Mobile phone operator Malawi Mobile Limited (MML) has finally filed its appeal at the Comesa Court, challenging the Supreme Court’s decision that reversed a 2002High Court order to award the Sudanese consortium a $66 million (about K11 billion then) compensation after Macra terminated the MML deal.
According to court documents Nation on Sunday has seen, MML is questioning the role that Justice Rezine Mzikamanda played in the delivery of a Supreme Court ruling that saved the Malawi Communications Regulatory Authority (Macra) from paying the Sudanese business mogul billions of taxpayers’ money.
MML lawyers allege in submission to the court that Mzikamanda did not form the panel that heard the matter, but illegally participated in the formulation of judgment.
But government has challenged MML’s argument as false and not supported by Malawian law, saying while Mzikamanda participated in the delivery of the ruling, he did not form part of the team that made the ruling.
The matter was heard by a panel of three judges comprising current Chief Justice Andrew Nyirenda, Justice Edward Twea and Justice Richard Chinangwa.
Reads in part grounds of appeal filed by MML lawyers: “When the Supreme Court sat to deliver or pronounce the judgment, it did so as part of an exercise to discharge its constitutional mandate of determining the matter and, therefore, it was not lawfully open to the Supreme Court to dilute its composition and allow the quorum to dwindle to two Justices of Appeal or permit the quorum to increase to four Justices of Appeal.
“The proceedings for judgment delivery on March 10 2015 cannot and should not be wished away as inconsequential in determining as the 1st Respondent would like this Court to believe.”
The documents say there is no evidence to support the conclusion that Mzikamanda took part in the deliberations leading to the judgment in issue.
Previously, Attorney General Kalekeni Kaphale told Nation on Sunday that the State had raised objections on the jurisdiction of the Comesa Court.
Both Solicitor General Janet Banda and Ted Roka, a private practice lawyer at Kalekeni Kaphale law firm which is representing Macra in the case, confirmed in separate interviews that the State had submitted additional submissions, including counterarguments on the Mzikamanda matter.
MML once planned to become Malawi’s third mobile phone service provider before its licence was revoked by Macra, leading to a legal battle that seemed to have ended in the Malawi Supreme Court decision that favoured Macra before the company dragged Malawi government to the regional court.