IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MS CA CIVIL APPEAL NO, 1 OF (Being High court Civil Cause No. 889 of 1999) BETWEEN:

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1 IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MS CA CIVIL APPEAL NO, 1 OF 2000 (Being High court Civil Cause No. 889 of 1999) BETWEEN: AIR MALAWI LIMITED......APPELLANT - and - THE OMBUDSMAN... RESPONDENT BEFORE: THE HONOURABLE THE CHIEF JUSTICE THE HONOURABLE MR. JUSTICE UNYOLO, JA THE HONOURABLE MR. JUSTICE KALAILE, JA Kamkwasi, Counsel for the Appellant Chibwana, Counsel for the Respondent Chirambo (Mrs), Official Interpreter/Recorder JUDGEMENT Banda, C.I. This is an Application to this Court for an order that the applicant be granted fresh leave to move for Judicial review. It would appear that an application for leave to move for judicial review was initially granted by the Honourable Mr. Justice Twea on 26th November 1999 but subsequently discharged it on 24th December, The applicant filed three grounds on which his application to this Court is based. The grounds are stated as follows. 1. The decision of the Ombudsman to carry out inquiries in labour related issues is contrary to Section 123(l) of the Constitution. 2. The Ombudsman's decision to act on Government circular directing statutory cooration to compensate and/or re-instate former public employees dismissed on political grounds is a misconception at law. 3. The decision of Honourable Mr. Justice Twea discharging leave does not reflect the Supreme Court decision of 24th December, 1999 'in the matter between, Malawl Broadcasting Corporation vs The Ombudsman, Civil Appeal Case number 23 of

2 1999. The facts which have given rise to the application would appear to be as follows: Mr. R. A. Banda who had been employed by Air Malawi 'in their Cargo Division had his services terminated with effect from 12th June The reasons given for terminating Mr. Banda's services were that he had absented himself from duty for an accumulated period of seven working days and. was liable to automatic dismissal in terms of Air Malawi Personnel and Training Circular No. 9 of 1989 dated 24th February, It would appear that Mr. Banda had been picked up by Police on 7th June 1989 and by the time the letter terminating his services was written Mr. Banda had been in custody for more than 30 days. Air Malawi was aware that Mr. Banda was in Police custody and that hi's arrest had nothing to do with his work. It would appear further that Mr. Banda had approached Air Malawi' to have him reinstated or paid terminal benefits in terms of a Circular No. 5/06/4 dated 28th July 1995 which was issued from the Office of the President and Cabinet. That Circular directed that all public servants who were dismissed on political grounds should be paid compensation in form of terminal benefits. It was under the authority of that circular that Mr. Banda applied to Air Malawi to have his benefits paid. Air Malawi refused to pay him contending that termination of his services was not political. It was after that refusal that Mr. Banda approached the Ombudsman. Air Malawi is contending that the Ombudsman has no jurisdiction to investigate into labour related matters which are appropriate for determination by a Court of law. Mr. Jussab for Air Malawi has submitted that the Ombudsman has no jurisdicaion to investigate labour related matters like the one which has arisen between Mr. Banda and Air Malawi. Mr. Jussab cites Section 108 of the Constitution as authority for that proposition. Mr. Jussab submitted that Air Malawi had informed the Ombudsman that they were objecting to investigation of the issue between Mr. Banda and Air Malawi. The Ombudsman dismissed that objection and continued to make preliminary inquiries with a view to instituting a full inquiry. It was as a result of that decision by the Ombudsman dismissing the objection that prompted the applicant to apply for leave to move for Judicial review. Mr. Jussab has contended that the Ombudsman has no jurisdiction under Section 123 of the Constitution because-the complaint can be pursued in the ordinary Courts where several remedies would be available to the complainant. The applicant sought an injunction to restrain the Ombudsman from continuing with his investigations. Mr. Jussab has further submitted that the decision of this Court in Malawi Broadcasting Corporation Vs The Ombudsman which was delivered on 24th December 1999 had now superseded the remedy which Air Malawi is seeking in this application. Mr. Jussab contends that the provisions of Section 123 provide the gist of their argument and has submitted that the Ombudsman has not shown that the inquiry he has initiated would have no remedy in any Court of Law. Mr. Jussab has further submitted that Section 123 of the Constitution has clearly delineated the parameters of the Ombudsman's jurisdiction. Mr. Chibwana, the Ombudsman, has submitted that he has jurisdication to inquire into the complaint between Mr. Banda and Air Malawi. He has contended that he derives his ions 15, 4 and 46 of the jurisdication from the provision of Sect Constitution. Mr. Chibwana has submitted that the Ombudsman makes a decision after he has held or conducted an inquiry and that before that stage is reached there is no decision Which can be reviewed. He has submitted that all he has done in the present complaint is to hear evidence. The Office of the Ombudsman was enacted by Section 120 of the Constitution and has such

