:Mr. B. Theu & Mr. M. Chipeta, Counsel for the Applicant
:Mr. P. Likongwe, Counsel for the 1st Respondent
:Ms. Apoche Esther Itimu & Mr. C. Chinyama, Counsel for the 2nd, 3rd & 4th Respondents
: Mr. I. Wadi & Mr. F. Mbeta, Counsel for the Interested Party
: Mr. A. Nkhwazi, Official Interpreter

Kapindu, J (Note from me: I am only sharing a part of the ruling):

93. To conclude on the issue of the applicant’s application for an interlocutory injunction, I have found that the present proceedings present a serious issue to be tried. I have pointed out that, in particular, the overarching question as to what constitutes project implementation and whether the current activities which are part of the Interested Party’s contractual performance are part of implementation, is a question fit for consideration on a full hearing of judicial review. For purposes of the principles on the granting of interlocutory injunctions, it presents a serious question to be tried. The Applicant has specifically requested that among the activities in respect of which the Applicant is to be restrained is mobilization of equipment and resources. The Court has mentioned earlier that the overarching question in this case lies on whether contract performance or steps pursuant to the contract and towards contract performance constitute at least part of project implementation. Since the continuation of mobilization of equipment and resources is an essential part of steps pursuant to the contract and/or towards contract performance, this too in turn lies at the very core of the overarching question to be tried and determined in this case. Once that question is determined, the various declarations and orders sought by the Applicant will easily be disposed of. In the circumstances, it seems to me logical, equitable and proper; and consonant with a sound conception of justice, that such mobilization of equipment and resources should not continue pending the determination of the question of implementation by this court. This is so considering that all parties agree that project implementation in this case cannot proceed in the absence of an Environmental Impact Assessment (EIA) and an Environmental and Social Impact Assessment (ESIA).

94. To buttress the position that I have already adopted herein, I should also make two further observations. First, Exhibit AI3 to the affidavit of Counsel Apoche Itimu shows that the Honourable Attorney General, on 7 March 2017, asked the 1st Respondent to address his office on the issue of an environmental impact assessment. He said:

“Please address me on why an Environmental Impact Assessment Report has not been made a condition precedent to the validity of the contract. My concern here arises because…such a project shall not be implemented unless an environmental impact assessment is carried out.”

95. What emerges here is that the Attorney General was asking the 1st Respondent why the design of the project was not such that the contract should only take effect once an environmental impact assessment Report had been issued. Put differently, the Attorney General was advising that according to his understanding of the law, an environmental impact assessment should be made to precede the commencement of the contract because the project, in law, can only be commenced once a satisfactory environmental impact assessment report is issued.

96. Respondent’s resolution on this specific query, as is evident from exhibit AI3 to Counsel Apoche Itimu’s affidavit, was to “Amend the Conditions Precedent (CPs) to include recruitment of an ESIA consultant before project effectiveness”. The point the Court is making here is that the Attorney General himself, in the above correspondence that has been furnished to this Court through his office, was also connecting matters of contract performance with project implementation in his query to the 1st Respondent. It is notable that Counsel Itimu is from the Attorney General’s Chambers and appears for the Respondents on the authority of the Attorney General as the Principal Legal Advisor to the Government. I therefore find it rather strange that Counsel could seek to turn around and say determination on this very issue raised by her office is frivolous, vexatious, and hopeless with no prospect of success upon a full inquiry on a full hearing of judicial review.

97. Secondly, Paragraph 10 of the Affidavit of Mr. Mongesi Aaron Mnyani, on behalf of the Interested Party, clearly states that:

“The contract herein was suspended by the Attorney General and notwithstanding the inevitability of inconvenience and loss, Khato Civils Proprietory Limited complied with the Attorney General’s Directive and [is] optimistic that the issues of concern will be resolved without delays and that the suspension
[will be] lifted.”

98. It therefore appears that in fact, the interlocutory injunction sought to be obtained by the Applicant will, in effect, only reduce to judicial fiat that which the Honourable Attorney General had already directed. This, to me, tilts the balance of convenience towards granting the interlocutory injunction sought.

