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.

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.

Sharing is caring!