaded the issue of discrimination; and that there was no evidence regarding the issue of discrimination which the court below raised in its judgement. In this regard the appellants repeat the arguments and submissions made in relation to paragraph (b) of the grounds of appeal, and again cite the case of Commercial Bank o f Malawi v Mhango (supra).

With specific reference to paragraph (e) of the grounds of appeal, namely, that “the learned Judge erred in holding that the [Sheriff] should treat private citizens and Government alike in execution o f warrants” the appellants cite the case o f Attorney General v A.G. Latif MSCA Civil Appeal No. 35 of 2003, (unreported), in which Tambala, JA made the following observations-

“Not all modes o f enforcement o f a judgment between private citizens are available for the enforcement o f a judgment against Government. That must be clearly understood by those persons who engage in business dealings with Government. There are obvious advantages and disadvantages in engaging in business dealings with Government. That is obviously one such disadvantage.It is a question o f law whether the judgment creditor is the present application should be allowed to help himself out o f the Consolidated Fund kept by the Government for the benefit o f the people o f Malawi including the judgement creditor himself. ”

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The appellants, accordingly, argue and submit that the holding by the court below that the 1st appellant was more than willing to execute against private citizens was not supported by evidence, and ought to be set aside.

The appellants further argue and submit that the decision of this Court in The Attorney General vA.G. Latif{supra), and notwithstanding that that case dealt with garnishment against Government, applies mutatis mutandis to the present case; that the applicable law in Malawi, prohibits execution against Government; that it cannot be said that the decision of the 1st appellant in refusing to execute against the Government in relation to the two Commercial Division judgment debts was discriminatory, nor could it be said that the 1st appellant acted unreasonably; and that, accordingly, it cannot be said that the 1st appellant’s refusal to execute against the Government was discriminatory, unlawful or unconstitutional.

With respect to paragraph (f) o f the grounds o f appeal, namely, that “the learned Judse erred in holding the [Sheriff! should execute asainst [the! Government on the sround that judgment debts are a charge on the Consolidated Fund"

The appellants cite a wealth of case authorities, including Presidential Reference Appeal No. 44 of 2006, MSCA (unreported); The Attorney General v Fred Nseula and Malawi Congress Party, MSCA Civil Appeal No. of 1997 (unreported) and Chakuamba and Others v Attorney General [2000-2001] MLR 16 on the interpretative function of a court in construing legislation and the Constitution in particular, and argue and submit that cardinal principle of constitutional interpretation is that the entire Constitution must be read as a whole without one provision destroying another, but sustaining the other so that one provision of the Constitution cannot destroy another, or be held to be inconsistent with another provision; and that the Constitution is a logical whole, each provision of which is an integral part thereof and it is therefore logically proper and indeed imperative to construe one part in the light of the other provisions of the Constitution.

The appellants refer to the following observation of the court below at page 16 of its judgment (page 399 of the record of appeal) -

"... it is my reading o f the Constitution that moneys to satisfy Government debts are charged on the Consolidated Fund. And unlike estimates o f expenditure to be met from the Consolidated Fund, there is no need for an Appropriation Bill to be passed as provided for in section 17[4] o f the Constitution for such moneys to be disbursed”.

Further, since judgment debts against the Government are a charge on the Consolidated Fund, it cannot be argued that the honouring o f such debts is a diversion o f public funds from their legitimate and specific objects, as appropriated by law. Indeed, judgment debts against Government have been appropriated by the supreme law o f the land by specifically charging them on the Consolidated [Fund] It thus follows that Government should be honouring judgment debts that are issued against it and that i f they remain unsatisfiedfor over three months, then execution should rightly be issued and the Sheriff should carry out his duty as commanded. ...”

The appellants repeat the arguments and submissions made in relation to paragraph (c), (g) and (i) of the grounds of appeal, and with specific reference to the cited observation of the court below, inter - alia, argue and submit that when the Constitution states that judgment debts shall be charged on the Consolidated Fund, it does not mean money so charged on the

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Consolidated Fund to settle judgment debts can be withdrawn from the Consolidated Fund without an appropriation act; that the money subject of the judgment debts would still be presented to the National Assembly; that section 173 (3) of the Constitution expressly provides that “No moneys shall be withdrawn from the Consolidated Fund except in the manner prescribed by the National Assembly,,‘, and that this means that, in accordance with section 173 (3) of the Constitution, even with respect to judgment debts, the National Assembly should prescribe the manner in which the monies should be withdrawn from the Consolidated Fund, even though the money is charged on the Consolidated Fund; that section 174 of the Constitution should not be read in isolation, but should be read alongside section 173 of the Constitution; that section 173, 174 and 177 should be read as a whole together.

The appellants cite The Attorney General v Fred Nseula and Malawi Congress Party and Presidential Reference Appeal and argue and submit that the cardinal principle of constitutional interpretation is that “the entire Constitution must be read as a whole without one provision destroying the other, but sustaining the other” and “one provision of the Constitution cannot destroy another, or be held to be inconsistent with another provision”.

The appellants also cite R (Quintavale) v Secretary o f State for Health [2003] 2 WLR 692 at 697 and argue and submit that “the court’s task, within permissible bounds o f interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context o f the statute as a whole, and the statute as a whole should be read in the historical context o f the situation which led to its enactment. ”.

The appellants further argue and submit that the applicable law in Malawi prohibits execution against Government”, and quote the following observations of Mwaungulu, J, as he then, in Tratsel Supplies Ltd v Attorney General (The Ministry o f Education) and Reserve Bank o f Malawi (supra) -

“ ... These constitutional provisions, in my most considered view put moneys in the Consolidated Fund out o f reach o f a Sheriff or his officers executing a writ o f fieri facias or creditors wanting to garnishee a debtor Government or a debtor who Government owes money and complement and augment what has always been the practice o f this Court since 1875. ... ”,

The appellants also refer to the following observations of the court below at page 9 of its judgement (page 392 of the record of appeal) -

“... However, in view o f the economic realities currently prevailing in the country, the situation is that even after money has been allocated to a ministryand department not all the money would be accessible......Government onlyspend (sic) money that is available to it, which in most cases is below the projections o f cash that the Government would have been hoping to collect.Indeed it is in this regard that we constantly hear o f ministries or departments complaining o f budget cuts. The consequence o f those budget cuts is that ministries or departments start getting into debts in the hope that there would be improvement in the funding within the particular financial year. ... ”,

The appellants argue and submit that, in the cited observation the court below actually acknowledged that not all monies charged on the Consolidated Fund or allocated to Ministries or Departments is actually available to Ministries or Departments; that expenditures are based on estimates and not actual cash flows. The appellants, accordingly, argue and submit that to insist that the 1st appellant must execute against the Government whenever a warrant of execution is issued against it, when the court below acknowledged that Government can only

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spend the money it collects, amounts to the court below insisting “on implementing the clear words used by Parliament without having any thought to the consequences, which would be absurd; and further that execution against Government through seizure of Government property would disrupt the operations of the Government.

