The Supreme Court of Appeal on Wednesday refused to have its two judges recused from a case Malawi Savings Bank (MSB) is claiming K3.2 billion from Mulli Brothers Limited (MBL).
The company earlier last year obtained a Supreme Court order from a single judge, Richard Chinangwa, which stayed court proceedings at the High Court’s Commercial Division in Blantyre where the company accused presiding judge Michael Mtambo of possible bias.
MBL obtained the order after Mtambo refused to recuse himself from the case.
The Supreme Court order effectively stopped the proceedings at the Commercial Court.
But MSB lawyers applied for removal of the order at the Supreme Court of Appeal to allow the proceedings at the Commercial Court to resume.
When the matter resumed on Wednesday before a three-judge-panel of Andrew Nyirenda, Edward Twea and Jane Ansah, lawyer representing Mulli Brothers, Chancy Gondwe, raised an objection, asking for removal of Nyirenda and Ansah.
Gondwe argued the two judges had knowledge of the matter, having rejected an earlier appeal on a different issue when the matter came before the Supreme Court they referred it to the Commercial Court.
Gondwe feared their knowledge of the matter would prejudice their ruling.
The lawyer also asked for dismissal of the matter, arguing there was no notice of appeal and there was no ruling the MSB was appealing against because the order by Chinangwa was not on court record.
But MSB lawyer Alinane Kauka, while admitting the order was not on record, recollected what it had stated, said what he wanted was for the court to rehear the matter.
But Gondwe argued courts are courts of records and the Chinangwa order should have been on record to allow the Supreme Court appreciate the arguments.
Making a ruling on the application to have the two judges removed from the case, Justice Nyirenda said they would not because the earlier matter they handled, despite being the same case, was on different issues.
Nyirenda, while admitting there was no appeal notice or an appeal, said those were procedural matters and the MSB be given time to sort that out.
The court set aside 21 days to allow the court and parties put the records in order before the matter resumes.
Mulli Brothers during the former president the late Bingu wa Mutharika obtained an overdraft from MSB, but following the company’s alleged failure to settle it, the government owned bank turned it into a loan.
MSB will be fighting to have the matter returned to the Commercial Court but Mulli Brothers would be arguing why they do not want Mtambo to preside over the matter.