This case has been decided by three independent judges sitting in the Kangaroo Court, viz; LordDenning SC, Sean Mateus and Anord Chimtengo. Therefore, being a panel of three judges a prevailing verdict will be the decision of the majority.
BACKGROUND OF THE CASE
Somewhere between the years 1995 and 1999, during the Bakili Muluzi era, K187 million vanished from the Ministry of Education curtsey of educated thieves who used tricks available in books to defraud government of this money. The loot was discovered following a general audit carried by the Office of the Auditor General in the year 2000. The revelations in the report triggered a sensation in the public arena which resulted into the State pursuing suspects. Among those suspects include Mrs. Greseldar Jeffrey (the incumbent DPP Secretary General) and Brian Kachingwe Phiri, both of whom were, at the material time, building contractors. The two were accused of defrauding K56 million through undone or uncompleted school projects. In that report, it was revealed that Jeffrey’s business connived with a divisional education office in Kasungu to defraud the Government. The Anti-Corruption Bureau acted upon the report and arrested her together with some suspects. Other suspects were officials from the Education Ministry including Dr. Sam Safuli who was arrested and later on freed when his case was dropped for lacking convicting evidence.
There is a statutory obligation in which parliamentary committees may, when a cause arises, summon a concerned citizen or member(s) of the public to appear before it for questioning over some substantial and reasonable allegations that concerns public affairs. A recent example is that of the Agriculture Committee, in conjunction with Public Accounts Committee, summoning suspects of the Kaloswe maize scandal for questioning. This matter of the education department loot was of such public interest and sensationalism.
Greselder Jeffrey wa Jeffrey and other suspects, at an instance of a summon, appeared before the Public Accounts Committee (PAC) which was chaired by one Honourable Silusi Nkhoma, a then legislator of Kasungu West Constituency. The basis of that summon was the audit report and from the hearing that ensued, the committee made recommendations. One of the recommendations, this committee came up with, was for the Ministry of Education to cancel all the contracts that were related to the suspects. Another recommendation was for the Ministry of Education not to pay these contractors even for the projects that were completed. These recommendations were fully implemented by the Ministry of Education. All contracts were cancelled and all completed and non-completed projects were not paid for and of course they got arrested.
After staying in detention for a long period, Greselder, and her co-accused, were taken to court to answer criminal charges of theft and other corruption-related offences. Much as the report established a fact of lost figures in money, catching the real culprits and fixing them to the pole of guilt demanded going beyond the report. Regrettably, though, the prosecution failed to prove their case beyond reasonable doubt. Their evidence was below minimum standard. The prosecution exhibited clear laziness. Their reliance was locked to the audit report. They could not go beyond the audit report to examine, independently, the conclusions of the same. Due to the judicial fact that criminal prosecution demands higher weight of evidence, and given the doubts that existed in the evidence so tendered by the prosecution, the doubt generated an award of benefit to the accused and so they were acquitted. I must also mention here that the trial that resulted into this acquittal only came in the year 2010. Thus, since 2000, the woman remained in wrongful custody for about 10 years.
Following the acquittal, Greselder (now a complainant) instituted civil proceedings, suing the Government in her pursuit of reparations. In her suit, she claimed unlawful imprisonment; defamation; malicious prosecution; breach of contract; and economic loss. It is the progression of these claims – and in particular the figure of K70 billion constituting the sought compensation – that gives rise to this opinion. This is public money, therefore, a matter of public interest.
It is on record that she, in such suit, initially claimed K900 million in damages which she later on adjusted to K12, 135, 984, 477 (read as “over K12.1 billion”). According to details of her suit, this amount of claim was in loss of business; loss of interest and cash profits; loss of properties’ rental income (during the period of their seizure); loss of principal and interest amounts from bank accounts; as well as loss of piece of land in Blantyre. After years of unsuccessful settlement of her claims, Jeffrey wa Jeffrey, who is now serving in the incumbent regime as a Secretary General for the ruling DPP, has relaunched his claim battle – this time inflating the figures to K70 billion.