In another breathe the appellants contend that the issues which the court below determined at page 16 of its judgment (page 399 of the record of appeal) were not pleaded by the respondent in its Form 86A and the effect of this is that the court below erred in making its determination on the issues which were not only pleaded, but also argued by the parties. The appellants argue and submit that the respondent’s pleadings were defined by the issues contained in Form 86A used in support of the application for judicial review against the 1st appellant’s decision refusing to execute against the Government, and that the respondent never amended its Form 86A.

The appellants argue and submit that issues for determination by a court, whether on points of law or fact, have to be specifically pleaded; that, the effect of this rule is, for the reasons of practice and justice and convenience, to require the party to tell his opponent what he is coming to court to prove; that the rationale for the pleadings is to set the court’s agenda from which no party to an action may deviate and to avoid surprises or ambush; and that the court also may not decide on a particular point which is not before it. In support of their arguments and submissions the appellants cite the observations of Buckely, L.J. in Re Robinson’s Settlements, Grant v Hobbs (1912) 1 Ch 717 at 728, and the case of Electoral Commission and others v Republican Party (MSCA Civil Appeal No. 14 of 2004) MWSC 2 (18 May 2004)) in which, delivering the unanimous opinion of the court, Unyolo JA, as he then was, made the following observations-

“It is trite, and there is a wealth o f authorities, that the issues for the determination o f the court should be stated clearly and expressly in the originating summons, so too reliefs sought. The reason for this is to inform the other side in advance o f the nature o f the case it has to meet and to prevent the other side being taken by surprise at the hearing. Cases are decided on issues on record.

In making its decision on this point, the lower Court appears to have relied on section 103 (2) and 108 (1) o f the Constitution, which set out the jurisdiction o f the Courts. Section 103(2) provides that the Judiciary shall have jurisdiction over all issues o f a judicial nature and shall have exclusive authority to decide whether an issue is within its competence. Section 108 (1) provides that the High Court shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.

With the greatest respect, these two sections, in our considered view, do not detract from the requirement that a party must state expressly the issues it seeks to raise and the specific reliefs sought.

We wish to go further and say on this aspect that the Court must confine Counsel’s arguments and submission to phase issues and reliefs as are particularized in the Originating Summons. The Court itself is as much bound by the issues on record as the parties are.

The finding o f this Court, on the record o f the lower Court, is that the Originating Summons does not contain, as an issue or question, what must be done with the excess ballot papers. The Originating Summons also does not

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contain, as a relief prayed for, that the ballot papers must be manually counted and the excess lodged in the custody o f the Registrar or any other third party.

The appellants also cite the cases of Likaku v Mponda 11 MLR 4 land Manica Freight Services (Malawi) Limited v Butao 11 MRL 379 and argue and submit that the effect of failure to plead issues, even if proved during trial, is that no judgement can be entered on a question not pleaded. The appellants further cite the cases of Astrovanis Cia Naviera S.A. v Linard [1972] 2 All E.R. 647 and Likaku v. Mponda (supra) and argue and submit that “the function of pleading is to carry into operation the overriding principle that the litigation between the parties, and the particularly the trial, should be conducted fairly, openly and without surprises and to reduce costs; and that, if the respondent wanted the court below to make the determination which the court below made (on page 16 of its judgment, page 399 of the record of appeal) the respondent should have applied to amend the pleadings, but this he did not do. In support of their contention the appellants also cite the following cases -

Blay v Pokard and Morris [1930] 1 KB 628 at 634 where Lord Justice Scutton said-

“Cases must be decided on the issues on the record: and i f it is desired to raise other issues they must be placed on the record by amendment. In the present case, the issue on which the Judge decided was raised by himself without amending the course o f the pleading and in my opinion was not entitled to such a c o u r s e and

Amon Mussa v Republic MSCA Criminal Appeal No. 2 of 2011 (unreported) in which the Court stated that-

“We are o f the view that the court below should have been guided by the grounds o f appeal to determine issues raised. O f course, there could be exceptional circumstances in a case which would compel a court to raise an issue to be determined. That would be appropriate only after it has invited the parties to address it. We are o f the view that the Judge misdirected himself to determine this non-existent issue on the pleadings. Hence, the DPP’s appeal on this ground is sustained”.

The gist of the appellants’ arguments and submissions, in relation to the observations of the court below at page 16 of its judgment (page 399 of the record of appeal), is that the court below should not have made determination on a matter that was not pleaded; that the court below was not called upon to make a determination on the issue of judgement debts against Government being a charge of the Consolidated Fund which had not been pleaded by the respondent; that Form 86A set the agenda for the court below; that both parties were restricted to make issues and arguments set out in the Form 86A and the objections by the appellants contained in the affidavit in opposition. There had been no application for amendment of the Form 86A by the respondent. The respondent in the notice of Form 86A clearly set the agenda for the court below and the parties. The appellants, accordingly, contend that there was, in the present case, a lack of appreciation, by the court below, of the pleadings which were relevant to determine the issues before the court below which was a fundamental error of law.

Issues for determination

Although the appellants have filed nine grounds of appeal in this matter, the principal issues to be considered revolve around, and the appeal could be conveniently determined and be disposed of by considering and determining -

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(a) whether or not the court below had jurisdiction to hear and determine the respondent’s application for judicial review with respect to the refusal by the 1st appellant to levy execution against the Government in order to enforce the two judgment debts entered against the Government in Commercial Case No. 39 of 2012 in the Lilongwe Commercial Division and Commercial Case No. 71 of 2014 in the Blantyre Commercial Division to procure the settlement of those debts; and related to this issue is whether: (i) the judicial review proceedings in the court below were, or related to, a “commercial matter”; and (ii) the respondent’s complaint or grievance against the 1st appellant in the court below was amenable to judicial review; and

(b) whether the applicable law in Malawi allows for execution against Government whether by way of a writ offieri facias or indeed garnishment; and in this case whether the 1st appellant may lawfully levy execution against Government property in order to enforce judgment debts entered against the Government.

