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Supreme Court and High Court Assistant Registrar Michael Tembo has cleared Electoral Commission Chairman James Kalaile of allegations of swindling a Blantyre businessman about K3.5 million (US$39,000).
Tembo said the debt claimed was incurred by the judge’s company before he became a partner.
His ruling on Thursday followed an application by Kalaile’s lawyer Kalekeni Kaphale on April 29 that businessman Aubrey Makata’s application was “frivolous, vexatious, unwarranted and an abuse of the court process” and that the action is time barred since it happened in 1996.
Tembo said the words “frivolous” or “vexatious” are used in reference to cases that are obviously unsustainable like Makata’s action which he described as “an abuse of the court process” and eventually dismissed it with costs to Kalaile, who is also a judge of the Supreme Court of Appeal.
“This court is of the view that the plaintiff’s action herein is unsustainable since the debt claimed was incurred by Bayley Enterprises whilst the defendant [Kalaile] was not yet a partner therein as demonstrated,” he said, adding that the agreement of March 27, 1997 between Makata’s City Mechanical Works and Bayley Enterprises does not indicate Kalaile’s acknowledgement of the debt.
Makata said in his affidavit that Kalaile’s copartner, Maurice Gainer, verbally advised him on the date of signing the said agreement that he had sent the scrap metal which he delivered to Avora Intertrade Limited of Switzerland and that the foreign company promised to send the money, part of which would be paid to Makata for the goods delivered.
Makata accused Kalaile of misappropriating money due to him under the contract herein and that information to that effect was being sought from National Bank of Malawi.
But Tembo said the court joined Kaphale in wondering why, six years after supplying the goods, it took Makata up to the eve of the hearing of this summons for him to request a subpoena directed to National Bank of Malawi to produce documents to prove his allegations.
“The view of the defence is one that this court cannot disagree with and the quest for information from National Bank of Malawi by the plaintiff is at best a mere smoke screen,” he said.
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