Comesa court re-instates K98bn mobile phone case

The Comesa Court of Justice has restored proceedings of the K98 billion claim by Malawi Mobile Limited (MML) against the country’s telecom sector regulator, Malawi Communications Regulatory Authority (Macra).

A five-member panel of judges sitting in Nairobi, Kenya in July this year ruled that MML could still pursue the matter in the regional court after it was discontinued in May 2017, according to a summary of the ruling we have seen.

Confirmed receiving fresh ruling: Kaphale

In its brief ruling, the panel said after due consideration of the documents filed by MML “it is hereby ordered that the present application [to restore the case] be granted in the interests of justice and in the exercise of our inherent powers.”

Malawi Government and MML have been battling in court over alleged unprocedural termination of the latter’s mobile phone operator’s licence in 2005.

In April 2012, the Malawi High Court (Commercial Division) ruled in favour of MML and awarded the company damages amounting to $66.8 million for loss of business and ‘unlawful’ cancellation of its mobile licence agreement.

However, the ruling was overturned by the Supreme Court following an appeal by government, having argued that the company had no basis to demand such money.

In an interview on Tuesday, Attorney General (AG) Kalekeni Kaphale confirmed receiving the fresh ruling on restoration of the applications that had been withdrawn by the court.

The applications in question sought to challenge the jurisdiction of two judges—Judge president Lombe Chibesakunda of Zambia and Justice El Bashir of Sudan—who sat on the panel having retired from judicial posts in their countries.

“The challenge is yet to be given a date of hearing and we shall attend to give our position when the hearing date has been set,” said Kaphale.

In April 2017, the Comesa court dismissed the case after ruling that the cancellation of the MML licence agreement was not in breach of the Comesa Treaty and the court, therefore, had no jurisdiction in the matter.

However, MML appealed against the dismissal of its case, arguing the two judges were ineligible for selection and appointment in the Comesa Court of Justice (CCJ), having reached retirement age in their countries, which was contrary to Article 20(2) of the Comesa Treaty.

But in its succeeding ruling in 2018, the court said on a true construction of Article 20(2) of the Comesa Treaty, the two were eligible for election as judges of CCJ.

“Having come to the foregoing conclusion, we hold that both affected judges qualified, at the time of their election, to be elected to the CCJ on the basis that they were each a jurist of recognised competence,” reads, in part, the CCJ ruling of August 18 2018. 

However, the battle raged on after the determination on the eligibility of the judges, when MML appealed once more, arguing “the whole judgement and proceedings were tainted and affected by procedural and substantive mistakes of law”.

But the court discharged the matter following failure by the applicant to meet some court rules. MML later filed an interlocutory application for leave to restore to the cause list which was granted two months ago.

The company’s spokesperson Jay Naka, in an interview from South Africa on Monday, said they filed for review of restoration after the court failed to hear it.

He said: “The review application went out of time in terms of the court rules that’s why we asked for restoration of the proceedings.”

The resuscitation of the case brings back to life the battle between MML and Malawi Government, where the company is accusing the State of frustrating the course of justice.

MML has cited the arrest in 2005 of its executive director Patrick Tsaperas, when he visited the country, on allegations of forgery, yet he was released without being charged.

The other bone of contention is a ruling in which four judges determined a case which was heard by three judges, in which MML accused Malawi’s judiciary of breaking its own rules.

Macra revoked MML licence in 2005 on grounds that the company had failed to fulfill its obligations under the licence agreement entered between the parties in 2002.

Under the agreement, MML was required to roll out public mobile services in the country for a period of 15 years, from April 2002.

Following the cancellation of the licence, MML took Macra to court, demanding compensation.

MML then decided to take the matter to the Comesa Court of Justice in 2015 still claiming compensation amounting to the equivalent of K98 billion.

But Kaphale said on Wednesday the reference that sought to challenge the Malawi Supreme Court decision at Comesa Court remains dismissed by the CCJ Appellate Division unless “it is restored for able hearing of the dismissal application at appellate level”.

MML is owned by three investors—Finanz Capital Management Private Limited of South Africa, with 55 percent shares; Finanz Holdings Limited of Mauritius, with 35 percent shares and 3X Telecommunications, which has a 10 percent stake of the shareholdings.

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