High Court Judge Allan Muhome has discharged a permission he granted earlier to former Minister of Justice, Henry Dama Duncan Phoya SC to start judicial review proceedings against his suspension by the Malawi Law Society’s (MLS).
Through a September 19, 2023 public notice, MLS suspended Phoya for two years for failing to pay back a K48 million loan to Ian Chinga, who was a client to private practicing lawyer Wester Peter Kosamu.
However, Phoya sought the court’s intervention arguing that the money he got from Changa was a private loan agreement and has got nothing to do with his duties as a legal practitioner.
On September 14 2023, Justice Muhone granted him the nod to start judicial review proceedings but pended his application for an injunction.
In his ruling dated October 4 2023, Muhome discharged the permission saying Phoya’s action against MLS disciplinary committee was unprocedural as it does not have a legal personality of its own.
He said, in future, the correct defendant should read ‘Malawi Law Society’ which is a corporate body, under Section 63 of the Legal Education and Legal Practitioners Act (Lelpa).
Justice Muhome further noted that the fact that Phoya obtained the loan when he was not practicing as a lawyer did not hold water because Section 2 of the Lelpa still defined him as a legal practitioner and would only cease to be one upon his name being removed from the Roll, which was not the case.
Phoya’s lawyer Wellington Kazembe told The Nation that they would appeal to the Supreme Court of Appeal (SCA)
This means that Phoya’s suspension still stands until decided otherwise by the SCA.
