Mulli Brothers Limited, which sued government after the company claimed it was removed from the list of successful bidders to transport subsidy fertiliser, has lost its case at the High Court.
The High Court’s Commercial Division Judge Michael Mtambo dismissed Mulli’s action with costs in Blantyre for not following procedures in commencing the court action.
During the Joyce Banda’s administration, Mulli Brothers reportedly qualified for an award of a contract with Ministry of Agriculture, but government did not award the company the contract.
Having qualified to be awarded a bid, the court learnt, the company was wrongly removed from the list of successful bidders on the “baseless false ground” that the company was under court investigations and on the directive of the then minister of Justice and Constitutional Affairs and Attorney General, Ralph Kasambara, that the company must not be awarded any bids.
It was the company’s case, represented by lawyer Tamando Chokotho, that it qualified on the list of 44 required transporters but was prevented from getting the contract by some political machinations.
The company demanded special damages for the contract worth K296 237 550, in the alternative, special damages for the unlawful non-award of the company’s bid and costs of the action.
But the AG’s office, represented by Wongani Mvula, asked the court to dismiss the company’s action, arguing that it failed to give notice of intended suit to government; failed to make a query to the procurement agency regarding the non-award of the contract as required by the Public Procurement Act and wrongfully commenced court action by Originating Summons in a case having substantial dispute of facts.
Section 37 of the Public Procurement Act provides that any bidder who claims to have suffered or may suffer loss or injury due to breach of a duty imposed on the procuring entity by the Act or the Regulations may seek judicial review in accordance with Part III of the Act.
The law also requires that anyone who intends to sue the AG must give a three months notice before any documents are filed in court.
Mvula argued the company wrongly commenced the action by Originating Summons instead of judicial review in a matter involving questions about the discharge of public duties by a government agency.
In his judgement, Mtambo agreed with Mvula that the commencement of the action by way of Originating Summons was wrongful in terms of Order 2 rule 2 of the High Court Commercial Division Rules, 2007.
He said this action is only maintainable where there is no substantial dispute of facts.
The judge said it was clear Mulli Brothers did not plead breach of contract, but wrongful unconstitutional and unlawful interference with the company’s bid or in the alternative unlawful non-award of the plaintiff’s bid contrary to the Public Procurement Act.
Mtambo said: “It is the finding of this court that the general provision in Order 65 of the Rules of the Supreme Court which allows service by post, being subsidiary legislation, cannot override the specific mandatory requirement of a statute to deliver a letter of notice of intended suit to the office of the Attorney General.
“The inconvenience and expense to be associated with delivering the letter to the office of the Attorney General as required by law should not be the concern of this court which is only mandated to interpret and apply the law and not legislate through its judgments. In the circumstances, I dismiss the plaintiff’s action with costs.”