3 powers, functions and responsibilities as are conferred upon that office by the Constitution or any other law. Parliament has enacted the Ombudsman Act and the powers, functions and responsibilities of the Ombudsman must be gathered from the Constitution and the Act. Section 123 of the Constitution provides for powers and functions of the Ombudsman and Section 5 of the Ombudsman Act provides or the duties and functions of the Ombudsman while Section 6; of the Act provides for the powers of the Ombudsman. Section 123 of the Constitution provides as follows:- "Section 123(1) The Office of the Ombudsman may investigate any and all cases where it is and that a person has suffered injustice and it does not appear that there is any reedy reasonably available by way of proceedings in a court or by way of appeal from a Court or where there i's no other practicable remedy" and subsection (2) provides: (2) ""Not withstading Subsection (1) the Powers of the Office of the Ombudsman under this section shall not oust the jurisdiction of the Courts and the decisions and exercise of powers by the Ombudsman shall be reviewable by the High Court on the application of any person with sufficient interest in a case the Ombudsman has determined." The powers which the Ombudsman Act gives to the Ombudsman do not derogate from the powers -which Section 123(l) of the Constitution gives to the Ombudsman and for purposes of this case we will treat the powers that derive from the Constitution and the Act as the same. It is clear in our judgement that these powers give the Ombudsman a discretion to investigate "any and all cases" where it is alleged that a person has suffered injustice. In our view this discretionary powerallows the Ombudsman to investigate "any and all cases" whether they be labour related or not. We can find no provision in the Constitution or under the Act which "restricts the Ombudsman's discretionary power of investigation only to non labour related cases. Mr. Chibwana cited sections 15, 41 and 46 of the Constitution as the foundation of the Ombudsman's jurisdication. We do not think, with respect, that sections 15, 41 and 46 of the Constitution add anything to the powers of the Ombudsman beyond what Section 123 states. Nor are we satisfied that it is section 108 of the Constitution, as suggested by Mr. Jussab, which imposes the restriction on the powers of the Ombudsman. The only restriction we find is one which is contained in Section 123 of the Constitution namely that the Ombudsman may not investigate any case where there is any remedy reasonably available either by way of proceedings in a court or by way of appeal from a court. There are a number of points which must be observed on the powers which section 123 gives. First point to observe is that the powers which this section gives the Ombudsman are only discretionary and secondly they are limited to the requirements that the powers may not be. exercised where thereis a remedy reasonably available which can be pursued in a court of law. It is of considerable significance in what Section 123(2) says. That subsection makes it absolutely clear that the powers given in subsection (1) to the Ombudsman do not oust the jurisdiction of the Courts and the sub-section employs the phrase shall not which is a peremptory phrase. By providing that the decision of the Ombudsman shall be reviewable the section envisages that there will be occasions when the discretionary power given in subsection (1) shall not be properly exercised. When then can the decision of the Ombudsman be reviewable. Mr. Jussab has submitted that the decision of the Ombudsman to start an inquiry i's itself reviewable and has therefore contended that the Ombudsman in the present

4 case should not be allowed even to consider instituting an inquiry. Mr. Jussab seems to have support for that proportion by what both the High Court and Supreme Court said in the case of MBC Vs Ombudsman; in the High Court being Civil Cause No. 53 of The learned judge in the- High Court stated the position on page 11 of his judgement in the following terms: "Judicial review lies at or on any step the Ombudsman takes. Every step be takes is subject to judicial review." An again on the same page the learned Judge says: "I am in my considered opinion satisfied that the decision the Ombudsman made to establish an inquiry and the powers be exercised, to make the decision ought to be reviewed by a competent Court." It Would appear that this Court took a similar view when the matter came before as MSCA Civil Appeal No. 23 of 19. At page 11 this Court said: "We note that the judge made findings on some of the points that were argued before him. In particular the Judge found that the appellant bad scheduled a bearing to take place on 27th July 1999 and that by so doing the appellant (i.e. Ombudsman) bad exercised, the Powers of judicial tribunal." It is clear that the Supreme Court accepted the findings of the learned judge in the High Court as they- dismissed the Appellants' appeal. We are unable to agree -with our learned colleagues in the Supreme Court. We find it difficult to imagine that Parliament's intention was that any step the Ombudsman took. in preparation to commence an investigation was reviewable. Section 123(2) of the Constitution makes it clear, when 'it says that the application which a person with sufficient interest takes to the High Court for review is a case which the Ombudsman has determined. Where all the Ombudsman has done is to make preliminary enquiries or where he has only heard evidence as has happened in the present there is no case which the Ombudsman has determined. It is with greatest respect therefore, that we dissent from the decision which the High Court and the Supreme Court made when they held that it is every step which the Ombudsman has taken which is reviewable. There can only be a determination of a case after the Ombudsman has heard evidence from both parties and has come to a final conclusion. That 5 in our judgement, is what Section 123(2) of the Constitution means. It 'is also important to make a distinction between a judicial review and reviewing a case. It is trite law that judicial review is directed at reviewing the decision making process. It does not direct its inquiry into the merits of the case. On the other hand reviewing a case is -wider and goes into the merits Of the case and considers the whole evidence adduced to see if the decision arrived at can be supported on the evidence. The office of the Ombudsman is a new phenomenon which has been created by our new Republican Constitution. It is important that its position in the present constitutional Order is understood by the holders of the office of Ombudsman-and the general public. The Ombudsman is now an integral part of a democratic system and should be looked upon as part of the democratic fabric of our society. The role of an Ombudsman must be to investigate the bureaucratic unfairness which is constantly being committed either advertently or inadvertently by public or private officials and agencies. The Ombudsman must primarily be investigating those complaints which arise from administrative misunderstandings, administrative errors and negligence which have resulted in an injustice being occasioned to a person. Such complaints are easily amenable to quick resolution and