Determination

Jurisdiction o f Commercial Divisions o f the High Court

The jurisdiction of Commercial Divisions of the High Court, including the court below, at the time that the judicial review proceedings in the court below were instituted, heard and determined, was provided in Order 1, rule 4 (2) and (3), rule 5 and rule 6 of the High Court (Commercial Division) Rules.

Order 1, rule 4 (2) and (3) of the High Court (Commercial Division) Rules provided asfollow-

“(2) Subject to Order 1, rule 3, no proceedings shall be commenced in the Commercial Division unless the same relates to a commercial matter.

(3) No commercial matter over which the Commercial Division has jurisdiction in terms o f these Rides shall be commenced in any other Court or Division o f the High Court”.

Order 1, rule 6 of the High Court (Commercial Division) Rules provided as follows-

“<5. Subject to these Rules, or any other written law, the Commercial Division shall have jurisdiction to deal with, try and determine any commercial matter whereof the amount in dispute or the value o f the subject matter is not less than one million Kwacha (Kl, 000,000):

Provided that where the matter concerns bankruptcy, winding up o f a company or other applications related to commercial matters the amount in dispute or the value subject matter shall not matter.”.

The term “commercial matter” was defined in Order 1, rule 5 of the High Court (Commercial Division) Rules as follows-

“ “commercial matter” means a civil matter o f commercial significance arising out o f or connected with any relationship o f a commercial or business nature, whether or not, including but not limited to-

(a) the formation or governance o f a business or commercial organization;

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(b) the contractual relationship o f a business or commercial organization(c) liabilities arising from commercial or business or transactions;(d) the restructuring or payment o f commercial debt;(e) the winding up o f companies or bankruptcy ofpersons;(f) the enforcement or review o f arbitration awards;(g) the enforcement o f foreign judgments o f commercial matters subject to the provisions o f the law;(h) the supply or exchange o f goods or services;(i) banking, negotiable instruments, international credit and similar financial services;(j) insurance services; or(k) the operation o f stock andforeign markets.

In the event o f any doubt as to whether a matter is commercial or not, the Judge at the outset or during the cause o f action, shall have the power to resolve the issue o f opinion and the Judge’s decision shall be final. ”.

It is clear from Order 1, rule 4 (2) and (3) of the High Court (Commercial Division) Rules that no proceedings could have been commenced in the Commercial Division unless they relate to a commercial matter, and further that no commercial matter over which the Commercial Division has jurisdiction in terms of these Rules shall be commenced in any other Court or Division of the High Court. As stated by Mbendera, JA, in HetherwickMbale v Histon Maganga (supra)-

“34. Put differently, does the fact that every High Court judge has unlimited original jurisdiction in the civil matters justify a litigant to a file a non­commercial matter in the Commercial Division o f the High Court. It is significant that 0.1, rr. 4(2) and 5 o f the Rules prohibit the commencement o f non-commercial matters in the Commercial Division. It is the division that is prohibitedfrom handling non-commercial matters. The High Court judges who sit in that court would pro tanto be similarly prohibited while sitting as Commercial Division Judges.

35. This does not mean such judges can never handle other matters. They can do so. As a matter o f fact judges o f the Commercial Division regularly do so.But in order to handle non-commercial matters, such judges should go to the division that has jurisdiction to handle the non-commercial matters. Such matters are filed and processed in that other division.".

It is also clear from Order 1, rule 6 of the High Court (Commercial Division) Rules that a Commercial Division of the High Court had jurisdiction to deal with, try and determine only commercial matters where the amount in dispute or the value of the subject matter is not less than one million Kwacha (K 1,000,000). The term “commercial matter” was, of course, defined widely; but for the Commercial Division to have jurisdiction to deal with, try and determine a matter it must, nevertheless, be or relate to a commercial matter.

In the present case it is conceded that the proceedings in the court below were about a decision or refusal by the 1st appellant not to enforce the two judgements of the Commercial Division; it is not in dispute that the 1st appellant refused to enforce the two judgment of the Commercial Division by not executing the warrants on Government; it is also not in dispute that it is the duty of the court that renders the judgments to ensure that its judgments are

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enforced. However, in arriving at the conclusion that the proceedings before it were, or related to, a commercial matter the court below seems to have based its decision primarily on its duty to ensure that judgments rendered by Commercial Divisions of the High Court are enforced. The court below did not sufficiently consider whether the matter was in fact a commercial matter, or whether there was in fact a commercial relationship between the parties. The court below completely ignored or under rated the fact that Commercial Divisions of the High Court have jurisdiction to deal with, try and determine only commercial matters.

The matter before the court below was essentially about the 1st appellant’s decision or refusal not to execute against the Government; the challenge against the 1st appellant is the refusal to execute against the Government. Order 1, rule 5 of the High Court (Commercial Division) Rules (which was applicable at the time of the commencement, hearing and determination of the judicial review proceedings in the court below) provided that a commercial matter is civil matter of commercial significance arising out of or connected with any relationship of commercial or business nature, whether contractual or not. In this case, despite the fact that the judicial review proceedings related to a decision by the 1st appellant not to enforce the two judgments of the Commercial Division; that the 1st appellant refused to enforce the two judgments of the Commercial Division by not executing the warrants on Government; and further that it is the duty of the court that renders the judgments to ensure that the same is enforced, it is clear that there was no commercial relationship between the 1st appellant and the respondent. The documentation in court below does not disclose any commercial relationship between the 1st appellant and the respondent. Indeed, judicial review proceeding before the court below bore a different case number from the proceedings of the judgments sought to be enforced, and the 1st appellant was not a party to the two judgments of the Commercial Division. The judicial review proceedings, although related to the enforcement of two judgments of the Commercial Division, were independent and distinct from the commercial transaction between the Government, acting through the Malawi Prison Service, and the respondent.

The respondent argues and submits that, in accordance with Order 1, rule 5 of the High Court (Commercial Division) Rules, the determination by the court below that the matter was commercial matter was final; and that the issue is “moot as it cannot have the effect of overturning the judgment of the [court below]”. However, that does not or should not mean that this Court may not consider all the evidence that was before the court below and come to its own conclusion. Indeed, in accordance with Order III rule 2 of the Supreme Court of Appeal Rules, in this Court all appeals shall be by way of rehearing; that entails a fresh assessment of all the evidence and material that was before the court below on issues raised by the appeal. In rehearing, this Court will look at the issues raised by the appeal, guided by the grounds of appeal. This Court is not impeded, and may make its own conclusions on that evidence or material, and issues that were before the court below; and the conclusions of this Court may not necessarily be the same or coincide with those arrived at by the court below (see: Mtemadanga Distributors Limited v Electricity Supply Commission o f Malawi Limited MSCA Civil Appeal No. 57 of 2017).

