By Deogratias Mmana:
The High Court sitting in Lilongwe has thrown out an application by the Anti-Corruption Bureau (ACB) to further freeze bank accounts for former president Peter Mutharika.
High Court Judge Redson Kapindu declined to grant the order because ACB failed to justify its application.
Among other things, the court faulted the ACB for failing to prove that its application was a matter of urgency.
The court further chided the graft-busting body for court-shopping in the matter, arguing that no justification was given for ignoring the subordinate court where it first got earlier restriction orders.
“This court strongly discourages the practice of needlessly hopping from one court to another seeking essentially the same remedy or a remedy of essentially the same effect,” the ruling reads.
“Unless otherwise motivated, which motivation has not been provided in the instant case, this is an application which ought to have been brought before the same court that has active proceedings on the restriction notice relating to the same bank accounts, and I so direct,” Kapindu rules, and adds: “For the foregoing reasons, the application for a preservation order herein is declined.”
The court has ordered the ACB to file an inter-partes summons and not ex-parte if it thinks it has a strong view that a preservation order is still to be sought and granted by the High Court.
In inter-partes hearings, all interested parties are served with adequate notices and are given a reasonable opportunity to attend and to be heard in proceedings. In ex-parte hearing, a judge or justice determines the outcome of a case without requiring all of the parties to the dispute to be present
The ACB, through senior investigative officer Mary Kambalu, filed an ex-parte application asking for a preservation order to freeze Mutharika’s bank accounts— 0140070547400 and 9100003279496 held at Standard Bank, Capital City Branch, in Lilongwe.
The ACB alleges that Mutharika committed offences that include tax evasion and abuse of office through the clearing of goods, money laundering and abuse of office by individuals who were working with him.
In the ruling, which was made on May 21 2021, the High Court finds several faults with the ACB’s application. Among them is the poor filing of court documents and factual error on Mutharika’s dates of tenure of office.
“I must quickly observe that I noted a multiplicity of mistakes indicative of either lack of scrupulous care in preparing the court documents herein, or perhaps there was undue haste in preparing them,” reads the ruling, in which ACB is asked “to do better in future by paying greater attention to court papers before they are filed”.
Kapindu also says the ex-parte summons from ACB should have been filed under sections 107 and 108 of the Financial Crimes Act (FCA), as opposed to Section 65 of the same which the ACB used.
“While all these sections, that is to say, section 65 of the FCA on the one hand and sections 107 and 108 of the FCA (Financial Crimes Act) on the other, deal with preservation orders, they do so in different contexts, and this is an anomaly in the claimant’s documentation that should have been avoided. Good preparation of court documents is a virtue,” the ruling reads further.
The judge also corrects ACB on a factual error that Mutharika was president from May 2014 to July 2020. The court says Mutharika was president from May 2014 to June 2020.
The ACB also goofs by not disclosing the amount found in Mutharika’s bank accounts and which it wants to freeze.
“The court should know what exactly it is that is being called upon to preserve,” goes the ruling.
The court also finds it strange that although the ACB was asking for another preservation order, the bureau did not explain what became of the restriction notice which was renewed on December 7 2020, at the expiry of the three months that were granted.
ACB was further granted another renewal of restriction notice on March 23 2021 by the Chief Resident Magistrate in Lilongwe, which expired on June 23 2021. The bank accounts under contention were among those in the application.
The court further faults ACB for not including the information of the renewal order of 23rd March 2021 in its application to the High Court.
Last week, ACB spokesperson Egritta Ndala announced that the bureau’s officials would interrogate Mutharika on issues such as importation of cement using his Tax Personal Identification Number, among others, from today.