Supreme Court dismisses contractor’s bid
Malawi Supreme Court of Appeal has dismissed an application by China State Construction Engineering Corporation to set aside execution of a High Court judgement ordering it to pay Fisd Limited $2 million (about K1.7 billion).
In his judgement, Justice of Appeal Charles Mkandawire observed that the company did not exhaust all remedies in the High Court of Malawi and consequently ordered it to head back to the lower court.
He said: “The appellant [applicant] urged this court to take into account Section 22 (1) (d) of the Supreme Court of Appeal Act which allows this court to make such order as interest of justice may require.
“My simple understanding of this section is that it refers to a situation where the court has heard an appeal or on hearing of an appeal. Unfortunately, this is not the situation at hand.
“I, therefore, order that the order of stay of execution pending appeal granted ex-parte herein in favour of the appellant be vacated. The appellant to revert to the court below and exhaust the available remedies in accordance with the rules. This application is dismissed with costs.”
In an interview, lawyer representing Fisd, Gift Nankhuni, expressed delight at the judgement, saying they will now fight for execution of the High Court determination.
On his part, lawyer for the Chinese firm, Pempho Likongwe, said he was still consulting his clients on the way forward.
Court records show that on September 21 2021 the company filed with the High Court a notice and grounds of appeal and the same day also filed an ex-parte application to pay judgement debt by installments and staying execution pending appeal.
Section 10 of the National Industry Construction Council (NCIC) Subcontracting and Joint Ventures by Foreign and Malawian Firms Order of 2014 stipulates that a member practice, whether in a joint venture or subcontract arrangement, shall be responsible for 30 percent of works by volume and value.