On the facts of this case it is clear that the judicial review proceedings in the court below were not a commercial matter in respect of which the court below had jurisdiction, in accordance with Order 1, rule 4 (2) and (3), rule 5 and rule 6 of the High Court (Commercial Division) Rules. The court below wrongly assumed jurisdiction and made a determination in proceedings on a subject matter in respect of which it did not have jurisdiction; the court below should have transferred the proceedings to the General Division of the High Court. Paragraph

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(a) of the grounds of appeal, namely, that “the Judge erred in holding that this is a commercial matter” is, accordingly, sustained.

Execution asainst the Government

The issue whether the applicable law in Malawi allows for execution against Government, whether by way of a writ of fieri facias or indeed garnishment, and in this case whether the 1st appellant may lawfully levy execution against Government property in order to enforce judgment debts entered against the Government was thoroughly considered and determined in Casalee Cargo Ltd v Attorney General (supra) and Tratsel Supplies Ltd v. Attorney General (The Ministry o f Education) and Reserve Bank o f Malawi (supra). In Casalee Cargo Ltd v Attorney General (supra) Mwaungulu, J, as he then was, correctly held that in Malawi -

“execution is covered by section 29 o f the Courts Act which provides: Save as otherwise provided in this Act, the practice and procedure o f the High Court shall, so far as local circumstances admit, be the practice and procedure (including the practice and procedure relating to execution) provided in the Rules o f the Supreme Court....".

In Tratsel Supplies Ltd v Attorney General (The Ministry o f Education) and Reserve Bank o f Malawi (supra) Mwaungulu, J, as he then was, also correctly held that the applicable law in Malawi does not allow for execution against Government whether by way of a writ of fieri facias or indeed garnishment; and a judgment creditor cannot lawfully levy execution against Government property in order to enforce judgment debts entered against the Government.

"... Order 77, rule 15 o f the Rules o f the Supreme Court provides that warrants o f execution do not apply in respect o f Government. Order 77, Rule 15 (2) provides that satisfaction o f orders against Crown should be in accordance with section 25 o f the Crown Proceedings Act 1974. This Act has not been applied to Malawi. Section 25 follows, however, closely sections 13 and 16 o f the Petition o f Rights Act, 1860. This is a Statute o f General Application before 1902. It is part o f our law. ...

Order 77, Rule 15 conferring Government immunity from execution does not, according to section 29 (1) o f the Courts Act, base solely on section 25 o f the Crown Proceedings Act, 1947. Besides basing on our Civil Procedure (Suits by or Against Government or Public Officers) Act, the limitation in Order 77, Rule 15 applied generally before the Crown Proceedings Act, 1947. A similar rule existed before the Crown Proceedings Act, 1947 under the Supreme Court o f Appeal Judicature Act 1875 and the Petition o f Right Act, 1860, both statutes o f general application before 1902. Order 77, Rule 15 predates the Crown Proceedings Act, 1947 and emanates as an independent rule o f court.

That it is independent rule o f court is important for another point which I want to make because o f some comments in Tayamba General Dealers v Attorney General and Apex Car Sales v Attorney General: the modes o f executing judgements in Orders 45 to 52 in the Rules o f the Supreme Court (formerly Orders XLI to XLIX) are creatures o f the Rules o f Court; the same Rules o f Court, since 1875 and up to 1947, excludes their application to Government,Judges o f the Court, who initially made the rules, reacted to public concerns, we see shortly and the prevailing constitutional arrangements favouring

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Government immunity against execution. Those constitutional and public policy concerns arise in the argument o f this appeal and are eruditely accentuated by my learned colleagues in this Court. The choices were made then that still rule us today. The choices were then generally universal and are today in favour ofprotecting all public property from execution. In relation to money in the Consolidated Fund there is no room for a choice. The Constitution proscribes withdrawals from the Consolidated Fund, even when money is in the bank, except by appropriation according to the Constitution. Although Government should respect court judgments, the Constitution prescribes that money required for judgments against Government should, following proper procedure, be charged to the Consolidated Fund. These constitutional provisions, in my most considered view, put moneys in the Consolidated Fund out o f reach ofa sheriffor his officers executing a writ o f fierifacias or creditors wanting to garnishee a debtor Government or debtor who Government owes money and complement and augment what has always been the practice o f this Court since 1875 and until Tayamba General Dealers v Attorney General and Apex Car Sales v Attorney General that Orders 45 to 52 do not apply to judgment against Government. This rendition o f the constitutional provisions coheres with the universality o f the principle under foreign case law referred to as section 11 (2) (c) o f the Constitution exhorts.".

The applicable law in Malawi does not allow for execution against Government whether by way of a writ offieri facias or indeed garnishment; and a judgment creditor cannot lawfully levy execution against Government property in order to enforce judgment debts entered against the Government.

As observed in Commissioner o f Public Highways v San Diego (supra), the rule or practice that Government funds and properties may not be seized under writs o f garnishment to satisfy such judgments, is based on obvious considerations ofpublic policy. ... The functions and public services rendered by the State cannot be paralyzed or disrupted by the diversion o f public funds from their legitimate and specific objects as appropriated by law... Furthermore, as rightly observed in Kisya Investments limited v Attorney General (supra)-

“__Any payment by the Government must be covered by some appropriation....No Ministry or Department has any ready funds at all times to satisfy decrees or judgments. While the existence o f claims and decrees may be known to Ministries and Departments, they have to notify the Ministry o f Finance and the Treasury o f the same so that payment is arrangedfor or provisions made in the Government expenditure. The second situation which arises from the above, is that once a decree or judgment is obtained against the Government, it would require some reasonable time to have it forwarded to the Ministry o f Finance, Treasury, Comptroller and Auditor General, etc for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their “own ” funds to settle such decrees or payments considering the nature o f the Government structure, procedures, red tape and large number o f claims, this could take a long time. I f execution and/or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing o f decrees andjudgments and will be inundated with executions and attachments o f its assets day in and day out. Its buildings will be attached and its plant and equipment will be attached; its furniture and office equipment will be attached; its vehicles, aircraft, ship and

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boats will be attached. There will be no end to the list o f likely assets to be attached and auctioned by the auctioneer’s hammer. No Government can possibly survive such onslaught. The Government and, therefore. State operations will ground to a halt and paralyzed as soon the Government will not only be bankrupt, but its constitutional and statutory duties will not be capable ofperformance, and this will lead to chaos, anarchy and the breakdown o f the rule o f law. This is the rationale or the object o f the law that prohibits execution against and attachment o f Government assets and property. ... ”.

