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Judges roast fellow judge

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Rezine Mzikamanda

In a scathing judgement, a panel of seven Justices of Appeal slammed a one-sentence judgment passed by the High Court’s Commercial Division.

In the case, Standard Bank Limited was seeking a reversal of a decision made by Judge Michael Mtambo sitting in the Commercial Court at Blantyre.

According to the court document, Mtambo delivered a one-sentence summary judgement in favour of Tourism Investment Limited and Euro Industries Limited.

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But in their appeal judgment, Justices of Appeal Rizine Mzikamanda, Lovemore Chikopa, Frank Kapanda, Healy Potani, Ivy Kamanga and Charles Mkandawire agree with Justice John Katsala that the judgement was not supposed to come out of any court of law, more so the High Court.

They observe: “The judge just wrote one sentence judgment to wit ‘Summary judgment or judgment on admission is entered as prayed.”

And the Supreme Court of Appeal judges were not pleased.

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“We must say that this falls far short of what is required and expected of a judgment from a court of law especially the High Court of Malawi.

“The most we can say is that such casualness and shoddiness should never find a place in the courts,” reads the judgment dated November 30, 2021, adding:

“Needless to say judges (all judicial officers) need to be methodical the way they do business. As basic rule, judgments and orders must contain reasons/grounds for the decisions they carry.

“That is the only way the judges can ensure that they remain transparent and accountable in their decisions and/or work,” it reads.

“A decision which has no grounds or reason supporting it hangs in the air shrouded in mystery,” they said, arguing that such a judgment deprives parties, the public and the appellate court an opportunity to appreciate why and how the judge arrived at the decision made.

“It is a serious affront to judicial transparency and accountability. It denotes arbitrariness.

“It is a recipe for unwanted perception that bribery, corruption, underhand dealings, and other extraneous considerations are the drivers of the wheels of justice which inevitably erodes public confidence on the justice system.

“We do not want that in our jurisdiction. We urge all judges to bear this on their minds when discharging their duties,” warned the judges.

In the case in question, Standard Bank Limited had appealed against a summary judgment awarding Tourism Investment Limited and Euro Industries Limited K145 million for loss of profits and compound interest of 8 percent above commercial bank lending rate for delaying in handing over property it sold.

The Supreme Court of Appeal justices however noted that the judge erred in passing a summary judgment as if the appellant, Standard Bank Limited, did not provide substantial defence warranting trial.

They noted that Standard Bank had stated that there was no delay and that in case there was indeed any delay, then it was because of a court order which a third party, previous owners of the property, Chloride Batteries Malawi Limited had obtained, among other defences.

The judges concluded:

“…We find that the judge in the court below did not apply his mind to the relevant provisions of the rules and principles applicable on an application for a summary judgement and judgement on admission.

“This lapse is also manifested in the nature of judgement he rendered. A serious error of law was committed. For these reasons this appeal succeeds in its entirety,” they pronounced.

The observations which the justices made in their judgement resonate with the concerns carried in the Malwi Judiciary Strategic Plan (2019- 2024). The plan highlights a number of factors “why the Judiciary is seemingly not enjoying the esteem it would desire.”

Among those factors it highlights include corruption and perception of corruption and lack of accountability.

“The Judicial Service Commission, which among other things, is expected to hold judicial officers and members of staff accountable is less effective as it lacks necessary legislation and guidelines for its operations,” it says.

It further says some stakeholders perceive the Judiciary to be corrupt.

“The efficacy of the Judiciary largely depends on the credibility that it commands among the citizenry and a perception that it is corrupt can be seriously damaging to its legitimacy. Corrupt practices have serious implications on the delivery of judicial services,” says the plan.

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