Malawi Mobile Limited appeal at Comesa Court: Seeks compensation for unlawful cancelling of contract

Malawi Mobile Limited (MML) a mobile phone operator licenced 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.

Attorney General Kaphale: Defended Macra

Attorney General Kaphale: Defended Macra

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 government through Solicitor General Janet Banda and Ted Roka, a private practice lawyer at Kalekeni Kaphale law firm which is representing Macra in the case, has challenged MML’s argument as false and not supported by Malawian law, saying while Mzikamanda participated in the delivery of the ruling, he did not form part of the team that made the ruling.

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8 thoughts on “Malawi Mobile Limited appeal at Comesa Court: Seeks compensation for unlawful cancelling of contract”

  1. belekiya says:

    This provider failed to roll out. Period. They should not cheat about political huddles. All this time was there one political party ruling for them to cheat us that they faced political huddles? I hope the COMESA court will look at this fact. Not all ruling political parties can be of one accord to bar this provider.

  2. machine head says:

    TnM and Airtel don’t want competition as they comtinue to rip Malawians off. They paid off Kaphale and high court judges to kick MML out of the fair deal with Malawians.

  3. Thitherward Wendo says:

    I realize that these legal issues are important to the companies concerned, but the technical issues are more important to the rest of us.

    I am sick of spending 45 minutes pushing a trolley round Shoprite or Game only to find when I get to the cashier that the network is down and I have to abandon my week’s shopping in the store.

    It’s a waste of my time and a loss to the store of my custom and the custom of others similarly let down by the failure of the current internet service providers to provide a reliable service.

    Those responsible are reducing our rate of economic and technological development.

  4. machine head says:

    What was the judge doing in deliberations that don’t involve hhim? Mzikamanda was there to influence decision so that government is not embarrassed and Kaphale walks free. These people are hurting Malawi now investors will think twice before committing their money to the country. This judges failed to administer jistice.

  5. another cashgate.it was TMN and AIRTEL who bribed macra to reverse and cancel the MML Registration.so jealousy.we are tired of their high tariffs.pay them their damages.

  6. Mutu umodzi says:

    This is an embarrassment to the Malawi government

  7. Chamba says:

    Let’s hear what an impartial court will say. The shareholding looks suspicious

  8. Malawiyano says:

    Will this government be able to pay all that money ?

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