It must be highlighted, at this point, that the Government gave an order to stop a payment of cheque of about K14.2 million to her construction company in payment of completed works at Msalura Community Day Secondary School in Kasungu. Her assets which included trucks, minibuses and houses were seized (but later on returned). Her bank accounts were frozen. The ACB also took money and other valuables from her home, in suspicion that they were ill proceed. All these were returned following the acquittal. On a lighter note, I must insert my due admiration on the riches Greselder Jeffrey. The woman is propertied. The woman is rich. This is why she has picked herself up after all her seized properties and accounts were returned.
It must also be mentioned here that the audit report was sensational – just the same way as the Baker Tilly report and the Chaponda Case have been sensational. Because of that sensationalism, the court of public opinion delivered its verdict which convicted the suspects. To be seen to be appealing to the public interest, the parliamentary committee picked a ruthless hammer with which it hit the suspects so hard. On the other hand, because of that sensationalism, the victims were consistently denied bail.
At this point, let me deal with the specific heads of her claims:
Basically, this entails any statement(s), whether written or oral, which are likely to lower the victim’s image in the estimation of the right-thinking members of the society. There are some explicit statements that are complained by the plaintiff (Greselder). For instance, the Attorney General then and the Director of Public Prosecution then, (the Fahad Assans), would convene a press briefing and state, in reference to the accused, that; “these are thieves who stole Government money and they belong to jail.” Journalists could rely on such utterances and transmit such image of the accused to the public domain through their reports. If we can agree that such approach and statements lowered the image of the accused in the estimation of the right-thinking members of the society, then defamation was made and must be compensated accordingly.
The axis of malicious prosecution has three bolts viz: showing that the person was charged with an offense, that there was trial, and that there was an acquittal. The test is the existence of malice on the part of the prosecutor. The question is: “would a reasonable prosecutor, based on the available evidence, proceed with the prosecution’? It must be demonstrated that the prosecutor knew, or that any reasonable prosecutor would have known, that there was no evidence with which to justify prosecution but proceeded on mere chances and naked desire to prosecute the suspect anyway. As with this case, there was a binding audit report that was prepared and released by a legitimate state agency (the Office of the Auditor General) which created the charges. The police and the ACB proceeded in their actions on the basis of such a report. In the reading of the report, it is my opinion that any reasonable authority in the police and the ACB would take the action as was taken then (i.e. arresting and trying the suspects). On such consideration, my opinion holds that, unless the said malice is otherwise demonstrated by the plaintiff, there was no malicious prosecution and this claim must fall off.
BREACH OF CONTRACT
As noted earlier on, the Government gave an order to stop a payment of cheque of about K14.2 million to her construction company despite completed works at Msalura Community Day Secondary School in Kasungu. To such project, she performed her task as set out in the contract. Records have it that she even has payment vouchers for purchase of materials and labour that are related to the execution of the work. The stopping of the payments for the completed works, therefore, constituted breach of contract. This breach was aided by the overzealousness that was displayed by the parliamentary committee which delivered an overexcited order. I, therefore, find this head of claim by the plaintiff as a genuine one which must be fully compensated for with regard to the uniqueness of the case.
There is uniqueness accompanying this case. The said uniqueness lies in that the case has dragged for almost 18 years without its conclusion. The Courts have normally dealt with breach of contract cases that are mapped within short periods of, say, 3 years or less – sometimes even months only. The principles are there which mandate the courts to award the plaintiff so as to leave him/her in the position they would have been if the contract was respected. The policy of the law is, if money can do it, to afford the victim fullest compensation to bring him/her to the position before the wrong.
