The State v The Commissioner General Of The Malawi Revenue Authority (Judicial Review Cause 3 of 2025) [2025] MWHC 14 (18 August 2025)

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF THE MALAWI REVENUE AUTHORITY

ty, s2i¢ Ms o, 22€ on On Mp IN THE HIGH COURT OF MALAWI ae . Soy, REVENUE DIVISION i s <a PRINCIPAL REGISTRY Judicial Review Cause Number 3 of 2025 BETWEEN THE STATE (ON THE APPLICATION OF DEIFORM PRIVATE COMPANY) APPLICANT AND THE COMMISSIONER GENERAL OF THE MALAWI REVENUE AUTHORITY DEFENDANT

Coram

Justice CC Matapa Kacheche C Gondwe of Counsel, for the claimants J Kambumwa of Counsel, for the defendant Chimang’anga Court Clerk

Background

1. On 23" May, 2025 the applicant filed a hybrid application for permission to commence judicial review proceedings and for an order of interlocutory injunction. The application was made under Order 19 rules 20(3) and Order 19 rule 22 of the Courts (High Court) (Civil Procedure) Rules, 2017 (CPR) as read with Section 16 of the Statute Law (Miscellaneous Provisions) Act, Cap 5:01 of the Laws of Malawi.

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF

THE MALAWI REVENUE AUTHORITY

2. The permission for judicial review related to an alleged decision by the respondent dated 23" April, 2025 maintaining his earlier decision that the claimant should reexport the consignment of assorted liquor to South Africa upon lodging the Import Declaration and payment of cash deposit equivalent to the amount of duties assessed “when the said consignment is not for consumption in Malawi”. The interlocutory injunction is to direct the “Defendant to immediately release the consignment of the assorted liquor products to the claimant for re-exportation to the Republic of South Africa without requirement for an Import Declaration or payment of customs duty as the goods are deemed to have been wrongly consigned under section 30(2) of the Customs and Excise Act pending the hearing and determination of this matter”.

3. 1 allowed the application for permission to apply for judicial review but directed that the application for interlocutory injunction be heard by way of notice on the Respondent. Perceiving the matter to be urgent I appointed 2" June 2025 for the hearing of the application for interlocutory injunction. On the stated date Counsel for applicant appeared alone and informed the court that the parties were discussing out of court and he sought adjournment. The parties having failed to reach a compromise the applicant filed a notice of adjournment. | thus heard the matter on 20" June, 2025.

4, The respondent opposed the application for injunction. Three sworn statements were filed on his behalf in opposition to the application. The first two sworn statements were filed on the same day, 11% June 2025: one by Counsel James Kambumwa and the other by Rachael Kapsela, a tax officer. The second one isa supplementary sworn statement by the same Rachael Kapsela filed on 17 June 2025. I must state that the first sworn statement by Rachael Kapsela is only entitled

Sworn statement in opposition. It does not say in opposition to what. However, the prayer is clearly for the court to dismiss the “application for injunction for lack of procedural propriety”. mn % es > Ee oy BL 2 Lp OG a

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF

THE MALAWI REVENUE AUTHORITY

5. The Sworn statement sworn by Counsel Kambumwa attacks the regularity of the application. In summary the sworn statement alleges that:

a. does not comply with Order 10 rule 4 of the Courts (High Court) (Civil Procedure) Rules, 2017.

b. In the alternative a sworn statement verifying facts in support of the application for judicial review cannot be similar to a sworn statement under Order 19 rule 23(1) of the CPR.

c. What is available is a Sworn Statement Verifying facts in support of the application for permission for Judicial Review.

d. The law under which the application for injunction should be grounded is mandatory in that the claimant making the application must file an application together with a sworn statement

e. To rely on a sworn statement verifying facts in support of grounds for permission to apply for judicial review does not mean the application has been properly

supported by the Sworn Statement

f. The grounds for judicial review contained in Form 86 A does not constitute a sworn statement in support of the application for an injunction.

6. It is therefore the respondent’s submission that the applicant’s application is incompetent and must fail.

7. Asis obvious from the content of the sworn statement by counsel Kambumwa the whole of it is a legal argument or submission other than a statement of facts. As such the applicant filed a notice of objection against the use of the sworn statement on the ground that the same offends the rules regulating sworn statements in that it contains legal arguments and not statements of fact.

8. Be that as it may, when the matter came for hearing I guided both parties to deal with the substantive application and not the objections. ! did this because, in my view, the objections would merely delay the proceedings. I thought I would consider the legal issues raised by both parties together with the substantive issue of the application for injunction.

