Bingu estate: State lawyers query transfer of case to Judge Dunstain Mwaungulu

State lawyers on Monday queried why the matter was moved from Zomba High Court registry under Judge Godfrey Mwase to Blantyre where it is now being heard by Justice Dunstain Mwaungulu.

Led by Lusungu Gondwe, the state lawyers argued that the transfer of the case was without proper application. He asked Justice Mwaungulu to discharge an order obtained by the Mutharika estate administrators to have the matter transferred to Blantyre from Zomba.

The transfer order was granted ex parte after one of the lawyers representing the estate administrators, Modecai Msiska, argued before Mwaungulu that moving the matter to Blantyre was going to be cost-effective because lawyers representing both parties in the matter are based in Blantyre.

However, Gondwe, argued that the cost of litigating the matter in the Zomba District Registry, about 65 kilometres away from Blantyre, could not be prohibitive and neither would it occasion undue hardship to the defendants (the Mutharika family) who he said have retained five legal firms to represent them.

But Justice Mwaungulu in his determination after arguments and counter arguments, ruled out that the matter could be held at Blantyre High Court, saying both have the same jurisdiction.

Mutharika family –through its defence team which includes top notch lawyers  Msiska, Kalekeni Kaphale, Julius Nyambo and Frank Mbeta- is challenging Malawi government for freezing all the accounts except one which government is claiming unpaid duty fee amounting to a K5 billion (about $12.5m)  .

Mutharika's lawyer Ulaya (L) and Lusungu Gondwe lawyer for the state at the court on Bingu's estate legal battle
Mutharika’s lawyer  Louis Ulaya (L) and Lusungu Gondwe lawyer for the state at the court on Bingu’s estate legal battle

They want the court to reverse the freezing of the accounts, arguing that the order lacks legal basis.

“There was no legal basis for the order as no estate duty had properly or validly be accessed and communicated to the Estate for acceptance or challenge,” the lawyers for Mutharika family argued.

They further said the order did not consider the welfare of the innocent employee at the Estate and other companies doing business with it who need at east K53 million to be paid.

“No consideration was given to the welfare of persons employed by the estate or trusts established by the deceased who required to have their employment rights respected.”

But Gondwe argued that one account which had at least K10 million was not frozen to carter for the employees’ welfare.

Mutharika family also submitted to the court that there are new administrators of the deceased estate require access the bank accounts and records of the estate.

Administrators of the estate are lawyers Kalekeni Kaphale and Modecai Msisha representing Mutharika’s daughters, Duwa and Tapiwa; and James Tomoka for former first lady Callista.

The matter was adjourned to this Thursday after State lawyers asked the court to allow Chief State Advocate Dr Zolomphi Nkowani – who had an appointment with a medical doctor- to attend the proceedings.

This however did not please Mutharika family lawyers who accused the State of failing to carry out its enhanced values by not attending to court sessions.

Government, through an estate commissioner, is claiming the K5 billion (about $12m) estate duty cut from Mutharika’s controversial deceased estate estimated at K61 billion by a private evaluator the State engaged.

Mutharika died of Cardiac Arrest on April 5, 2012. He ruled Malawi from 2004 until his death.

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