The Malawi Communications Regulatory Authority (Macra) has appealed against a High Court ruling that ordered it to pay Malawi Mobile Limited (MML) $66 million (about K11.2 billion) for breach of contract.
Macra lawyer Kalekeni Kaphale confirmed that they already filed an appeal challenging both the finding of liability and damages as awarded by the court to MML.
In his ruling on April 20 2012, Judge Frank Kapanda said he was surprised why Macra did not call any material witnesses to defend the case in which it was sued together with the Attorney General.
Kapanda said Macra did not defend the case despite filing with the court and serving MML with four witness statements sworn by Christopher Chibwana, Evans Namanja, Sheik Dinala Chabulika and Rose Phanga.
“I have it on good authority that failure to call material witness raises an assumption that such failure shows that the evidence would have been adverse to the party who would have called the witness.
“It is my judgment that the four witnesses were material witnesses. I, therefore, find and conclude that failure to call these important witnesses shows that their evidence would have been adverse to the defendants,” observed Kapanda before awarding MML $66 850 000.
However, Kaphale said Macra did not parade the four witnesses because the lawyers, who included those from the Attorney General, were of the view that MML witnesses had provided all the necessary facts through cross-examination.
He also said when the parties exchanged pleadings, it was clear that apart from challenging the level of damages which were $135 million, Macra also contested the assertion that there was a contract to extend the roll-out period which was alleged to have been breached.
According to the information about the contract, MML was given a 12-year contract in 2000 and were asked to roll out services within 12 months only to ask for an extension in March 2005.
The Macra board resolved to extend the roll-out period by 10 months subject to certain conditions and both parties were expected to sign an “irrevocable agreementâ€™â€™ which never happened because government dissolved Macra board and its decisions nullified almost at the same time.