Malawi Mobile Limited (MML), a private company that sought to establish a mobile phone network, has appealed against an earlier judgement of the Common Market for Eastern and Southern Africa (Comesa) Court that dismissed its K98 billion compensation claim.
In its appeal, MML, through private practice lawyer David Kanyenda, argued that the whole judgement and proceedings were tainted and affected by procedural and substantive mistakes of law.
The appeal follows an April 23 2017 decision of the Appellate Division Court of the Comesa Court which sat in Lusaka, Zambia and threw out MML’s claim against the Malawi Government and Malawi Communications Regulatory Authority (Macra) for illegal termination of a mobile network operator’s contract.
In an interview yesterday, Kanyenda said they noted many mistakes in the judgement; hence, the appeal.
He said: “I believe that the judgement and the entire proceedings in the Appellate Division were tainted and vitiated by procedural and substantive mistakes of law and fact which caused gross and manifest miscarriage of justice to MML.”
Kanyenda said the Comesa Court erred by allowing judges who reached their retirement ages for both High Court and Supreme Court to preside over the case. He said the judges were ineligible in that aspect.
He said: “Judge president Lombe Chibesakunda and Justice El Bashir are both ineligible for appointment and service as judges in the republics of Zambia and Sudan, respectively, having reached retirement age which is contrary to Article 20(2) of the Comesa Treaty.”
Kanyenda said Comesa Court rules provide for a review of the court’s judgement within 90 days of its delivery which they have done.
During the hearing in Lusaka, Attorney General Kalekeni Kaphale represented Macra and Malawi Government.
When contacted yesterday, Kaphale acknowledged receipt of the MML appeal, but refused to comment for fear of pre-empting his official response in court.
He said: “I have received and seen the appeal filed by MML. I am not in a position to respond to you about this issue now. We will respond to it in court.
“We have responses for each and every issue raised. If I respond now, I will pre-empt what I will talk in court. So, until the court sits, I will give out our position.”
The permanent seat of the Comesa Court is in Khartoum, Sudan, but sometimes the court convenes in Lusaka. It is expected that a panel of new judges will be appointed to preside over the matter once the application is assessed by the court.
Macra terminated MML’s contract over contractual disagreements that led to a protracted legal battle, which at some point saw the High Court of Malawi awarding K55 billion compensation to the company. However, the Malawi Supreme Court of Appeal reversed the lower court ruling.
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.
The company is owned by three investors—Finanz Capital Management Private Limited of South Africa with 55 percent stake, Finanz Holdings Limited of Mauritius with 35 percent and 3x Telecommunications with 10 percent shareholding.