Court orders Macra to pay $66 million
Justice Frank Kapanda of Blantyre High Court’s Commercial Division made the ruling on April 20 2012. Macra did not defend the case.
Although the case dates back to 2005, the actual hearing took place at the Commercial Court in Blantyre on October 18 and 19, 2011.
Delivering the ruling, Justice Kapanda said he was surprised why Macra decided not to call any witnesses to defend the case in which it was sued together with the Attorney General.
Kapanda said Macra did not defend the case despite filing with the court and serving MML with four witness statements of Christopher Chibwana, Evans Namanja, Sheikh Dinala Chabulika and Rose Phanga.
“I have it on good authority that failure to call material witness raises an assumption that such failure shows that the evidence would have been adverse to the party who would have called the witness.
“It is my judgement that the four witnesses were material witnesses. I, therefore, find and conclude that failure to call these important witnesses shows that their evidence would have been adverse to the defendants,†observed Kapanda.
MML paraded four witnesses who included former Macra Board chairperson Abdul Pillane, prominent private lawyer Khuze Kapeta, Patroklos Tsaperas and Michele Loiuse Scanlon.
The judge also noted that even the office of the Attorney General, which was the second defendant in the case, did not file any witness statement with the court nor serve the plaintiff with the same and accordingly did not call any witness to testify during trial.
“I must observe that what is noteworthy is that the defendants never called any other witnesses even in the case of a claim as colossal as this one. The failure to call any other witness does not bode very well on the part of the defendants,†he said.
Eventually, Kapanda went ahead to rule in favour of MML and noted that the defendants’ lawyer failed to “breakdown and discredit†the evidence of all four witnesses who testified on behalf of the mobile phone network provider.
MML lawyers George Makiyi and David Kanyenda asked the court to compensate their client with money lost in profits for a period of 12 years until 2017 when their licence would have expired.
Macra revoked the mobile phone company’s in 2005, arguing that they had failed to roll-out its network on time, but MML contended in court that the revocation was breach of contract as they were supposed to roll-out 12 months after the launch of the company.
The company which did not conduct the launch sued the regulatory body and the Attorney General for breach of contract and claimed US$ 135 million but the court ruled that the amount in damages would be calculated at one half.
“I find and conclude that the plaintiff (MML) is entitled to a loss of profits not as pleaded and assessed by the expert but to the sum of $66 850 000. I so order this sum as the quantum of loss of profits payable to the claimant,†ordered Kapanda.
The judge also condemned Macra to pay the costs.
Attorney General Mackson Mbendera was not available for comment but Macra spokesperson Zadziko Mankhambo said he was not in the office to comment on the ruling. He asked for more time.
“I will get back to you for a comment,†he said.
