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Judges punch holes in Mulli’s application

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A panel of three judges of the Supreme Court of Appeal yesterday threatened to throw out an application filed in court through Tembenu, Masumbu & Company law firm on behalf of Celcom Limited for not following the Civil Procedure Rules (CPR).

Celcom, a mobile telephone operator which is a subsidiary company of Mulli Brothers Limited (MBL) Holdings, dragged the Ministry of Lands, Housing and Urban Development and American Palace to the Supreme Court of Appeal in a case in which the High Court Commercial Division ruled in favour of the latter.

Government, through the ministry in 2006 allocated a piece of land to American Palace Limited and later in 2010 allegedly allocated the same land to Celcom.

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When the case commenced Wednesday, lawyer representing the appellant, Mather Ngoma, filed an application before Justices Edward Twea, Frank Kapanda and Maxon Mbendera to give further evidence on the matter before the substantive issues were heard.

She said before the court heard the appeal, the appellant came across information that indicated that the Ministry of Lands had withdrawn the plot in question from American Palace.

“That information was not available in the lower court. And we are of the view that if such information was made available to the appellant court, the court should perhaps [have reached a different decision],” she said.

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Part of the evidence Ngoma presented in court was correspondence between the Ministry of Lands and American Palace dated June 2009 that indicates that the land had been withdrawn from the latter.

She argued that the appellant court is mandated to hear and determine the application through Order 111 of the Supreme Court of Appeal.

However, all judges were not comfortable with the procedure Ngoma took, saying the application could have been filed in court through Section 22 of CPR.

It all started when Twea told Ngoma that the evidence was as good as hearsay.

The judge further questioned how the letter, which was authored in June 2009, never found its way to the lower court.

“These summons have not been taken by the Attorney General (AG), but they have been taken into court by you counsel Ngoma,” Twea said.

Ngoma then responded by asking the court to adjourn the case until the AG or his representative make themselves available in court to explain why that disclosure was not used.

Later, Mbendera chipped in: “Assuming that the Attorney General was here and moved this court, would they succeed?” he said while shaking his head in disbelief.

He added: “You must argue your case independently…The principle question is that the application cannot be accepted. As a matter of fact, are you competent to push this matter? Why did you fail to get that letter years back? I am not talking to you directly; I am talking to your [client].”

Mbendera then told Ngoma that the court was not a shopping office and further asked his fellow judges why they should continue hearing the matter.

At this point, Kapanda said he supported Mbendera’s view.

Ngoma then withdrew her application, saying she would file it through Section 22 of the CPR.

In an interview later, Ngoma said under that procedure, the onus will be on the Ministry of Lands and the American Palace to explain why they failed to produce that evidence in the lower court.

When asked how they obtained that evidence, Ngoma said: “It was the correspondence from the Attorney General that has come across that information which they did not have at the time of the hearing in the lower court.”

Lawyer representing American Palace, Wapona Kita, said he could not respond to the arguments because the application had been withdrawn.

The court gave Ngoma three weeks to file the application.

The case has since been adjourned to a later date next year.

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