Lawyers’ fees in appeal case

• Demand K348m from APM, MEC in preliminary appeal case

As petitioners and respondents in the elections case brace for the commencement of hearing of the appeal case set for April 15, they are now in court tussling over costs for the latter’s first loss.

The petitioners’ lawyers are claiming K348 million as legal fees for a preliminary appeal case, which President Peter Mutharika and the Malawi Electoral Commission (MEC) as first and second appellants, respectively, filed at the Supreme Court of Appeal on June 12 2019 to have the case of the presidential election thrown out at the Constitutional Court.

The Supreme Court of Appeal dismissed the application on June 22 2019, paving the way for the Constitutional Court to start hearing the case until February 3 2020 when it nullified the May 21 2019 presidential election results, thus overturning Mutharika’s win with 38 percent of the total votes.

Chilima’s lead lawyer in the case, Chikosa Silungwe, confirmed filing the application after they failed to agree with the commission on the payable amount within 14 days as ordered by the court on February 3 in the historic presidential election nullification case.

Meanwhile, the 12 lawyers for the two petitioners have also filed an application requesting High Court and Supreme Court of Appeal registrar Agnes Patemba to assess and determine legal costs to be settled by MEC. However, the court is yet to set a date for hearing of the matter.

The K348 million which MEC and Mutharika will jointly foot is a small fraction of the money taxpayers are expected to folk out on behalf of MEC to the same lawyers after they successfully defended Chakwera and Chilima in the presidential election nullification petition which ran for eight months.

But in the February 3 2020 judgement, the ConCourt ordered MEC to pay the legal costs for the petitioners while Mutharika was directed to pay own legal costs.

On June 12 2019, Mutharika and MEC filed a Notice of Preliminary Application at the Constitutional Court for an order that the presidential election petition filed by Chakwera and Chilima be struck out for being filed “irregularly” and “illegally”.

In their submissions, MEC lawyers argued that the petitions by Chakwera and Chilima were irregular and illegally because they were filed outside the stipulated seven-day period after voting.

They focused on alleged absence of payment receipts as evidence that Chakwera’s case was filed outside the legal period and suggested that the party possibly committed fraud while registering the case.

But in its ruling on June 22 2019, a five-judge Constitutional Court panel of Healey Potani (chair), Dingiswayo Madise, Redson Kapindu, Mike Tembo and Ivy Kamanga ruled against Mutharika and MEC. In turn, the two respondents appealed to the Supreme Court.

But after hearing the respondents’ argument a panel of seven Supreme Court of Appeal judges led by Chief Justice Andrew Nyirenda also dismissed the application with costs and further punched holes in it, citing irregularities in the manner it was filed.

According to court documents Weekend Nation has seen, for the services it rendered in the appeal case, Chakwera’s legal team is demanding K224 917 170 from Mutharika and MEC while Chilima’s lawyers want K122 597 400.

Chakwera’s legal team comprised of Mordecai Msisha, SC; Titus Mvalo, Pempho Likongwe, Isaac Msongea, Innocensia Ottober, Chrispin Ndalama and Charles Mhone while Chilima had Chikosa Silungwe, George Mtchuka Mwale, Bright Theu, Marshall Chilenga and Khumbo Soko.

“The bill of costs is pursuant to order of the court [Supreme] made onthe 15th August 2019,” reads part of the Notice of Appointment for assessment of costs.

The legal bills covered the period the lawyers spent on preparing for the case, court attendance, care and conduct, instruction fee, disbursement, taxation costs and tax and levy.

Lawyers charge their fees per hour and on average an hourly rate for a senior counsel is K60 000, for a lawyer with not less than 10 years is K40 000 and the charge for lawyers with less than 10 years at the bar is K30 000 per hour.

Since the presidential elections case started, Mutharika and MEC have lost several cases at both the Constitutional Court and Supreme Court of Appeal.

For instance, last month the Constitutional Court dismissed an application by the two who wanted it to postpone enforcement of its February 3 2020 ruling on the basis that, among others, claiming that its implementation would have constitutional and financial challenges should their appeal succeed in the Malawi Supreme Court of Appeal.

And just three weeks ago, the Supreme Court threw out an appeal by the two on the same. Nearly all the applications have been dismissed with costs.

on Friday, representatives of legal teams for Chakwera, Chilima, Mutharika and MEC appeared before the senior deputy registrar of the Supreme Court of Appeal and High Court Justus Kishindo for hearing of assessment of the costs.

John Gift Mwakhwawa, who, alongside Charles Mhone, represented Chakwera said in an interview, Kishindo adjourned the hearing after lawyers of MEC and Mutharika requested to file points of dispute.

“So, the court ordered that we should respond to their applications within 21 days from the time they will have filed.

“Basically the court wanted to be better assisted in terms of assessing the costs but we were set to proceed with the hearing. Otherwise, the court will be assisted accordingly on points dispute and our responses,” said Mwakhwawa.

Once the filing has been made, the court will set a new date to hear MEC and APM arguments for disputing.

During the hearing, Bright Theu and George Mtchuka Mwale while Noor Alide and Tamando Chokotho represented Mutharika and MEC, respectively.

The ConCourt ruling nullified May 21, 2019 presidential elections and reverted the presidency positions prior to the polls, demoting Mutharika’s running mate Everton Chimulirenji and reinstating Chilima.