9. Notwithstanding the direction above the parties still made references to the procedural issues raised in the application. I will therefore allow myself some

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF

THE MALAWI REVENUE AUTHORITY liberty to comment on the procedural issues. This will not stop me from deciding the application on its merits. SWORN STATEMENTS

10. Generally, a sworn statement is a legal document reciting facts known to the deponent. In civil procedure it replaces the affidavit. The reading of Order 18 rule 6 (1) provides that a sworn statement “shall only contain facts that the deponent is able to prove...”. Rule 6(2) allows for the sworn statement to contain a statement of information and belief. Whatever the case, there is no room for statements of opinion or interpretation of facts or law in the rule governing swom statements.

11. In the case of Tembo and Kainja v The Attorney General [2002-2003] MLR 229, it was emphasized that affidavits must contain only depositions as to facts. In that case the court was not amused at all with the fact that the affidavits in that case contained Counsels’ opinion about sections of the Constitution, international human rights instruments etc. It is therefore important for parties to remember this very important rule when preparing sworn statements. In this case the sworn statement by Counsel for the respondent contained submissions on the point of law instead of statements of fact. However, as I pointed out above, the respondent supplemented the “sworn statement” with a proper swom statement and a supplementary sworn statement containing depositions of fact. The irregularity was therefore cured in time for this application.

Application for Injunction

12. The applicant has indicated that he was applying for the injunction simultaneously with the application for judicial review. According to him the application for injunction under order 19 rule 22 is different from the application under order 10 rule

27. Accordingly, the considerations are different. That factors considered under Order 19 rule 22 are different from those under order 10 rule

27. The applicant relies on the case of The State (on the application of the Malawi Energy

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF

THE MALAWI REVENUE AUTHORITY Regulatory Authority) v The Ombudsman (2021) JR Cause No. 60. (unreported). The applicant then proceeds to state that because of this difference, the form of the application itself is different.

13. Looking at the applicant’s documents, on the face of the application, the applicant applies for permission to apply for Judicial Review and for an order of interlocutory injunction under Order 19 Rules 20(3) and 22 of the CPR, as read together with section 16(2) of the Statute Law (Miscellaneous Provisions) Act.

14. Attached to the application is what used to be Form 86 A under the Rules of the

Supreme Court, 1965, filled appropriately. That is followed by the “GROUNDS ON WHICH THE APPLICATION FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW AND ORDER OF INTERLOCUTORY INJUNCTION IS SOUGHT”. The document contains the description of the decision, the grounds for the application and the background information about facts and so on. That document is followed by a sworn statement verifying facts in support of the “APPLICATION FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW”. The swom statement is made under Order 19 rule 23(1). However, the body of the swom statement does state in paragraph 2 that “the facts submitted in support of the application for permission for judicial review and for the interlocutory order are true”. The sworn statement concludes with a prayer for an order of permission for judicial review and an interlocutory order of injunction based on the verified

Facts

15. It is this form of application that is attacked by the respondent. The respondent states that the application should have been filed under Order 10 rule

27. This is probably the opportune time that I deal with this important preliminary issue. 1 will start with examining applications under order 10 rule

27. Order 10 rules 27 to 30 provide for interlocutory injunctions. Rule 27 specifically provides as follows:

Interlocutory Injunctions

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF THE MALAWI REVENUE AUTHORITY

27. The Court may, on application, grant an injunction by an interlocutory order when it appears to the Court__ (a) there is a serious question to be tried; (b) damages may not be an adequate remedy; and (c) it shall be just to do so, and the order may be made unconditionally or on such terms or Conditions as the Court considers just.

16. The crucial point to take from this rule is that the heading refers to “interlocutory injunctions” and the introducing sentences allows the court to grant an injunction by an “interlocutory order”. Interlocutory orders are by definition interim orders, that is, orders pending the happening of something else. In this case the happening could be the delivery of the final judgment or another order by the court. The order is not final, it is temporary or provisional, subsisting during the legal dispute.

17. It must be remembered that this rule is provided in the general context of Order 10: applications in proceedings and interlocutory orders. In my view Order 10 applies to all interlocutory applications brought in proceedings under the CPR except where specifically provided otherwise.

18. Order 19 rule 22 on the other hand provides for a different type of proceeding altogether. I consider rule 22 to be logically related to rule 21. | will therefore refer to the two rule for the better understanding of rule

22. The rules provide as follows:

21. An application for a mandatory order, a prohibiting order or a quashing order shall be

‘made with an application to the Court for judicial review

22. An application for a declaration or an injunction shall be made with an application to

the Court for judicial review and the Court may grant a declaration or injunction where

it considers that it would be in the interests of justice to do so having regard to__

(a) the nature of the matter in which relief may be granted by a mandatory order, a prohibiting order or a quashing order;

(6) the nature of the person or institution against whom relief may be granted by such an order; and

(c) all the circumstances of the case.