The fact that the case has dragged for 18 years since the civil suit for claims was commenced in Court, and that such delays were not of the plaintiff’s making, leaves any reasonable court with the duty recognize the need for a genuine relief. Let us look at it in this way: The contractor used bank loan for the capital of the project and as we all, probably, know what this means, the delay meant huge punitive interest charges were incurred. All this because the withholding of the payments by the client (herein the Ministry of Education) disabled the contractor from repaying the loan. Because such withholding of payments (which is still ongoing to present) is found to be unlawful, as it emanates from breach of contract, all penalties incurred by the contractor from the bank must be transferred to the client – the Government. On top of that, such money would have been enjoyed by the contractor, but she failed to do so because it was withheld. She was, thus, denied enjoyment of her money and that should also attract its own compensation.
Relevant to her suit, this economic loss is claimed on the tails of loss of business; loss of interest; and loss of income. Loss of business in the sense that some contracts that were yet to be completed or performed were cancelled and that during the period of her being accused as a thief and corrupt contractor, her company could not qualify for any bid according to bid compliance standards. On that perspective, she indeed lost business. On loss of interest, this is on the consideration of standard assumption that the withheld money would have been kept in an interest accumulating account at some commercial bank. There was a time whereby the courts, in awarding compensation in such cases, were adding 3% above the base lending rate of 30%. Let us then consider 33% of K14.2 million withheld money and compound it monthly then yearly over the period of 18 years. Applying the compounding principles, the amounts in the Greselder case will be very high. And that won’t be her fault. The blame will only go to the number of years, inflation and devaluation factors. On loss of income, under consideration is the property (in form of renting houses and machinery) that were seized from the year 2000 to the year 2010. As stated earlier on, the woman is heavily propertied. She has houses spread across expensive locations of Lilongwe and Blantyre, all of which were seized. She could no longer make money from them over that 10-year period. This, therefore, qualifies her to make yet another justifiable claim under the head of economic loss.
UNNECESSARY COMPENSATION LEADING TO LOSS OF GOVERNMENT MONEY DUE TO POOR PROSECUTION
The unnecessity of the compensation is considered on the fact that most of these claims succeed due to carelessness and poor performance of the prosecutors who are there to defend the public interest. Right from the beginning, the ACB exhibited carelessness in the manner it performed its duties in the prosecution process. At one point, Judge Mkandawire, in one of his judgements on this very case, admonished the ACB for lacking seriousness. Further trait of lack of seriousness on the part of the ACB was exhibited in the manner it gathered its evidence. It demonstrated glaring negligence as if it colluded with the plaintiffs that they would secretly share the money if the State had lost the civil case and compensation awarded to the plaintiff.
In fact, in the ruling that acquitted the accused, the judgement was a default one. This was so because the ACB failed to submit necessary documents to the court in time. When confronted on this, the prosecutor submitted that they had forgotten to endorse the date of the hearing in their diary. Imagine such levels of carelessness! To me, such negligence constitutes criminal behaviour. It is painful to a right-thinking tax payer for the Government to lose K70 billion simply because someone did not professionally do their job as expected of them. That is criminal negligence. The ACB had the duty to exercise all seriousness achievable, digging every corner of the case to gather evidence. But that diligence was not applied and eventually the accused got acquitted in a case that they would otherwise be convicted. This is a case where the accused did what they were accused of doing, but the prosecution failed to build the evidence to the required standard. They couldn’t go beyond the audit report. They were lazy. Can we be angry at the defendants for building a powerful defence that explained the alleged facts away and worked to their advantage? No! We must aim our hands at the neck of the prosecuting agency.