Thus, although the 1st appellant is empowered, under the Sheriffs Act, to execute for court judgments on judgment debtors, such power does not extend to executing against the Government because the Government is exempt from such execution.

The respondent argues and submits that the refusal by the 1st appellant to execute against the Government infringed the respondent’s right to an effect remedy; “the right to an effective remedy by a court o f law is guaranteed under section 41 (3) o f the Constitution. ..”; and that the existing practice and arrangement between the Attorney General and the 1st appellant that judgment debts against the Government be enforced using moral persuasion as opposed to the process of levying upon Government property, in the absence of any statutory legal basis, is unlawful and void. The respondent argues and submits that “where ... section 8 of the Civil Procedure (Suits by or Against the Government or Public Officers) Act allows a litigant to execute against the Government, a refusal by a statutory appointee (in this case the 1st appellant) to carry out the execution is an infringement of the right to an effective remedy”; that in this case it has taken more than four years for the respondent to be paid in accordance with a consent order, and three years to be paid on default judgments; and that negotiations and moral persuasion have, therefore not been effective as the payments to the respondent have only been made under compulsion of litigation. The respondent, accordingly, argues and submits that the court below did not err in finding that the refusal by the 1st appellant to execute against the Government is unconstitutional.

The respondent is obviously mistaken: to start with, in accordance with the applicable law in Malawi, the respondent has no right to execute against the Government; this issue was definitely and conclusively settled in Tratsel Supplies Ltd v Attorney General (The Ministry o f Education) and Reserve Bank o f Malawi (supra). It cannot, therefore, be argued and submitted, as the respondent does, that by refusing to execute against the Government the 1st appellant infringed the respondent’s right to an effect remedy. The respondent is also mistaken that there is no statutory legal basis for prohibiting execution against the Government when the applicable Rules of the Supreme Court prohibit execution against the Government. Furthermore, as pointed out in Tratsel Supplies Ltd v Attorney General (The Ministry o f Education) and Reserve Bank o f Malawi (supra) “the Constitution proscribes withdrawals from the Consolidated Fund ... even when money is in the bank, except by appropriation according to the Constitution. Although Government should respect court judgements, the Constitution prescribes that money required for judgments against Government should, following proper procedure, be charged to the Consolidated Fund. These constitutionalprovisions....put moneys in the Consolidated Fund out o f reach o f a sheriff or his officersexecuting a writ o f fieri facias or creditors wanting to garnishee a debtor Government or debtor who Government owes money and complement and augment what has always been the practice o f this Court since 1875... ”

It is quite clear from the record of appeal that the court below did not consider, or at least properly consider, whether the applicable law in Malawi allows for execution against Government, whether by way of a writ offieri facias or indeed garnishment; and whether, in

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this case, the 1st appellant could lawfully have levy execution against Government property in order to enforce judgment debts entered against the Government. The statement at page 15 of the judgment of the court below (page 398 of the record of appeal), that in as far as the Sheriff is more than •willing to execute warrants on private citizens and elects not to accord the same treatment to the Government, he or she may be liable for discrimination ” is erroneously based the premise that the applicable law in Malawi allows for execution against Government. Furthermore, the court below failed to sufficiently appreciate the observations of Tambala, JA in Attorney General v A.G. Latif (supra) that-

uNot all modes o f enforcement o f a judgement between private citizens are available for the enforcement o f a judgment against Government. That must be clearly understood by those persons who engage in business dealings with Government. There are obvious advantages and disadvantages in engaging in business dealings with Government. That is obviously one such disadvantage.It is a question o f law whether the judgment creditor in the present application should be allowed to help himself out o f the Consolidated Fund kept by the Government for the benefit o f the people o f Malawi including the judgement creditor himself.

The decision of this Court in The Attorney General v A.G. Latif (supra), and notwithstanding that that case dealt with garnishment against Government, applies mutatis mutandis to the present case. It cannot be said that the conduct of the 1st appellant was discriminatory, and it cannot also not be said that the 1st appellant acted unreasonably. Finally, it cannot be said that the 1st appellant’s conduct in refusing to execute against the Government was discriminatory, unlawful or unconstitutional, as found by the court below, or at all. Paragraph (c) of the grounds of appeal, namely, that “the learned Judge erred in holding that the practice by the [Sheriff] to use moral persuasion to enforce judgments against the Government was unconstitutionalparagraph (g) of the grounds of appeal, namely, that “the learned Judge erred in holding that the decision o f the Sheriff was unconstitutional and lacking in legal basis'”; paragraph (h) of the grounds of appeal, namely, that “the learned Judge erred in holding that there is no law that precludes the Government from execution ofjudgments by the Sheriff'; and paragraph (i) of the grounds of appeal, namely, that “the learned Judge erred in ordering and/or compelling the Sheriff to execute against the Government” are, accordingly, sustained.

Judicial review as a means o f enforcement o f judgment debts

As indicated earlier in this judgment this is essentially an appeal against the decision of the court below, injudicial review proceedings, compelling the 1st appellant to execute a writ of fieri facias against the Government with respect to the two judgments of the Commercial Division. It is pertinent to note that, at the time of the commencement of the judicial review proceedings in court below, there were subsisting in relation to the two Commercial Division judgment debts court orders against the Government to pay the judgment debts within 60 days and 30 days, respectively (page 385 of the record of appeal). Why the respondent opted not to enforce the subsisting court orders, but levy execution against the Government is not clear.