19. From the reading of these two rules it is clear that the applications mentioned in both of these rules have to “be made with” the application for judicial review if the applicant may benefit from them. As I pointed out earlier the two rules are logically related. How? They are both mentioning remedies sought by the applicant at the end

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF

THE MALAWI REVENUE AUTHORITY of the judicial review. All the remedies which the applicant has to apply together with judicial review herein are granted at the end of proceedings as final remedies except for the injunction which can be granted either as a final remedy and/or as an interim remedy. If granted as a final remedy it would require that the whole judicial review process be completed while if it comes as an interim remedy it would be reviewed at the end of the judicial review process.

20. At this time all we have is an application for permission to apply for judicial review. This is clear even from the application that was before me and the sworn statements in support. The application was for “interlocutory injunction”. An interim remedy. The rule itself does not distinguish an interlocutory or interim injunction from a permanent injunction allowed as a remedy. Since the rules in general do grant the court powers to grant injunction under Order 10 rule 27 I suppose it was not necessary for the rules to make a special provision for interlocutory orders under Order

19. These are adequately covered. Order 19 therefore, would cover remedies obtainable under the merits of the judicial review and not interlocutory orders. This would logically fit in the general scheme of the remedies under rules 21 and

22. Being final orders, they cannot be made pending the determination of the proceedings, in this case the determination of the judicial review. They have to wait.

21. To this extent | wish to differ with the sentiments of my learned brother in the case of the State (on the Application of Malawi Energy Regulatory Authority) v The Ombudsman JR no. 60 of 2021. In that case my leamed brother generously interpreted the reliefs under Order 19 as interim reliefs. In my view, apart from an injunction which can come either way the rest of the reliefs in that order are ordinary remedies granted in a successful judicial review proceeding. I do not appreciate why the injunction should not be considered in a similar manner as the other reliefs. The rule itself does not state that the reliefs being provided for are interim or interlocutory at all.

Sc] DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF THE MALAWI REVENUE AUTHORITY

22. Even if I were wrong in my interpretation of the rule the relief that the applicant is seeking in this case cannot in any way be termed interim. The applicant is asking for an order “directing the defendant to immediately release the consignment of the assorted liquor products for re-exportation to the Republic of South Africa without a requirement for an import declaration or payment of customs duty”. In my view the effect of such an order would be to take the goods out of the respondent’s control.

23. The applicant is a foreign entity. It has no presence in the country. If the goods are released, and the respondent is later found to have correctly made his decision there will be no way of enforcing the respondent’s decision against the applicant in my opinion.

24. The applicant has submitted that the goods in question are in “no man’s land”. That is to say they left the Mozambique jurisdiction and have not yet entered the tespondent’s jurisdiction; the applicant does not intend to import the goods into Malawi, i.e. they are in transit. The applicant emphasizes that the respondent has no jurisdiction over the goods.

25. It must be observed that these arguments go towards the merits of the Judicial Review application as they are faulting the respondent’s decision itself and not merely merits of granting the interim order at this point in time. Apart from this, the statement that the respondent does not have jurisdiction is clearly contradictory with the request that the respondent should allow the applicant to re-export the goods or allow “transit” of the goods, if we may be allowed to use that word generously. For, if the tespondent does not have jurisdiction at all, then he cannot be required to act either way.

26. The request to have the goods released is the ultimate relief that the applicant would have if I make a mandatory order or a quashing order at the end of the proceedings. Indeed, towards the end of his argument when replying to the respondent’s submission and the court’s queries Counsel for the applicant asked this Court to

a

DEIFORM PRIVATE COMPANY v THE COMMISSIONER GENERAL OF

THE MALAWI REVENUE AUTHORITY determine the issues at this very stage and not to wait for the judicial review application itself. The applicant is more interested in the final determination of the matter rather than a mere interlocutory injunction.

27. However, procedurally speaking we cannot at a hearing of an application for

interlocutory injunction begin delving into the merits of the main proceeding and determining the merits thereof. We need to follow procedure. I have seen that there is no dispute as to the facts; the respondent has filed all relevant documents; but we met for the determination of the application for an interlocutory injunction. We cannot convert the proceedings more than half. way through the hearing to a hearing of the Judicial Review proceedings. The applicant should have asked for an order to expedite the proceedings and subsequently filed the notice of hearing of the judicial review itself if they wished to expedite the process. We cannot do it through the back door. We need to preserve the procedural integrity of our processes.