Court dismisses case in favour of ESCOM, AG

The Senior Resident Magistrate's Court, sitting at Mulanje, has dismissed a case in favour of Electricity Supply Corporation of Malawi (ESCOM) and Attorney General (AG).

Mary Mphasa and 325 other people dragged ESCOM and the AG to the court in this civil matter to seek damages for trespass to land, interference with peaceful enjoyment and use of land, inconvenience, loss of land, special damages and costs of action in relation to installation of poles for electricity.

But ESCOM, appearing as 1st defendant in the case and represented by lawyer Tamandani Kadyampakeni, raised preliminary objections to the action by the plaintiffs.

Kadyampakeni argued that the purported proceedings were incompetent and invalid because there was no originating process/default summons filed by the complainants.

"The plaintiffs are abusing the court process having filed a claim before the High Court (Principle Registry) in Mary Mphasa and others V ESCOM Limited and Attorney General Civil Cause number 434 of 2020.

"The present proceedings have been filed prematurely since the High Court has not made an order on liability of costs, assessment of costs is yet to be held and the said costs are to be paid by the plaintiffs," he argued.

Kadyampakeni further argued that assuming that the proceeding rose from purported action commenced by the complainants before First Grade Magistrate Court at Phalombe, the said Phalombe proceedings were and remained nullity because the default summons were issued by a magistrate without jurisdiction.

Making her ruling, the Senior Resident Magistrate Gloria Mwatiwamba observed that this being a matter that rose from installation of electricity, Section 44 (2) of the Electricity Act confers jurisdiction on Resident Magistrates to preside over disputes on compensation resulting from execution of electricity exercises.

She said it was clear the Phalombe First Magistrate did not have jurisdiction to issue the default summons. 

She said although the Phalombe Magistrate transferred the proceedings to her court, the transfer did not cure the irregularity that the proceedings were commenced before a wrong forum.

"With the foregoing, the 1st defendant's preliminary objections are allowed. Consequently, this court dismisses the plaintiffs' case. Each party should bear its own costs. It is so ordered," the magistrate ruled.

The AG' Chamber was represented by lawyers Ted Ngaunje and Nafisa Sharifa.



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