Comesa court lacks jurisdiction in Malawi Mobile Limited case – AG

Attorney General Kalekeni Kaphale has argued that Comesa court lacks jurisdiction on the matter in which Malawi Mobile Limited (MML) a mobile phone operator licensed in April 2002 but faced political hurdles against rolling out its services in the country has lodged an appeal at the Comesa Court, challenging the Supreme Court of Malawi’s decision that reversed a 2002 High Court order to award the company a $66 million (about K11 billion then) compensation for loss of revenue for unlawful cancelling of contract.

Malawi legal team in Comesa court: Kaphale (right) and Itimu

Malawi legal team in Comesa court: Kaphale (right) and Itimu

Comesa court will this Friday determine on whether it will heed the call to drop the case as argued by Kaphale due to lack of jurisdiction or not.

Ministry of Justice spokesperson Apoche Itimu, who is among the team of State lawyers on the matter led by Kaphale, said Malawi government raised several preliminary objections on the hearing of the case and now hopes the case rules in its favour on the matter of jurisdiction.

“We raised a preliminary objection that that court has no jurisdiction and Macra ( Malawi Communications Regulatory Authority) to be removed as party,” said Itimu.

According to Itimu, MML also raised an objection that Supreme Court was improperly constituted.

MML was registered as a Private Company under registration number 6375 at the Office of the Registrar of Companies in Blantyre and a Mobile Telephone Licence, valid for 15 years, was issued to MML on April 19, 2002 by MACRA.

The initial investment capital outlay was US$15 million to increase to US$ 40 million in 10 years. The company is owned by three investors namely Finanz Capital Management Private Limited of South Africa with 55 per cent Shares, Finanz Holdings Limited of Mauritius with 35 per cent Shares, and 3x Telecommunications with 10 percent Shares.

High Court Commercial Division ruling by Judge  Frank Kapanda on April 20 2012 that awarded MML US$66, 85 Million (K21, 376 Billion)  as damages for ‘unlawfully’ cancellation of mobile licence agreement between MML and MACRA.

Macra in 2005 cancelled a renewed mobile licence agreement with MML following unlawful and unconstitutional action of then Attorney General (AG) Ralph Kasambara decision to suspend the Macra board and invalidating the resolutions of the board retrospectively.

But Kelekeni Kaphale , the Attorney General, when he represented Macra as a private practise lawyer, quashed MML for claiming such amount “because it failed to prove its financial capacity. Three years after given the contract, it didn’t set up any structure in Malawi worth to demand such claim.”

In the appeal to Comesa court , MML is questioning the role that Justice Rezine Mzikamanda played in the delivery of a Supreme Court ruling that saved the Malawi Communications Regulatory Authority (Macra) from paying the company the compensation.

MML lawyers allege in submission to the court that Mzikamanda did not form the panel – comprising current Chief Justice Andrew Nyirenda, Justice Edward Twea and Justice Richard Chinangwa – that heard the matter, but illegally participated in the formulation of judgment.

“When the Supreme Court sat to deliver or pronounce the judgment, it did so as part of an exercise to discharge its constitutional mandate of determining the matter and, therefore, it was not lawfully open to the Supreme Court to dilute its composition and allow the quorum to dwindle to two Justices of Appeal or permit the quorum to increase to four Justices of Appeal,” reads in part grounds of appeal filed by MML lawyers.

“The proceedings for judgment delivery on March 10 2015 cannot and should not be wished away as inconsequential in determining as the 1st Respondent would like this Court to believe.”

But appearing before Comesa Court sitting in Lusaka, Zambia on Friday, Kaphale asked the court to drop a case due to what he said is lack of jurisdiction on the matter as the ground for the preliminary objection to the court’s handling of the matter.

Kaphale challenged that narrative and insists that the highest court in Malawi interpreted the law correctly. He even questions the appeal process, including the inclusion of Macra as a party.

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19 thoughts on “Comesa court lacks jurisdiction in Malawi Mobile Limited case – AG”

  1. Phala says:

    Nyasatimes, you should have reported the basis for Kaphale’s argument that the court lacks jurisdiction. That is the essence of the your article here.

