Children of former president the late Bingu wa Mutharika, Duwa and Tapiwa, have challenged a default judgement which awarded lawyers Gift Nankhuni and Partners K3.5 billion (about $8.7m) as legal fees for processing letters of administration in respect of the deceased estate.
In an order granted on Monday, the High Court (Commercial Division) in the capital, Lilongwe ordered that the default judgement be set aside and that all goods seized by the Sheriff of Malawi, if any, be released to the Mutharika family upon payment of sheriff fees.
Frank Mbeta, a lawyer, in an affidavit in support of the ex-parte summons for stay of execution, argued that the Mutharika family was not served the writ of summons.
“The defendants [Duwa, Tapiwa and Estate of former president Mutharika] became aware of the suit through a newspaper publication and they were waiting for due service to be effected on them.
“The defendants noted that time is passing without being served with the said court process and they instructed my firm and Messrs John Tennyson and Associates to enquire with the court if at all the suit was indeed lodged and the status of the matter generally,” reads the affidavit in support.
The Mutharika family contends that the writ of summons that was supposedly served on them was sent to a wrong address, hence the non-receipt.
“Furthermore, the defendants have defence on merits to the plaintiff’s claim which is to the effect that the plaintiff was retained by Yeremiah Chihana who purportedly acted on behalf of the Estate Duty Commissioner. Thus the defendants never instructed the plaintiff to act on their behalf or at all,” argued Mbeta in the affidavit for an order of stay of execution.
The default judgement was delivered on Friday after the court noted that there was no notice of intention to defend having been served through post.
The court ordered payment of the sum of K3.5 billion being five percent of the value of the intestate Estate of the late Mutharika who died on April 5 in 2012 and government surtax.