By Joseph Mwale
The High Court in Blantyre has set aside payment of K131 billion in damages which government was supposed to pay Ramchand Hashmatrail. Hashmatrail claimed in court that the Malawi Government wrongly forfeited his land in 1969 under the Forfeiture Act and subsequently offered to Press Properties Limited.
In the Civil Case number 2137 of 2009, Hashmatrail sued Press Properties Ltd as first defendant and the Attorney General (AG) as second defendant.
However, High Court Judge Maclean Kamwambe ruled on July 25 2011 that Press Properties must have been a bonafide purchaser for value without notice as such the judgement was against the Government of Malawi.
After the judgement on liability by Justice Kamwambe, on 9 March 2020, High Court assistant registrar Wyson Chamdimba Nkhata conducted assessment of damages, awarding the claimant K131 699 964 971.48.
But current AG, Thabo Chakaka Nyirenda, last month filed an application for stay of execution of that judgment pending hearing of the application to set aside the default judgement and the ruling on assessment of compensation, which the High Court in Blantyre has granted.
Reads the order dated February 25: “Upon hearing counsel for the applicant and upon reading the sworn statement filed herein; it is hereby ordered and directed that (1) the execution and/ or enforcement of the ruling of the court dated 9th March 2020 be stayed pending hearing of an application to set aside an Assessment Order.”
But in his sworn affidavit, Nyirenda concedes that the defence failed to attend assessment of damages, but that it was not deliberate, as his chambers is mostly overwhelmed by the huge backlog of cases, and that award of such an amount is too extravagant.
He argues: “On the flip of the coin, the assessment order once executed will prejudice the defendant as the huge amount awarded to the claimant would cripple and paralyse the government’s economy and operations, something that could be avoided if the decision is made on the merits of the case.
“The award of K131 699 964 971.48 is unprecedented, outrageously hugely excessive, extravagant and exorbitant sum, and lacks legal basis. It would be setting a most dangerous precedent, for future awards of damages in this branch of the law if enforced.”
According to court documents, the claimant contends that the order of forfeiture was in violation of his constitutional rights, as such, he claimed immediate possession of the premises, or in the alternative, damages for loss of use of the properties and interest on the damages at First Merchant Bank Overdraft Rate from 1969.
An assessment of the damages by Nkhata shows that the claimant was offered K548 442 000 for loss of property, K205 626 137.26 for forgone rentals for period June 1 1969 to December 13 2018.
Hashmatrail was also awarded K62 763 512 584.5 as interest lost or suffered from June 1 1969 to December 31 2018 and a further K63 517 580 721.81 as total loss.
The K131 billion land case is one of the top five cases the AG is fighting as part of the ongoing battle to reverse the over K2 trillion in claims against the government.
Last week, the court also stopped a K5.8 billion payout to Shiraz Ferreira of SF International. The complainant alleges that he supplied military hardware to Malawi Defence Force (MDF) between 2012 and 2017.
The AG last month also blocked payment of K27 billion which government was supposed to pay to Savenda Management Services after a botched ambulance procurement deal.
This story report has been adapted from The Nation
