REPUBLIC OF MALAWI

IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY
CIVIL DIVISION
CIVIL CAUSE NUMBER 270 OF 2018
(Before Honourable Justice Muhome)

BETWEEN:

LESTON TED MULLI t/a ZAO MARKETING

AGENCIES AND 5 OTHERS CLAIMANTS

AND

ATTORNEY GENERAL DEFENDANT

CORAM: HON. JUSTICE ALLAN HANS MUHOME

Mr Lusungu Gondwe, of Counsel for the Claimants

Mr John Kalampa, of Counsel for the Claimants
Mr Gracian Luzu, of Counsel for the Claimants
Mr Thabo Chakaka Nyirenda, of Counsel for the Defendant
Ms Fareeda Chida, Court Clerk

Page 1 of 4
 RULING

1. The Claimants commenced this action claiming K270,448,222,520.00 damages for public
misfeasance by the former Attorney General for directing that no Government Department
or Organisation should conduct any business with Mr Leston Mulli and his related
Companies and businesses (the Claimants) by a letter dated 5th September 2012. The
Defendant denies all the claims.

2. The matter already underwent a scheduling conference. Meanwhile, the Defendant has
taken out this application to dispose of the proceeding on points of law and/or to strike it
out. The application is made pursuant to Order 10 r. 1 and 3 as read with Order 16 r. 6(1)
and Order 2 r. 3 and 4 of the High Court (Civil Procedure) Rules (CPR) which Orders
allow a party to apply during a proceeding for an interlocutory Order of the Court; permits
preliminary hearings; and deals with irregularity and non-compliance.

3. The points of law are as follows: -

a) That the present proceeding is null and void having been wrongly commenced;
b) That the Claimants’ action is res judicata;
c) That this Court has no jurisdiction to hear the present matter;
d) That the Claimants’ conduct amounted to collusive bidding and tendering; and
e) That the Claimants’ pleadings do not disclose a reasonable cause of action.

4. The application is supported and opposed by respective Sworn Statements and skeleton
arguments, including replies. The Court also heard oral arguments from both parties.

5. In summary, the Attorney General argued that the claim herein is exaggerated as it is in
excess of a sum of K270 billion. He stated that this claim is based on the same matters that
were dismissed by Mtambo J. under Mulli Brothers Ltd v Attorney General (Ministry of
Agriculture and Food Security) Commercial Case Number 114 of 2013 and therefore it
is res judicata. He alleged that the Claimants are related parties and were involved in
collusive bidding and tendering. That they are therefore bound by the foregoing decision
of Mtambo J. That every litigant has a duty to bring their case at once and not in piece
meal per Mike’s Trading Group Ltd v NBS Bank Ltd Commercial Cause No. 78 of 2014.

Page 2 of 4
6. He further submitted that the Claimants did not follow the procedures provided for under
the Public Procurement and Disposal of Assets Act, 2017 (PPDA), to appeal the decision.
He relied on Autocraft Ltd v City of Blantyre [1993] 16(1) MLR 7 where the High Court
held that where a statute has provided a complain mechanism, the High Court has no
jurisdiction until the same is exhausted. He stated that there is no reasonable cause of action
as there is no evidence that the said letter interfered with the Claimants contracts and that
the subsequent withdrawal of the letter did not constitute an admission, on the part of the
Defendant.

7. In turn, Counsel for the Claimants submitted that the law allows a party to commence a
private action seeking compensation without necessarily resorting to Judicial Review
proceedings. This is clear from the Supreme Court of Appeal Judgment in MACRA v Joy
Radio Ltd [2012] MLR 256. In relation to the Mtambo J. Judgment, Counsel submitted
that the same is not binding on this Court and the Judicial Review pronouncements were
obiter. In addition, that the matter was dismissed on two technicalities: first that the
Claimant therein did not serve the notice of intended suit against the Government; and
secondly, that the PPDA appeal processes which were applicable in that case are
inapplicable on the facts of the present matter. In any event, the Claimants herein are
seeking compensation which is not part of the remedies under the PPDA per the
determination of the PPDA Review Committee in the Matter of Procurement Reference
Number SFFRM 2020/2021/01 Web Commercials Limited v Small Holder Farmers
Fertilizer Revolving Fund Malawi. Furthermore, the allegation of collusive bidding was
not supported by any evidence and was a factual matter to be settled at trial. It was
submitted that a public misfeasance is a tort that constitutes a proper cause of action
according to Three Rivers District Council and Other v Bank of England [2000] 3 All
ER 1. That the matter is not res judicata as the parties and issues are different.

8. This Court has examined the evidence and arguments before it and considers that the fact
that the claim herein is in excess of a sum of K270 billion is not a good ground for striking
out this proceeding. This is so because that sum is simply an estimate and in the event that
the Claimants succeed, the damages shall have to be assessed accordingly. We also hold
that the matters before Mtambo J. (above), even if arising from the same letter, were
involving different parties and premised on a single transaction under the PPDA therefore
the claims herein cannot be res judicata. The same reasoning applies to Mulli Brothers

Page 3 of 4
 Ltd t/a Zao Markerting Agencies v Attorney General Civil Cause Number 136 of 2015,
which is also premised on different claims albeit emanating from the same letter. We are
firm in this decision by the fact that the Mtambo J. decision was correctly dismissed on
technicality as argued by the Claimants. It is the view of this Court that the Claimants must
be availed their constitutional right to an effective remedy by a Court of law as provided
for under section 41 of the Republican Constitution of Malawi, 1994.

9. This Court has not received any evidence of collusive bidding and tendering from the
Defendant. Neither has the Defendant presented evidence to prove that the Claimants are
related parties as the veil of incorporation has not been lifted. It is imperative for this Court
to state that the veil of incorporation cannot be lifted lightly as suggested by the Defendant:
see Prest v Petrodel Resources Limited and others [2013] UKSC 34. This Court further
agrees with the Claimants that their claim is not based on the PPDA and so they were not
bound to exhaust the appeal processes provided for under that Act. Consequently,
considering the overring objectives of the High Court (Civil Procedure) Rules under Order
1 r. 5, this Court considers that it is not irregular for the Claimants to proceed with a private
action herein instead of a Judicial Review proceeding much as compensation may also be
sought in Judicial Review proceedings.

10. The application is therefore dismissed in its entirety. Costs are in the cause.

Made in Chambers this 2nd March, 2024.

Allan Hans Muhome

JUDGE

Page 4 of 4