Hera and Others v Malawi Savings Bank Limited (Ruling) (Civil Cause No. 516 of 2015) [2016] MWHC 584 (26 August 2016);

Share

 

 

IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL CAUSE NO. 516 OF 2015

 

BETWEEN

MILLION HERA ........................................................1ST PLAINTIFF

JAMES SALAKA .......................................................2ND PLAINTIFF

GEORGE SIBALE .....................................................3RD PLAINTIFF

KAYISI SADALA ......................................................4TH PLAINTIFF

IAN BONONGWE .....................................................5TH PLAINTIFF

AND

MALAWI SAVINGS BANK LIMITED ...................................... DEFENDANT

 

Coram: Hon. Justice R. Mbvundula

              Nyirenda, Counsel for the 1st Plaintiff

              Msuku, Counsel for the 2nd Plaintiff

              Mumba, Counsel for the 3rd Plaintiff

              Mpaka, Counsel for the 4th Defendant (absent)

              Jere, Counsel for the 5th Plaintiff

              Mhango, Counsel for the Defendant

              Mwanyongo, Official Interpreter

 

RULING

Background facts

All the plaintiffs were at all material times senior employees of the Malawi Savings Bank. The matter was commenced by way of originating summons by the 1st plaintiff. The rest of the plaintiffs were joined subsequently at different times. The defendant was formerly wholly owned by the Malawi Government which subsequently sold off its interest therein resulting in FDH Holdings becoming its majority shareholder. Following this, instructions were issued, ultimately resulting in the plaintiffs being suspended from their positions on alleged disciplinary grounds. In essence the plaintiffs are challenging the manner in which the disciplinary processes were instituted and being handled. It is specifically alleged that the disciplinary processes do not accord with the conditions of service applicable to the plaintiffs and that they are merely a ploy by the new majority shareholder to eliminate the plaintiffs from the defendant institution. The order of injunction, which was granted by Justice Kamwambe, restrains the defendant "from conducting any disciplinary hearing or imposing any disciplinary action" as against the plaintiffs until the determination of matter or a further order of the court. The matter was set down to hear the plaintiffs ' application to continue the interlocutory injunction.

Preliminary issues

Two preliminary issues arose when the matter was called for hearing being

1)  whether leave of the court should be granted to cross examine a deponent, namely, Mr Teddie Chanza, who deposed on behalf of the defendant, following an application in that regard by the 3rct plaintiff, and

2)   whether or not the present matter should not be transferred to the Industrial Relations Court on the ground that the main issues it raises pertain principally to employment relations between the plaintiffs on the one hand and the defendant on the other. This issue was raised in the order Kamwambe J made when he granted the interlocutory injunction.

Preliminary Issue 1: Whether or not Mr Chanza should be cross examined on his depositions

a)   Plaintiffs' Arguments

The grounds advanced in support of the application are that Mr Chanza's affidavit leaves many gaps in terms of the facts, which facts would help the court in arriving at a just decision. It was alleged that Mr Chanza seemed to fear that certain facts would be known. Therefore in the interest of justice he must be required to make known those facts. It was also submitted that ultimately what is aimed at is justice and no prejudice would be occasioned upon the defendant by the cross­ examination of Mr Chanza but that, on the other hand, prejudice would result from the inadequacy of information. Further on, it was said that if during cross­ examination the defendant would find any question objectionable, they would be free to raise objection, therefore there should be no cause for worry. Finally, it was submitted that apart from the fact that the affidavit leaves a lot of gaps, it does not disclose all the sources of Mr Chanza's information, thus one cannot be certain whether he is deposing to matters of his own personal knowledge or otherwise.

a) Defence Arguments

For the defence the point was made that the discretion to allow cross-examination in interlocutory proceedings is very rare. Counsel went on to point out that in fact only one such instance is recorded under Order 38 rule 2 of the Rules of the Supreme Court, which regulates the procedure in such cases. It was defence counsel's view that the grant of leave in the present case would lead to consideration of the merits of the substantive case at this interlocutory stage, thus the deponent might face questions which the plaintiffs are entitled to ask only at the hearing.

