Mulli protégé Kanyoza appeal judges rule: ‘Errors of law’

Blantyre-based businessman Davie Kanyoza and a protégé of the once mighty business magnate Leston Mulli , has filed for appeal against the Constitutional Court’s ruling to remove him as party in a case  where Mulanje charity worker Mary Woodworth is contesting a government decision to lease her piece of land to the businessman.

A panel of three High Court Judges consisting of Justices Healy Potani, John Chirwa and Micheal Mtambo wondered why Kanyoza wants to join the constitutional case when he was not the one who made a decision to grant him the lease.

The piece of land which was given to Kanyoza by the then Minister of Lands John Bande (now Minister of Mines) was already declared to have belonged to Woodworth and her aunt Lisnet Gremu by both the High Court and the Malawi Supreme Court after a protracted legal battle of the land between Mulli and the two women.

But in a twist of events, government, under the late Bingu Mutharika regime, grabbed the land from Woodworth and leased it to Kanyoza, a business partner and protégé of Mulli.

Kanyoza’s attorney, Chancy Gondwe: Appeal

However, Woodworth and Gremu, who run an orphanage in Mulanje called Friends of Mulanje Orphanage (FOMO),   asked the Chief Justice to declare the matter as a constitutional case where they want the court to declare that the decision by Minister Bande to grant the lease to Kanyoza was unconstitutional.

On January 8 the constitutional court denied Kanyoza the chance to be part to the proceedings.

Appeal

In an appeal filed at Supreme Court of Appeal on January 9, 2013, Kanyoza outlined several grounds, faulting the Constitutional Court’s decision for striking him out as interested party in the case despite the declarations to be made by the court will affect him as the lease holder.

The appeal was made just a day after the Constitutional Court dismissed an Order High Court judge, Justice Anaclet Chipeta gave out, allowing Kanyoza to join the proceedings as interested party.

“Take notice that the interested party being dissatisfied with the ruling of the Constitutional Court contained in the judgment dated 8 January, 2013. The learned judges erred at law by striking out the interested party when the declarations sought will affect his proprietary interest in the said land the government of Malawi responsible for land having lawfully leased the same to the interested party,” read in part the grounds for appeal.

“The learned judges erred at law by holding that a procedural error committed by the interested party in terms of Rule 8 (2) of the High Court Procedure on the interpretation or application of the Constitutional Rules cannot be cured under order 2 Rule 1 of the Rules of the Supreme Court,” Kanyoza submitted.

Kanyoza through his lawyer, Chancy Gondwe of Chagwanjira & Company is challenging the court that it erred in holding that, despite being a leaseholder, is not going to be affected by its declarations and yet his evidence could help the court arrive at a just decision.

He further argued that the learned judges failed to appreciate the legal position that their judgment may result in him losing his proprietary right over the land without hearing him contrary to clear dictates of Section 43 of the Constitution.

“The learned judges erred at law by failing to appreciate that no court of justice can be called upon to make a declaration, which is always a discretionary remedy when obvious injustice would be visited upon persons who have not been heard”.

He added: “The learned erred at law when they failed to appreciate that the present proceedings are constitutional judicial review proceedings under Section 5 and 108 (2) of the Constitution and not the usual judicial review proceedings under Order 53 of RSC and as such the interested party could still be party to the proceedings”.

Kanyoza has since prayed that the judgment by the Constitutional Court be reversed and that the appeal do succeed with costs.

“The learned judges erred at law by failing to appreciate that the complexion of parties to Civil proceedings changes when there is a prayer for a declaration…In all the circumstances of the case, the ruling of the learned is not supported by the evidence before it…The learned judges erred at law in condemning the interested party with costs”.

Background

On January 8, the court upheld arguments by Woodworth and Gremu that the Order to allow Kanyoza joins the judicial proceedings was irregularly obtained contrary to Constitutional and Supreme Court regulations.

“The court agrees with the applicant that Mr. Kanyoza did not follow court rules and procedures in obtaining the order to be part of the case and his position in the case is not declared rising questions on his intentions for joining the proceedings. The order could not, therefore, be maintained. We will allow and grant the applicant’s plea to strike off the order of joiner,” reads part of the court’s ruling.

The court also dismissed the claims made by Kanyoza’s lawyer that his client would be affected by the court’s declaration on the matter, and that being a lease holder, was entitled to be part of the case as interested party.

“Mr. Kanyoza has not declared his position in this case. And he can’t join it as a respondent because he has not applied for that, and cannot be an interested party either”.

Woodworth and Gremu objected to the Kanyoza’s interest to be part of the proceedings on argument that the case is concerning decision made by Minister of Lands and Commissioner of Lands in granting the lease, and therefore no need for him to join it.

The Constitutional Court is expected to commence the judicial review on February 11, to examine how the minister exercised his powers to lease the said land to Kanyoza, whose long time friend to Leston Mulli own Chitakale Plantations Limited which is under Mulli Brothers Limited Holdings.

The company has stakes in transport, agriculture, tourism, pharmaceuticals and telecommunications, among others, and enjoyed multi-billion government businesses under the Mutharika regime.

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