The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision­making process itself. As a matter of principle enforcement of judgment cannot be by way of judicial review - because there are specific procedures for enforcing a judgment such as garnishment, issuance of warrants of execution or indeed contempt proceedings. In this matter it is clear that the court below mistook judicial review proceedings for execution proceedings,

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or equated judicial review proceedings to execution proceedings. The judicial review proceedings against the 1st appellant were misconceived, and so was the mandamus sought against the 1st appellant. The mandamus sought against the 1st appellant should, perhaps, have been sought against the appropriate officer in Government who had the duty or responsibility to ensure that the judgment debts herein against the Government are paid. In this regard, the case of Republic v The Attorney General & Another - Ex parte James Alfred Koroso (supra) is instructive:

“The institution o f judicial review proceedings in the nature o f mandamus cannot be equated with execution proceedings. In seeking an order for mandamus the applicant is seeking, not relief against Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relieve sought is not “execution o f attachment or process in the nature thereof” it is not sought to make any persons “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out o f the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty case upon him by Parliament.”.

Furthermore, in this case it is apparent that the respondent, despite having the right to enforce the subsisting court orders against the Government to pay the two judgment debts within 60 days and 30 days, respectively, sought to enforcement of judgment debts by judicial review. It is also apparent that the court below did not sufficiently consider whether the matter before it was amenable to judicial review, and whether it was appropriate, in the first place to grant leave to apply for judicial review - particularly having regard to the fact that the respondent could, if he was so minded, have enforced the subsisting court orders against the Government to pay the two judgment debts within 60 days and 30 days, respectively, against the appropriate officer in Government who had the duty or responsibility to ensure that the judgment debts herein against the Government are paid.

To the extent that the respondent could, if he was so minded, have enforced the subsisting court orders against the Government to pay the two judgment debts within 60 days and 30 days, respectively, against the appropriate officer in Government who had the duty or responsibility to ensure that the judgment debts herein against the Government are paid, the respondent had an alternative remedy to judicial review, and leave to apply for judicial review should not have been granted by the court below. In any event, the respondent’s grievance or complaint could not be addressed by the institution ofjudicial review proceedings in the nature of mandamus equated with execution proceedings.

Judgment debts charged on the Consolidated Fund

At page 16 of its judgment of the court below (page 399 of the record of appeal), where the court below observed that-

“it is my reading o f the Constitution that moneys to satisfy Government debts are charged on the Consolidated Fund. And unlike estimates o f expenditure to be met from the Consolidated Fund, there is no need for an Appropriation Bill to be passed as provided for in section 17[4] o f the Constitution for such moneys to be disbursed

Further, since judgment debts against the Government are a charge on the Consolidated Fund, it cannot be argued that the honouring o f such debts is a diversion o f public funds from their legitimate and specific objects, as

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appropriated by law. Indeed, judgment debts against Government have been appropriated by the supreme law o f the land by specifically charging them on the Consolidated [Fund] It thus follows that Government should be honouring judgment debts that are issued against it and that i f they remain unsatisfiedfor over three months, then execution should rightly be issued and the Sheriff should carry out his duty as commanded. ”.

The court below seems to take the view that because, in accordance with section 174 of the Constitution, “all moneys required to satisfy any judgment, decision or award made or given against Government by any court ... shall be charged on the Consolidated Fund” debts are charged on the Consolidated Fund, there is no need for an Appropriation Bill to be passed for such moneys to be disbursed”. The view expressed by the court below overlooks the fact that every payment by the Government must be covered by some appropriation. Indeed, Ministries and Departments may not have ready funds at all times to satisfy decrees or judgments, and while the existence of claims and decrees may be known to Ministries and Departments, they may have to notify the Ministry of Finance and the Treasury of the same so that payment is arranged for or provisions made in the Government expenditure.

It is apparent from the record of appeal that the court below did not sufficiently appreciate and apply a cardinal and now well settled principle that when considering a constitutional provision, the entire Constitution must be read as a whole without one provision destroying the other but sustaining the other so that “one provision of the Constitution should not destroy another, or be held to be inconsistent with another provision”; and that the Constitution is a logical whole, each provision of which is an integral part thereof and it is, therefore, logically proper and indeed imperative to construe one part in the light of the other provisions.

Thus, when section 174 of the Constitution states that judgement debts shall be charged on the Consolidated Fund, it cannot mean that moneys so charged on the Consolidated Fund to settle judgment debts can be withdrawn from the Consolidated Fund without an Appropriation Act. Moneys to settle judgement debts would still be presented to the National Assembly because that section 173 (3) of the Constitution expressly provides that “ ho moneys shall be withdrawn from the Consolidated Fund except in the manner prescribed by the National Assembly”. Therefore, in accordance with section 173 (3) of the Constitution, even with respect to judgement debts, the National Assembly must prescribe the manner in which the monies should be withdrawn from the Consolidated Fund, notwithstanding that the money is charged on the Consolidated Fund. Section 174 of the Constitution should not be read in isolation, but should be read alongside section 173 of the Constitution.

To the extent that, in relation to the phrase “moneys required to satisfy any judgment, decision or award made or given against Government by any court”, the court below held that “there is no need for an Appropriation Bill to be passed ... for such moneys to be disbursed” the court below erred. Paragraph (f) of the grounds of appeal, namely, that “the learned Judge erred in holding the Sheriff should execute against the Government on the ground that judgment debts are a charge on the Consolidated Fund” is, accordingly, sustained.

Assumptions

At page 10 of its judgment (page 393 of the record of appeal) the court made the following observations-

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I would assume that there was an agreement between the Ministry o f Finance and the Malawi Prison Service that the latter would be allocated moneys to purchase uniforms. I would also assume that there would have been agreement on the projected costs o f the said uniforms. In this regard I would further assume that the capacity o f the Government to afford to pay for the uniforms was also considered. Indeed I would thus conclude that it is only after agreeing on the projected cost that funds would have been allocated to the Malawi Prison Service so that they could procure the uniforms. I am also mindful o f the fact that Government has set down procedures for approving procurements at different levels, which must be strictly followed. The conclusion in this instance would thus be that the Malawi Prisons Service went ahead to obtain the uniforms from the Applicant after being assured that the money was available to pay for the same and after the procurement o f uniforms had been approved. ..”.

The appellants contend that the court below made assumptions and not proved facts: that (i) there was an agreement between the Ministry of Finance and the Malawi Prison Service on the projected costs of the uniforms; and (ii) that the capacity of the Government to afford to pay [for] the uniforms had been considered and agreed by the Ministry of Finance and the Malawi Prison Service”. The appellants contend that the court below erred by making a judgment based on those assumptions. The appellants argue and submit that the assumptions, and therefore, also the conclusions of fact by the court below reflected on page 10 of its judgment were not supported by evidence; and that the court below erred in drawing conclusions and making judgment based on unsupported facts and assumptions.