99. I must also mention that I have given serious consideration to the issue of the Applicant’s lack of capacity to compensate the various Respondents and the Interested Party herein in damages in the event that it transpires that the injunction was wrongfully granted. However, the Malawi Law Society, the Applicant herein, has stated that it has brought the application pursuant to the statutory mandate that the country’s Parliament gave to it in order to vindicate the rights and interests of the people of Malawi by assisting them on matters of law or matters connected with the law of which the present matter is an instance. To exclude such a statutory institution from exercising its statutory public mandate on the basis that it would have no capacity to compensate the Interested Party and other public institutions if the application were to eventually fail, does not seem to me to be what the
Legislature had envisaged when it created the Malawi Law Society with such mandate.

100. The present case is a clear case of public interest litigation where the Court must take measures that will ensure that ultimately, what is in the public interest and for the public benefit and good should ultimately be safeguarded. Thus, the Court concludes that in special public interest cases such as the present one, where such claims are brought in good faith for the Court’s determination, courts should not be unduly constrained to grant interlocutory injunctions where the same are appropriate, simply because there is a possibility that if the application eventually fails, the Applicant may be unable to provide the Respondent(s) and/or other affected parties with adequate compensation in damages. If that were the philosophy of the law, then the approach of these courts would fail to give effect to one of the fundamental principles of the Constitution, as expressed in Section 12(1)(a) of the Constitution, which is that “all legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests.” The legal authority of the State includes the coercive powers of the State through the institution of the courts.

101. In the result, this Court concludes that the balance of convenience in this matter tilts in favour of granting the interlocutory injunction herein and it is so granted.

102. I wish to state clearly that the Court is keenly mindful of the great importance that this project assumes not only for the parties, for the City of Lilongwe and its residents, but in the bigger scheme of things, for the whole country. The Court appreciates, in this regard, that this is a matter that must be expeditiously determined from this stage forward, in order to ensure legal certainty on matters surrounding the project in so far as environmental impact assessment matters are concerned. The Court therefore directs that the full hearing of the judicial review herein be highly expedited and be heard on Tuesday, the 3rd of October, 2017 at 9 O’clock in the forenoon. The Court will ensure quick final disposal of this matter thereafter. Parties should ensure that they file all relevant documents for purposes of trial as required under the Rules of Practice no later than Friday, the 29th of September, 2017. Notices of intention to cross-examine, if any, should be filed and served on other parties within 7 days from the date hereof.

103. Finally, the question of costs, which I was called upon to decide, has exercised my mind. Whilst courts have discretion whether or not to award costs against an unsuccessful litigant, it is axiomatic that the general rule on costs is that costs follow the event. This rule is meant to serve, among other purposes, as a strong deterrent to litigants who may potentially be required to pay substantial costs if they lose. It has been said however that there are several exceptions to the general rule. In Australia, a principal commonwealth and common law jurisdiction, the High Court of Australia, in the case of Oshlack v Richmond River Council (1998) 193 CLR 72, laid down principles that help determine when not to award costs in environmental cases. Such circumstances, according to the Court, include those where:

(a) A significant number of people share the concerns of the applicant;
(b) The case is arguable and raises significant issues as to the interpretation and future administration of statutory provisions relating to protection of the environment and;
(c) There are sufficient special circumstances to justify departure from the ordinary rule as to costs.

104. In the instant case, what is at least clear is that the matter raises significant issues as to the interpretation and future administration of statutory provisions relating to protection of the environment. In addition, I have considered the reasons that I have provided earlier on the issue of the
Applicant’s lack of capacity to compensate in damages and why that, per se, must not shackle this Court from issuing an order of injunction in favour of the Applicant. I am satisfied that the Applicant in this case has been motivated by its desire to ensure obedience to the country’s environmental laws. At the same time, I also reckon that the Respondents herein are, just like the Applicant, dutifully exercising their public duties and there is no indication of bad faith on their part either. In the premises, I opine that there are special circumstances to justify departure from the ordinary rule as to costs in this case. The Court therefore orders that each party should pay its own costs.

Made at Zomba in Chambers this 15th Day of September, 2017.

RE Kapindu, PhD

NBS Bank Your Caring Bank