ZAMBIAN judge Lombe Chibesakunda and her bench have started hearing a case involving the government of Malawi and a telecommunication company, Malawi Mobile Limited (MML), at the COMESA Court of Justice (CCJ) in Khartoum, Sudan.
According to a statement, the matter before the Appellate Division of the CCJ is an appeal filed by the government of Malawi challenging a ruling made in 2015 by the Court of First Instance stating that the regional court has jurisdiction to hear the case.
In 2005, MML sued the Malawian government and its agency the Malawi Communication Regulatory Authority (MACRA) for revoking its licence on the grounds that the company had failed to fulfil its obligations under an agreement entered between the parties in 2002.
Under the said agreement, the MML was required to roll out public mobile radio telephone services in the country for a period of 15 years.
The case was heard in the Commercial division of the High Court of Malawi. In its judgment, the High Court ruled in favour of MML in respect of loss of profit amounting to K653.7 million (US$66,850.000) plus costs of the suit. However, the government and MACRA successfully appealed in the Malawi Supreme Court of Appeal which set aside the judgment of the High Court. This led the MML to seek redress in the CCJ.
Under Article 26 of the COMESA Treaty, the CCJ has jurisdiction to hear a reference from a legal or natural person resident in a Member State concerning the legality of any act, regulation, directive or decision of the COMESA Council or of a Member State on the grounds of unlawfulness or infringement of Treaty provisions.
Such reference can only be made where local remedies in the national courts or tribunals have been exhausted.
After the CCJ admitted the Reference of the case, the government filed an application seeking the dismissal of the said Reference on the grounds that the regional court does not have jurisdiction to entertain it.
The government maintained that the alleged act, the subject of the Reference, did not fall within Article 26 of the COMESA Treaty.
The Appellate Bench comprises Lady Justice Chibesakunda (Zambia) who is also the Judge President, Justice Abdalla Elamin Elbashir (Sudan), Justice Michael Mtambo (Malawi), Justice David Chan Kan Cheong (Mauritius) and Justice Wael Rady (Egypt).