Malicious prosecution has failed as demonstrated above. It is not unlawful for a citizen to be suspected and it is not unlawful to be procedurally arrested on those suspicions. This is why the Courts are tasked to try such accusation to establish the truth and assert judgement. When acquitted, such accusations and arrest thereof only become ‘falseful’, but not unlawful. It would be intimidating, if not defeating, the law if an acquitted person who was a lawful suspect is permitted to claim damages in the name of malicious prosecution whilst it has been demonstrated that the actions that accumulated into a process of prosecution were guided by reasonable grounds. I have demonstrated how reasonable those grounds were by stating that it was as a result of an audit report revelations. The prosecution has only failed to vindicate the report, but that does not bedevil the trial process that occurred upon the accused. This part of claim, therefore, must fail. The other heads of claim, which include, defamation, breach of contract and economic loss have been approved and reasonable compensation for damages must be awarded to the plaintiff – of cause at the cost of public loss and outcry. That closes my opinion.
Lord Sean (Sean Mateus)
This is a civil matter in which the appellant and two others are suing the government for a sum of k 70 billion, an unprecedented figure I must add, on the following their acquittal on various criminal charges. The plaintiffs herein have set the following grounds for their action:
iii.Breach of contract
iv.Loss of business
My learned senior colleague has already succinctly provided the background of the current action, as such, I will not belabour to do the same. He couldn’t have done it any better. This matter finds us at a rather very difficult time when we, as a nation, are still smarting from plunder of resources known as Cashgate, which is another manifestation of criminal conduct similar to the one the plaintiff was allegedly involved in.
2.0 The law
Unlike in criminal matters, the plaintiff is required to prove her case on a balance of probabilities, and not beyond reasonable doubt. Further, the onus of proving a fact asserted lies squarely on the person wishing to have the court believe in the existence of such a fact. The relevance of these points will be appreciated later on. At this moment, I will now proceed to look at the merit or lack thereof, of the various grounds of the action before this court.
2.1 False imprisonment
The first ground in this action is false imprisonment. The constitution of Malawi guarantees each and every member of our great Republic the right to liberty. Thus, where this is restricted, it has to pass the test as set out in s.44 of the constitution. Indeed, it has been stated that where the liberty of a person is interfered with, damages are given to vindicate the plaintiff’s rights, as per Hastings B. Nyirenda v Attorney General Civil Cause No. 945 of 1997 (unreported). Thus, arbitrary arrest is frowned upon.
S.44 of the constitution states that where there is a restriction of a right provided for under the constitution, it should be provided for by a written law, and be reasonable. Now, it is on record that a financial audit of the year 2000, revealed systemic corrupt practices which were resulting in the government losing money in an elaborate looting scheme. The audit report, among many companies and individuals, listed the claimant and her company as beneficiaries of the corrupt scheme.
As I am hopeful of common knowledge, where there is a reasonable suspicion that criminal and corrupt activities are going on, law enforcers are enjoined to take action, and they did just that at that particular time by arresting and prosecuting the claimant herein. Would a reasonable man, in the face of a clear audit report implicating the claimant, say that the claimant was arrested on unreasonable grounds? I don’t think so. The law enforcers were within their right to make such a call, and they rightly did so.
At this point perhaps, it will an opportune time to state what false imprisonment is. Statute and case law is very clear and this. Justice Mtambo in Mphoka v The Attorney General Civil Cause No. 258 of 1997 (unreported) stated that the tort of false imprisonment exits when the facts show an infliction of bodily restraint which is not authorized by law and is without justification. Moving to the case at hand it will be seen that indeed there was an infliction of bodily restraint of the claimant. However, this restraint was authorized by law in that the law mandates law enforcers to restrain, even physically where circumstances demand, people suspected of committing a crime. Further, there was a report to the effect that the claimant was involved in criminal activities therefore, therefore the law enforcers were justified to arrest her.
As per Wiltshire v Barret  2 All E.R. 271, an arrest becomes unlawful where the arresting officer or any other person did not have reasonable suspicion, in effecting an arrest or inflicting bodily restraint. As just elucidated, the audit report provided the necessary reasonable grounds. To this end, the claimant was not falsely imprisoned, and therefore, this ground fails.