  2. Mike says:

    U bunch off idiots when an investor comes to Malawi you better kiss there balls because theses company’s create Jobs , the politicians who greedy and have no clue in bussiness they should stick to politics , MML was interfered with rolling out its net work until Kasabara extorted money from other players so that he made sure MML will not roll out

  3. Allan Z Ntatha says:

    These wigs are some of the most shameful relics of racist colonial mentality. They must be abolished immediately.

    Zopasa manyazi

  4. Mandela says:

    Judge ameneyo asamuke mumalawi isanathe 24hrs

  5. na says:

    The sins of Kasamabra!

  6. Mlauzi says:

    Much as I am a lay man I think the COMESA court indeed lacks jurisdiction in this matter

  7. zon says:

    Kasambara’s mistake will haunt the people of Malawi

  8. Myao says:


  9. Kabilaboza Kabuka says:

    Malawians let’s be patriotic whenever dealing with foreigners. As per this report, mml had no visible structure by then, which was also in contrary to the contract agreement, so why did this judge favoured mml , the biggest defaulter?

  10. munthu wa munthu says:

    Nanga enawo sagwira ku boma amataniko kumeneko kampani yawo yapatsidwa ntchito kapena tipaone bwinotu pamenepa

  11. Nyambalo says:

    Kapanda, wadyapo zake and is willing to sell the country including his mother!!!! If he goes to india and see how blacks are treated or how he would be treated he would forever barry his head in shame for selling his country to indians where they are in south africa or not. They are same. Even during slavery days black person will sell fellow black then turn round and blame someone else for bein in perpertual misery and peverty.

  12. Steve says:

    If they could be having K40million in 2012 (10 years from 2002) how can they claim for US$66.85million even without erecting a building in the country for their film? Do they want to reap where they havent sown? Do they think we are so foolish to give them such money? Did Frank Kapanda pocket something from these thieves (or was he promised something by them) to award them so huge a sum? Anyway, is Frank Kapanda a Malawian? These lawyers do amaze me. Why fight for thieves who want to rob us of our hard-earned taxes? DONOT GIVE THEM ANYTHING AND EVEN THE LICENCE!! THEY GO ANYWHERE AND ROT.

  13. XXXXXXXXXXXX says:

    Sorry MML we dont have free money for incompetent companies

  14. bad man says:

    tinanena kale ife, law ya chanco ndiya milandu ya nkhuku kapena chieftaincy basi. what kind of thinking person can award 60 mil USD to gangsters that failed to even produce a jingle for their company on the radio? ngati wina anadyapo apa, awonekela ng’amba chifukwa pano malawi ilibe money iliyonse. muyisanza dollar imeneyo

  15. Katakwe says:

    Once again, Malawians paying the price for the stupidity of Kaphale and Ben Phiri.

  16. Nathenje trading centre says:

    nayenso Judge Frank kapanda ndi opepela bwanji,ukuwapatsa atsamundawa ndalama zonsezo chifukwa chani,even if the case was favouring them but you should be a little bit tougher on Foreigners just like the way we are treated in other countries.
    South Africa,Mauritius mayiko olemera kale awa, inu mukutengaso ndalama za amphawi oti akufa ndi njala nkukawapasaso,use common sense sir

  17. Nathenje trading centre says:

    Regardless of our political affiliations I think we should all be patriotic on this case and support the State(Malawi Government )
    These guys from MML want to punish innocent poor Malawians and steal from our already depleted Coffers.

    How did they come up with that whooping $66 million,if they say it could’ve taken them up to 10years to invest $40 million in their business.

    Malawians are not as sleepy as you Foreigners think,we are geniuses and come Friday we are definitely winning the case.

  18. ngerengere says:

    This is a lot of money from a poor country please fight as much as you can and avoid stupid errors when doing our work in various office becocoz the money does not come from personal pockets

  19. WAKUDA KAMANGA says:

    Ndiye mpatseni munthu kodi amalawi mudatani????????.

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