High Court Judge Ken Manda has found wanting, the approach taken by the Attorney General over an application for a stay order in relation to the Salima- Lilongwe water project injunction.
On 10th May ,2023, Justice Manda granted Forum for National Development –FND an injunction restraining two commercial banks namely NBS and National Bank of Malawi plc from lending government K105 Billion to Khato Civils on behalf of government for the water project.
When the case came before the court on 17th May, for a hearing on whether or not the case is a commercial matter, FND applied for an adjournment on the basis that the organisation did not have ample time to respond to issues raised by the Attorney General , Khatho Civils and other defendants because they filed their responses late.
In his directions, Justice Manda scheduled the matter for 3oth May, 2023 and directed that the injunction will subsists till the 3oth day of May, 2023.
Following this development , the Attorney General made an oral application to stay the direction. But Justice Manda wondered what the application was all about.
‘’ We were confounded as to against what ruling was the Attorney General was applying to stay. Was he making an application for stay of adjournment? Was he making an application for stay against an interlocutory order made in chambers? We wondered,’’ said Manda in his ruling.
However, the court ordered the AG to make his application for a stay order formally , when all parties were present and contrary to the direction of the court, the AG made an exparte application for stay . But the court still directed that the AG should make the application formally and that it should come inter parties.
Instead of making the application formally, the AG made an application for stay in the Supreme Court of Appeal which was granted , before the same application was finalised in the high court.
However , Judge Manda has wondered what the stay order granted in the Supreme Court of Appeal is all about , when the high court never made any ruling on an application for stay by the AG.
According to Judge Manda, the stay order in the Supreme Court is stopping the injunction obtained by FND but surprisingly , the very same Attorney General filed numerous documents and preliminary objections arguing that the issues were to be determined on 30th May by the High Court and the court wonders as to how to proceed with the premilimanry objects when there is a stay order in the upper court.
‘’ To be frank , I did find the approach adopted by the Attorney General to be wanting in many aspects. He wants to have his cake and eat it too. This court will not be bulldozed into aligning itself with this line of approach. To say the least, what the Attorney General is doing is shambolic and goes against clear directions of this court. I would find it worrying if an Attorney General thinks that court directions can just be ignored just like that.’’
Meanwhile, Judge Manda has said the case will remain adjourned to a date to fixed for hearing of all substantive matters and preliminary objections to a date to be fixed after the ‘’premature’’ issues taken to the Supreme Court are dealt with there.
