Comesa Court dismiss Malawi govt over jurisdiction on MML case: MACRA removed

Comesa Court sitting in Lusaka, Zambia, has thrown out an application by the Malawi Government which asked the court to drop a case where Malawi Mobile Limited (MML) a mobile phone operator licensed in April 2002 but faced political hurdles against rolling out its services in the country is challenging  illegal termination of the contract.

MML is contesting 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 leading the team of State lawyers on the matter led, raised several preliminary objections on the hearing of the case among them that Comesa court lacks jurisdiction on the case and also that MML rushed to the court as they were other means if seeking justice within Malawi legal systems before taking the matter to international court.

But in its ruling on Friday 20th November, 2015 Comesa court says Malawi being one of the nineteen State in the Common Market for Eastern and Southern Africa (COMESA) and the court has ruled that it has jurisdiction to hear the matter.

The Comesa court also ruled that MML exhausted the local remedies as its case was taken to the highest Court of Malawi.

Meanwhile, the court has accepted the application by the Malawi Communications Regulatory Authority (MACRA) which seek the court to remove it  as a party and the only party will be theGovernment of Malawi as the Comesa Court deals with state and Macra is not a state but an organ of government,

The court has since ruled that government of Malawi through the Attorney General shall henceforth appear in court on its own behalf and also on behalf of its corporate organ, Macra.

Meanwhile the court has accepted the application of MML through its lawyer David Kanyenda of Makiyi, Kanyenda and Associates for the court to proceed on the substantive issues in the appeal case .

MML  are seeking tt the nullification of the judgement of the Supreme Court of Appeal of Malawi on the grounds that the court was irregularly constituted and also sought the court for an award of 66,850.000 US Dollars in damages and 5% interest per annum from the date of the commencement of the action until the date of full payment .

But the court has ruled against the awarding legal costs and any other relief the court may deem fit and expedient saying the matter is yet to reach to the conclusions.

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.”

Meanwhile panel of five judges namely Justice Qinisile Mabuza,   Justice Ali Sulaiman Mohammed Justice Mary Kasango,   Justice Leonard Gacuko and Justice Clotilde Mukamarera say it’s too early to make a summary judgment , saying it’s  premature since it goes to the substance therefore it will be argued during the main or substantive matter.