5 courts would not be the appropriate forum to resolve them. The Ombudsman's role should be one in which he endeavours to find a mutually acceptable resolution of the complaint. Such an approach will result in greater acceptance by the parties and will provide a more rapid resolution than an approach which is directed at a finding of right or wrong. We are sure that when the Office of Ombudsman was created the hope was that through his duties and responsibilities the political and administrative decision making procedures would be improved and that society's attitude towards insensitive and inefficient bureaucrats would be reduced. We regard it as imperative that in the resent constitutional order the holder of the Office of the Ombudsman and his staff must know and understand the limits of their power. It is equally imperative that the members of the public should also know the limits of the powers of the Ombudsman. It is important to know that the Ombudsman has no power of enforcement. The Ombudsman has no power to enforce any of hi's directives except by reporting to the National Assembly. He cannot enforce compliance with the directive he gives. On the other hand courts have statutory mechanisms to effectively enforce their judgements and orders. It is also important in our view that the Ombudsman must 'indicate clearly to the complainant the limits of his powers so that the complainant is not disappointed if the Ombudsman's inquiries do not produce the complainant's desired result. Conditions must be created between the Ombudsman and the complainant in which the latter cannot complain that he was misled. We have already observed that the powers to investigate which are given to the Ombudsman are discretionary and in exercising that discretion the Ombudsman will be guided by what Section 123 has stated namely that he may investigate any and all cases where "it does not appear that there is any remedy reasonablv available by way of Proceedings in a Court" or by way of appeal from a Court". It could not have been Parliament's intention that in giving powers to investigate injustices it had intended to give to the Ombudsman equal and concurrental jurisdiction with Courts. Indeed if it were so then the section 123(2) would not have made it clear that the powers of the Ombudsman did not oust the jurisdiction of the Courts. Equally it could not have been the intention of Parliament that complainants should be given a free reign of moving from one tribunal to another. It is our judgement that it was not the intention of Parliament that the Ombudsman shall operate in parallel to the courts. In other jurisdictions the discretion to decide to investigate is left to the Ombudsman to decide whether it is reasonable for the complainant to pursue his remedies in other tribunals. This is the position in Australia under the Commonwealth of Australia Ombudsman Act. Under Section 6(3). the Ombudsman may decide not to investigate the action if he is satisfied that it would be reasonable to exercise the right in other tribunals. In the United Kingdom the Court of Appeal held in the case of R. vs Commission of Local Administration (1989) that a good cause must exist before the Ombudsman can take up a matter that is capable of being challenged in court. It is not necessary under the UK practice that the Ombudsman should be satisfied of the likely success in Court. It is sufficient if a court or tribunal is available where the complaint could be pursued. It is our view that the Ombudsman should not take on matters which other tribunals can perform merely because they have been brought to him. He should avoid taking the attitude of saying: "I can do anything that you can do." It is clear in our judgement that the Ombudsman has the discretionary power to investigate any and all cases. But in our view the practice which the Ombudsman should develop should be that where there is a remedy reasonably available in Courts the complaint should be referred to the Courts as the proper body to whom the complainant should be advised to go. As Woolf LJ said in the case of R Vs Local Commission ex Parte Croydon LBC [1989], 1ALL ER

6 "The Commission (in our case Ombudsman) should also have well in mind even when the holder of the office is a distinguished lawyer, as in this case here, that his expertise is not the same as that of a court of law. Issues whether an administrative tribunal has properly understood the relevant law and the legal obligations which it is under when conducting an inquiry are more appropriate for resolution by the High Court than by a Commission however eminent." In the resent case we are satisfied and find that the Ombudsman had not determined the case and there was therefore no decision which could be reviewed. It is our view, however, that the present case is one where it would be proper for the Ombudsman to investigate because it is clear on the papers before us that the complainant would have no remedy reasonably available to him in court because of the possibility that the action would be caught by the Statute of Limitation. We are satisfied that leave to move for judicial review was proper discharged as there has been no determination of a case by the Ombudsman. We would therefore dismiss this application. DELIVERED in open Court this 17th day of April 2000 at Blantyre. Sgd R A BANDA, CJ Sgd L E UNYOLO, JA Sgd J B KALAILE, JA