Africa Investment Group LTD v Attorney General ( Ministry of Agriculture & Ministry of Finance) , Famers Fertilizer Revolving Fund of Malawi & Malawi Fertilizer Company LTD (51 of 2024) [2024] MWHC 57 (22 July 2024)

= ————___ THE HiGrt COURT COMMERCIAL DIVISION CASH OFFICE 13 INL 2024 . anny : | —> (3 JUL . COMMER GISTRY oe ) ie. DIVISITANTY RE REPUBLIC OF MALAWI - PRE 19 Su 2024 INWHE HIGH COURT OF MALAWI ypLicATe COMMERCIAL DIVISION D . PAID. BLANTYRE REGISTRY COMMERCIAL CAUSE NUMBER 31 OF 2024 (Before Honourable Justice Msungama) Between: AFRICA INVESTMENT GROUP LIMITED CLAIMANT -and- POE REGIS TERED TRUSTEES OF SMALLHOLDER a H FARMERS FERTILIZER REVOLVING FUND OF MALAWI 1S? DEFENDANT -and- ATTORNEY GENERAL [MINISTRY OF AGRICULTURE AND MINISTRY OF FINANCE} 2°) DEFENDANT -and- MALAWI FERTILIZER COMPANY LIMITED THIRD PARTY AGREED JUDGEMENT THE PARTIES having agreed on terms of settlement and agrecing to a judgment being ‘given as here below: . 1. WITH THE AGREEMENT OF THE PARTIES, it is hereby ADJUDGED that in full and final settlement of all the Claimant's claims against the Defendants, the Defendants do within =~ ninety [90} days from the date hereof pay the Claimant: a) The sum of USD 28,990,537.00, principal debt as of 25 January 2024: b) The sum of USD 2,174,335.00, interest on (1) above at the agreed rate of 6% per annum from 1 May 2023 to 5 July 2024; and c) USD 2,175,716.68 (in the Kwacha equivalent), costs of the action including statutory collection charees to be paid to leeal practitioners for the Claimant. | SS ae 2. AND IT IS FURTHER ADJUDGED that in full and final settlement of all the Defendants’ claims against the Third Party, the Third Party do, by way of refund, forthwith pay into a New Account (hereafter described): (i) (ii) (iii) K17,124,643,194.06, money had and received by the Third Party under the Modified Forward Exchange Contract Facility executed between the Third Party and NBS Bank Ple in respect of which there is a total failure of consideration; K1,138,123,709.09, interest on (i) above at the rate of 8% per annum accruing from 15 November 2023 up to 5 July 2024; and K638,435,153.26, statutory collection charges on the refund including VAT payable to legal practitioners for the 1st Defendant. (together (i) and (ii) are referred to as “Funds in the Escrow Account”) 3. (a) (b) (c) (d) (¢) AND IT IS FURTHER DIRECTED: A bank account be opened at CDH Investment’ Bank, Blantyre Banking Centre by legal practitioners for the 18' Defendant on the one part of the one part and legal practitioners for the Claimant and the Third Party of the other part under their joint control (the “New Account”), ; : The most senior partners of the respective legal practices shall be joint signatories of the new account. The Funds in the Escrow Account shall not be released to the Defendants but shall be paid into the New Account as aforesaid. No payments shall be made out of the New Account to either of the Defendants until (1) the expiry of ninety (90) days from the date hereof, and (ii) the Claimant has confirmed in writing to its legal practitioners that the judgment debt due to Mute Claimant (as outlined in 1 and 2 above) has been fully paid. Upon receipt of the communication from the Claimant in terms of paragraph (d) above the New Account shall be liquidated as follows: (i) The Malawi Kwacha equivalent of USD2,175,716.68 shall be paid out to legal practitioners for the Claimant and the Third Party being statutory collection costs awarded by the judgment in favour of the Claimant and eae the Defendants as outlined in 3 above; (ii) The sum of K638,435,153.26 shall be paid to legal practitioners for the 1*' Defendant. being collection costs awarded by the judgment in favour of the 1*' Defendant and against the Third Party as outlined in (iii) above: and (iil) The balance remaining after (i) and (ii) shall be released to the Defendants through the 1§' Defendant’s legal practitioners. SPECIAL DIRECTION TO THE 2*” DEFENDANT: 1. The 2" Defendant IS HEREBY DIRECTED to ensure, through both the Ministry of Agriculture and the Ministry of Finance, that the 18' Defendant is funded to the extent of the total liability under the judgment herein for the 1*' Defendant to fully settle the judgment debt due to the Claimant within the ninety (90) days from the date of this Judgment. 2. In the event of failure on the part of the Defendants to satisfy the Judgement debt due to the Claimant within ninety (90) days, the funds in the New Account shall remain in the New Account until the judgment in favour of the Claimant is satisfied. Dated the a) day of July 2024. JEDGE/RECASTRAR Indorsement by the Parties We agree to a Judgment being entered upon the terms set out aboy, WAPONA KITA ARTHUR ALFCK PASWELL MSOW KITA & CO WILSON AND MORGAN REPRESENTING LEGAL PRACTITIONERS LEGAL PRACTITIONERS FOR THEM! FOR THE CLAIMANT AND THIRD-PARTY DEFENDANT