High Court Judge Kenyatta Nyirenda has dismissed, with costs, an application for an interim mandatory injunction by the Tobacco Farmers Profit and Income Generating Association (Tofapia) against the Tobacco Commission (TC).
On April 16, Tofapia filed with the court an ex-parte application for an order of injunction compelling the first defendant, TC, to recognise it as a tobacco grower association for the purpose of the new Tobacco Industry Act until determination of substantive matter or further order of the court.
Business News understands that only five tobacco associations have qualified to operate in the 2020 tobacco market season. These are National Association of Smallholder Farmers (Nasfam), Tama Farmers Trust, Phindu Tobacco Growers Association, Farm Produce and Marketing Association and Mchikumbe Smallholder Farmers Association.
Challenging the decision by TC not to license the association, Tofapia, in its application, faulted the commission’s decision to reject the use of Tobacco Growers Registration (TGR) number as a criteria to calculate number of growers of an association for the purposes of registration and licensing of Tobacco Grower Association under the Tobacco Industry Act.
Section 52 of the Tobacco Industry Act says that an association of tobacco growers shall have a membership of not less than 5 000 growers and shall be incorporated under the Trustees Incorporation Act or the Co-operative Societies Act.
In his sworn statement, Tofapia president Kennedy Kholo also faulted the office of the Minister of Agriculture over its failure to decide on its appeal, while also arguing that the association is a legal person which is duly incorporated under the laws of Malawi.
Among the reliefs sought from the court, Tofapia wanted a permanent order of injunction compelling TC to register the association as a tobacco grower association under the Tobacco Industry Act.
Counter-arguing, TC deputy chief executive officer Levi Phelani, in his sworn statement, argued that Tofapia had failed to demonstrate that it has any interest that it seeks to protect, adding that it had no ‘locus standi’ to bring the application before the court of law.
Phelani also informed the court that the association only had 4 614 registered growers against the Acts’s required 5 000 members.
In his 16-page ruling on the matter, seen by Business News, dated May 4 , Judge Nyirenda faulted Tofapia, arguing the association neither filed a substantive claim nor alluded to a claim that it intends to lodge against the defendants, TC and Minister of Agriculture.
“…I have examined the evidence before the court and I have great difficulties in understanding how the claimant expects this court to grant such a rare order as an interim mandatory injunction on the heavily contested sworn statements filed with the court,” reads the rulling in part.
In an interview yesterday, TC corporate planning and development manager Hellings Nasoni said when licensing a grower association, the commission follows guidelines as stipulated in the Tobacco Industry Act.