The respondent concedes that neither the appellants nor the respondent, in their affidavits filed in the court below, raised the facts which are the subject of this ground of appeal. However, the respondent argues and submits that the assumptions that the appellants complain about “were mere obiter dicta and not the basis o f the conclusion that execution can [be levied] against the Government; [and that] consideration o f those assumptions cannot affect the outcome o f the matter. ...”.

It is certainly a well settled fundamental legal principle that in enforcing laws, the Judiciary must act in an independent and impartial manner, and must enforce the law having regard only to legally relevant facts and the prescriptions of the law. Section 9 of the Constitution enjoins that principle in our jurisdiction. Therefore, it is the duty of every Judge in deciding a case to evaluate the evidence before him or her and the relevant law in order to arrive at a correct decision, and to ensure that cases are decided on the evidence before the court and the relevant law. Judges should never be influenced by their personal knowledge and should most certainly not base their decisions on assumptions.

Although it is not clear from the record of appeal whether, and if so, the extent to which, the judgment of court below may have been influenced by the assumptions that (i) there was an agreement between the Ministry of Finance and the Malawi Prison Service on the projected costs of the uniforms; and (ii) that the capacity of the Government to afford to pay [for] the uniforms had been considered and agreed by the Ministry of Finance and the Malawi Prison Service”, it is certainly appropriate for this Court to reiterate that the well settled constitutional and fundamental legal principle that in enforcing laws, the Judiciary must act in an independent and impartial manner, and must enforce the law having regard only to legally relevant facts and the relevant law, as required by section 9 of the Constitution. Therefore, the duty of every Judge in deciding a case is to evaluate the evidence before him or her and the relevant law in

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order to arrive at a correct decision, and that cases must be decided on the evidence before the court and the relevant law. Judges should never be influenced by their personal knowledge and should most certainly not base their decisions on assumptions.

Pleadings

At page 15 of the judgement of its judgment (page 398 of the record of appeal) the court below stated that-

“ ... in as far as the Sheriff is more than willing to execute warrants on private citizens and elects not to accord the same treatment to the Government, he or she may be liable for discrimination.

The appellants argue and submit that the respondent never pleaded the issue of discrimination; and that there was no evidence regarding the issue of discrimination which the court below raised in its judgement. In this regard the appellants repeat the arguments and submissions made in relation to paragraph (b) of the grounds of appeal, and again cite the case of Commercial Bank o f Malawi v Mhango (supra).

At page 16 of its judgement (page 399 of the record of appeal) the court below statedthat-

“it is my reading o f the Constitution that moneys to satisfy Government debts are charged on the Consolidated Fund. And unlike estimates o f expenditure to be met from the Consolidated Fund, there is no need for an Appropriation Bill to be passed as provided for in section 17[4J o f the Constitution for such moneys to be disbursed.

Further, since judgment debts against the Government are a charge on the Consolidated Fund, it cannot be argued that the honouring o f such debts is a diversion o f public funds from their legitimate and specific objects, as appropriated by law. Indeed, judgment debts against Government have been appropriated by the supreme law o f the land by specifically charging them on the Consolidated [Fund] It, thus, follows that Government should be honouring judgment debts that are issued against it and that i f they remain unsatisfied for over three months, then execution should rightly be issued and the Sheriff should carry out his duty as commanded. ”.

The appellants contend that the issues which the court below determined at page 16 of its judgment were not pleaded in the court below by the respondent in its Form 86A and the effect of this is that the court below erred in making its determination on the issues which were not only pleaded, but also argued by the parties. The appellants argue and submit that the respondent’s pleadings were defined by the issues contained in Form 86A used in support of the application for judicial review against the 1st appellant’s decision refusing to execute against the Government, and that the respondent never amended its Form 86A; that issues for determination by a court, whether on points of law or fact, have to be specifically pleaded; that the effect of this rule is, for the reasons of practice and justice and convenience, to require the party to tell his opponent what he is coming to court to prove; that the rationale for the pleadings is to set the court’s agenda from which party to an action may deviate so as to avoid surprises or ambush; and that the court also may not decide on a particular point which is not before it; and that the effect of failure to plead issues, even if proved during trial, is that no judgement can be entered on a question not pleaded.

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The appellants’ arguments and submissions both in relation to the observations of the court below at page 15 of its judgment (page 398 of the record of appeal) and at page 16 of its judgement (page 399 of the record of appeal) are quite interesting. However, having already determined, in relation to the observations of the court below at page 15 of its judgment, that the 1st appellant’s decision in refusing to execute against the Government was neither discriminatory, unlawful nor unconstitutional, as found by the court below, or at all, it does not seem necessary or appropriate to further consider and determine this issue. Furthermore, having already determined, in relation to the observations of the court below at page 16 of its judgment, that “to the extent that the court below, in relation to “moneys required to satisfy any judgment, decision or award made or given against Government by any court”, held that “there is no need for an Appropriation Bill to be passed ... for such moneys to be disbursed”, the court below erred, it does not seem necessary or appropriate to further consider and determine this issue.

Conclusion

Jurisdiction o f Commercial Divisions o f the High Court

It is clear from Order 1, rule 4 (2) and (3) and rule 5 of the High Court (Commercial Division) Rules (applicable at the commence, hearing and determination of the judicial review proceedings in the court below) that no proceedings could be commenced in a Commercial Division of the High Court, including the court below, unless the proceedings relate to a commercial matter. It is also clear from Order 1, rule 6 of the Rules that a Commercial Division had jurisdiction to deal with, try and determine only commercial matters. The term “commercial matter” was, of course, defined widely; but for the Commercial Division to have jurisdiction to deal with, try and determine a matter it must be, nevertheless, a commercial matter.

The judicial review proceedings in the court below related to a decision or refusal by the 1st appellant not to enforce the two Commercial Division judgment debts by not executing the warrants of execution against the Government. The matter before the court below was essentially about the 1st appellant’s decision or refusal not to execute warrants of execution against the Government; the challenge against the 1st appellant is the refusal to execute against the Government. Order 1, rule 5 of the High Court (Commercial Division) Rules (which was applicable at the time of the commencement, hearing and determination of the judicial proceeding in court below) provided that a commercial matter is civil matter of commercial significance arising out of, or connected with, any relationship of commercial or business nature, whether contractual or not. The documentation in the court below does not disclose any commercial relationship between the 1st appellant and the respondent. The judicial review proceedings, although related to the enforcement of two judgments of the Commercial Division, were independent and distinct from the commercial transaction between the Government, acting through the Malawi Prison Service, and the respondent.