I now turn to the second ground of the action, which is defamation. Each and every citizen of this nation has a right to a good name and reputation. Where one feels that his or her reputation has been injured can sue it tort. This is exactly what the claimant has done.
According to judge Dingiswayo Madise in JONATHAN ZINGA V AIRTEL MALAWI LTD civil cause no 74 of 2014, a person/entity is liable for defamation if he publishes to some person other than the plaintiff some false and defamatory story which injures reputation of another. And he further stated that the following three elements must be present for a defendant to be liable for defamation.
1) False story
2) Publication to third party
3) Injury to reputation.
Turning to the current scenario we see that there existed no false story. Everything that was said and done in relation to the claimant was based on the audit report. And there is no record where the claimant challenged the truthfulness or objectivity of the said report, as such, the first element was not satisfied. Again, the second element was not satisfied as there was no deliberate publication of the story and subsequent distribution of the same. And thirdly, there was no report or proof stating/demonstrating that the claimant’s reputation was injured. If this was the case, the president, who also happens to be the leader of DPP, a party she is currently subscribing her membership to, could not have appointed her to such a high position of secretary general of the party. All in all, the claimant has failed to prove her case on this ground, therefore, this ground fails also.
2.3 Breach of contact
A contract is defined as a binding legally enforceable agreement. The issue at hand involves the claimant’s assertions that the government was in breach of a valid contract when it failed to make a payment of k 14, 000, 000 to a company owned by the claimant. Because of this failure, she is now suing for breach of contract.
A breach of contract happens when a party to a valid contract fails to fulfil their obligation under the contract. On facts available to the court, the government stopped a payment that was due to the claimant’s company after it was reasonably believed that the company was involved in fraudulent activities calculated at defrauding the defendant herein. There is no independent evidence suggesting that the claimant’s company, discharged its contractual. It was never independently verified that the company had really discharged its contractual obligations. It has to be kept in mind that there was an elaborate scheme aimed at defrauding government, which went as far as bribing government officials to declare projects that had not even started, as duly completed. Snowden Joya, a quantity surveyor, was sentenced to three years imprisonment for forging six certificates for completion of work for projects that were never finished. In the case of the claimant’s company, it is not clear whether it held its end of the bargain.
Again, this kind of situation was not reasonably foreseen by both parties at the beginning. The government did not reasonably foresee that it will be defrauded, if it had, it would not have awarded the contracts, on the other hand, the claimant, being master minders of the scheme, did not foresee that they would be caught, if they had, they could have pursued other avenues and not the one they did. In Hadley v Baxendale (1854) 9 Exch 341 it was established that claimants may only recover losses which reasonably arise naturally from the breach or are within the parties’ contemplation when contracting. This kind of scenario was not contemplated by both parties. For this reasons thus far advanced, I hereby order that this ground fail as well.
2.4 Malicious prosecution
The claimant has also averred that she was maliciously prosecuted. It was laid down in Mohammed Amin v Bannerjee  AC 322 that:
“A claimant who has been subjected to legal proceedings improperly instituted against him will naturally be aggrieved by the institution of those proceedings; be they criminal or civil proceedings.”
The claimant was therefore entitled to sue for damages for malicious prosecution if she felt that the said proceedings were improperly instituted. Clerk and Lindsell on Torts define the ingredients of malicious prosecution as follows:
“Essentials of the tort of malicious prosecution: In action of malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge. Secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the claimant.”
There is no doubt that the State instituted criminal proceedings against the claimant and that the determination of that case was in the claimant’s favour. That is, the first two elements have been proven.
The third element that needs to be proven is whether there was reasonable and probable cause. On this point, the question to be considered is: were the proceedings instituted without reasonable and probable cause? In Hernimas v Smith  AC 305 the House of Lords approved the definition of reasonable and probable cause of Hawkins, J in Hicks v Faulkner, which was stated as follows:
“An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautions man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” This, as it stands, takes us back to the audit report.
Based on the facts of the case, I hold that the state was justified to institute criminal proceedings against the plaintiffs. The report revealed rampant abuse of resources, forgery and outright sophisticated means of stealing tax payer’s money. Overall, it also highlighted a breakdown in internal financial control mechanisms in government. In these circumstances, I hold that the proceedings were instituted with reasonable and probable cause, I subsequently hold that the claimant was not maliciously prosecuted.
2.5Loss of business
The last ground of the claimant’s action is loss of business. She averred that because of the criminal prosecution, she lost business. As per JAMES B. MASONGA V SANI TYRES LIMITED civil cause no. 1119 of 2003, it was stated that the measure of damages should be the level of business inconvenience occasioned to the claimant. Here the claimant has put the court in an unenviable position. On one hand, it is not clear whether she is seeking for loss of business arising from what she claimed was a breach contract, and on the other, future profits from her business. Nevertheless, the court will consider both.
On loss of businesses presumably because of the said breach of contract, the reasoning earlier on given still holds, as such, this court will now proceed to look at the second limb of the argument namely, future profits. In Victoria Laundry (Windsor) Ltd v Newman Industries Ltd  2 KB 528 the court was faced with a similar situation. The question was whether the claimant could also claim the extraordinary profit it would have made, had it been able to take advantage of a certain lucrative Ministry of Supply contract. Asquith LJ in the Court of Appeal held that Newman Industries only had relief to be compensated for the ordinary, not the extraordinary loss of profits. I.e. the future profits were not considered.
In Double G Communications Ltd v. News Group International Ltd  EWHC 961 Eady J, when confronted with the scenario of having to consider future profits of a business, had this to say:
“The exercise I have to perform is by no means an easy one, since it is important as a matter of principle not to depart from the task of estimating probable loss and cross over into the realm of pure guesswork.”
This is no different from the present case, it is a whole lot difficult to estimate the said loss of business in the absence of objective evidence, as a result, chances are high that this will turn out to be a silly and baseless guesswork. I therefore also order accordingly that this ground fall.
Frivolous suits aimed at systematically fleecing the government should not be tolerated and it were up to the court, discourage the filing of the same. Not only do they waste the court’s time, but they are also costly. It is hereby held that Grezelder Wa Jeffrey has no proper grounds to succeed in this action. As such this action is dismissed with costs to the government.
Lord Arnold (Ine Ndi Nonte)
The two colleagues above have already exhausted the narration of material facts and applicable laws and or their discussions. I will not replicate. I will sail strait to the determination of the substantive issue:
In this material case, the appellant (addressed as Mrs. Greseldar Jeffrey) claims K70 billion from Malawi Government as losses accrued from the year 2000 after an arrest. According to the appellant, the claimed loss arises from breach of contract and loss of profit through devaluations. It is a settled universal law and norm that any ‘compensation claim’ must be perfectly adduced with facts and as an aftermath, the jury must endorse compensation valuation. Responding to this immediate requirement of the rule of law, the court solely sits to test validity of K70 billion loss as claimed by the appellant.
According to a fundamental principle in common law as regards to pecuniary compensation, “a claimant is entitled to a monetary compensation equivalent to an income he or she would have amassed if he had not sustained a wrong for which he is seeking reparation from”. In simpler terms, the underlined objective of the norm is to alienate “theft by trickery” or “organised corruption” through compensation over valuations.
My opinion agrees with a verdict in Ratych v. Bloomer, (1990), 1.S.C.R, 940 at 962-963) in which the jury clearly and strongly started that the actual pecuniary loss by the plaintiff must the actual amount of the reward. On numerous occasions throughout the period, the claimant has totally failed to relay sound justification for an upward adjustment from an initial K900 million to K12, 135, 984, 477 (read as “over K12.1 billion”) then to K70 billion compensation claim. It is from this fact deficiency that the K70 billion aver by the appellant is annulled.Follow and Subscribe Nyasa TV :