It is clear that the judicial review proceedings in the court below were not a commercial matter in respect of which the court below had jurisdiction. The court below wrongly assumed jurisdiction and made a determination in proceedings on a subject matter in respect of which it did not have jurisdiction; and the court below should have transferred the proceedings to the General Division of the High Court. Paragraph (a) of the grounds of appeal is, accordingly, sustained.

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Execution against the Government

The decisions of the High Court in Casalee Cargo Ltd v Attorney General (supra) and Tratsel Supplies Ltd v. Attorney General (The Ministry o f Education) and Reserve Bank o f Malawi (supra) correctly set out the applicable law in Malawi with respect to execution against the Government. The applicable law in Malawi does not allow for execution against Government whether by way of a writ of fieri facias or indeed garnishment; and a judgment creditor cannot lawfully levy execution against Government property in order to enforce judgment debts entered against the Government. Thus, although the 1st appellant is empowered, under the Sheriffs Act, to execute for court judgments on judgment debtors, such power does not extend to executing against the Government because the Government is exempt from such execution.

It is quite clear from the record of appeal that the court below did not properly consider whether the applicable law in Malawi allows for execution against Government, whether by way of a writ offieri facias or indeed garnishment; and whether, in this case, the 1st appellant could lawfully have levied execution against Government property in order to enforce judgment debts entered against the Government. Paragraphs (c), (g), (h) and (i) of the grounds of appeal are, accordingly, sustained.

Judicial review as a means o f enforcement o f judgment

At the time of the commencement hearing and determination of the judicial review proceedings in court below, there were subsisting in relation to the two Commercial Division judgment debts court orders against the Government to pay the judgment debts within 60 days and 30 days, respectively. The respondent opted not to enforce the subsisting court orders but levy execution against the Government.

The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision­making process itself. As a matter of principle enforcement of judgement cannot generally be by way of judicial review, because there are specific procedures for enforcing a judgment such as garnishment, issuance of warrants of execution or indeed contempt proceedings. The court below erroneous mistook judicial review proceedings for execution proceedings, or equated judicial review proceedings with execution proceedings. The judicial review proceedings against the 1st appellant were misconceived, and so was that the mandamus sought against the 1st appellant. Furthermore, the respondent erroneously sought to enforcement of judgment debts by judicial review. The court below did not sufficiently consider whether the matter before it was amenable to judicial review, and whether it was appropriate, in the first place to grant leave to apply for judicial review - particularly having regard to the fact that the respondent could, if he was so minded, have enforced the subsisting court orders against the Government to pay the two judgment debts within 60 days and 30 days, respectively, against the appropriate officer in Government who had the duty or responsibility to ensure that the judgment debts herein against the Government are paid.

To the extent that the respondent could, if he was so minded, have enforced the subsisting court orders against the Government to pay the two judgment debts within 60 days and 30 days, respectively, against the appropriate officer in Government who had the duty or responsibility to ensure that the judgment debts herein against the Government are paid, the respondent had an alternative remedy to judicial review. The court below should not have granted the respondent’s application for leave for judicial review. In any event, the

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respondent’s grievance or complaint could not be addressed by the institution of judicial review proceedings in the nature of mandamus equated with execution proceedings.

Judgment debts charged on the Consolidated Fund

Although section 174 of the Constitution states that judgement debts shall be charged on the Consolidated Fund, moneys so charged on the Consolidated Fund to settle judgment debts cannot be withdrawn from the Consolidated Fund without an Appropriation Act. Moneys to settle judgement debts would still be presented to the National Assembly because that section 173 (3) of the Constitution expressly provides that “no moneys shall be withdrawn from the Consolidated Fund except in the manner prescribed by the National Assembly". Therefore, in accordance with section 173 (3) of the Constitution, even with respect to judgment debts, the National Assembly must prescribe the manner in which the monies should be withdrawn from the Consolidated Fund, notwithstanding that the money is charged on the Consolidated Fund. Section 174 of the Constitution should not be read in isolation, but should be read alongside section 173 of the Constitution.

To the extent that, in relation “to moneys required to satisfy any judgment, decision or award made or given against Government by any court ”, the court below held that that “there is no need for an Appropriation Bill to be passed ...for such moneys to be disbursed” the court below erred. Paragraph (f) of the grounds of appeal is, accordingly, sustained.

Assumptions

It is not clear from the record of appeal whether, and if so, the extent to which, the judgment of court below may have been influenced by the assumptions that there was an agreement between the Ministry of Finance and the Malawi Prison Service on the projected costs of the uniforms; and that the capacity of the Government to afford to pay for the uniforms had been considered and agreed by the Ministry of Finance and the Malawi Prison Service”. It is, nevertheless, appropriate for this Court to reiterate the well settled fundamental legal principle that in enforcing laws, the Judiciary must act in an independent and impartial manner, and must enforce the law having regard only to legally relevant facts and the relevant law, as required by section 9 of the Constitution. Judges should never be influenced by their personal knowledge and should most certainly not base their decisions on assumptions.

Pleadings

In relation to the observations of the court below at page 15 of its judgment (page 398 of the record of appeal), the appellants argue and submit that the respondent never pleaded the issue of discrimination; that there was no evidence regarding the issue of discrimination which the court below raised in its judgement; and the court below should not have considered the issue at all. Similarly, in relation to the observations of the court below at page 16 of its judgement (page 399 of the record of appeal) the appellants contend that the issues which the court below determined were not pleaded by the respondent, and the court below erred in making its determination on the issues which were not only pleaded, but also argued by the parties.

However, having already determined, in relation to the observations of the court below at page 15 of its judgment, that the 1st appellant’s decision in refusing to execute against the Government was neither discriminatory, unlawful nor unconstitutional, as found by the court below, or at all, it does not seem necessary or appropriate to further consider and determine this issue. Furthermore, having already determined, in relation to the observations of the court below at page 16 of its judgment that “to the extent that the court below held that, in relation

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s

to moneys required to satisfy any judgment, decision or award made or given against Government by any court, “there is no needfor an Appropriation Bill to be passed... for such moneys to be disbursed” the court below erred, it does not seem necessary or appropriate to further consider and determine this issue.

This appeal is, accordingly, allowed with costs to the appellants, here and below.

Pronounced in Open Court at Lilongwe this 4th day of April, 2019.

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