Determination

I observe first, that the gaps, or facts, allegedly concealed in the affidavit ,,,f Mr Chanza, were not singled out be it in their entirety or by way of example only. As such I find the allegation unsubstantiated.

Secondly, as regards that the affidavit does not disclose all the sources of Mr Chanza's information, and therefore that one cannot ascertain whether he is deposing to matters of his own personal knowledge or otherwise, I am guided by the decision in Gwaza v Council of the University of Malawi [1996] MLR 204 where it was held that the fact that the plaintiff s affidavit contained facts not being facts which the deponents were able of their own knowledge to prove left the affidavit evidence in them "fatally dented". In my understanding, to the extent that an affidavit for use in interlocutory proceedings contains facts which the deponent cannot of their own knowledge prove, and the sources thereof are not disclosed, such facts should be disregarded by the court. In my view, therefore, nothing would be gained from cross examining a witness on inadmissible material.

On these two grounds the application to cross-examine Mr Chanza is therefore fails.

Preliminary issue 2: The right forum for this case

Parties ' respective positions

All the plaintiffs' counsel who addressed the court on the issue (i.e. Messrs Nyirenda, Msuku and Mumba) oppose the transfer. (Mr Jere for the 5th plaintiff, though present, did not address the court on the matter. Mr Mpaka for the 4th plaintiff was absent). Counsel for the defendant, Mr Mhango, supports transfer.

Plaintiffs ' cumulative arguments

The plaintiffs' arguments were:

Firstly, that whilst this court and the IRC have concurrent original jurisdiction to preside over labour matters, the IRC has no jurisdiction to grant injunctions, which is one of the remedies sought in this matter. The case of Kankhwangwa and others v Liquidator of Import and Export Malawi Ltd [2008] MLLR 219 (HC) was relied upon for this position. It was further submitted that the jurisdiction of the IRC is well spelt out in both the Constitution and the Labour Relations Act that the IRC has jurisdiction to determine disputes brought to it under the Labour Relations Act or any other written law, and that since equity is not written law, the IRC has no jurisdiction to grant injunctive relief. The case of Mary Mbwana v Blantyre Sports Club Civil Cause No. 1430 of 2009 was also cited where the plaintiff was allowed to prosecute the matter in the High Court because one of the reliefs sought was a permanent injunction, as the same was considered to be outside the jurisdiction of the IRC. It was therefore submitted for the plaintiffs that since in the present case one of the reliefs sought is nullification of the disciplinary process, which is largely a restraining order, jurisdiction over which the IRC lacks, this matter ought to proceed in this court. Counsel for the plaintiffs criticised the decision in Rev MacDonald Sembereka (CANON) v Network for Religious Leaders Living With HIV/AIDS Ltd Civil Cause No. 19 of 2016 (Lilongwe District Registry), relied upon by the defence, as wrongfully conferring on the IRC power to grant injunctions through mere rules.

Secondly, the plaintiffs submitted that since some of the issues raised in this matter border on defamation over which the IRC has no jurisdiction, then the matter cannot be properly tried in the IRC. In this regard counsel for the 3rd plaintiff intimated that he would be seeking to amend the originating summons to include a claim in defamation.

Thirdly, it was submitted that by commencing this matter herein by an expedited originating summons, the intention was that the matter be resolved quickly. Hence if the matter would be transferred to the IRC the parties would be starting all over again. At this stage, it was said, the matter is ready for hearing. In support of this position, counsel for the 3rd plaintiff stated that he and his client had gone to the IRC where the clerk responsible for statistics indicated to them that taking into account the current backlog of cases in the IRC, this matter, if transferred to the IRC, was likely to come up for hearing in 2019 . Thus, it was submitted, the interest of justice, which favours the expeditious disposal of the case, could only be attained in this court.

Fourthly and finally, it was the 3rd plaintiff s case that he had earlier commenced an action in the IRC (IRC Matter No. 713 of 2015) on the same facts as herein, but had abandoned it and recommenced it in this court. The 3rd plaintiff was thus concerned that if the matter would be transferred back to the IRC "it means he is going back to the same court" and this was a compelling reason why the matter should not be transferred back. Counsel did not elaborate why the 3rd plaintiff was anxious about this eventuality. For that reason I will refrain from considering the concern.

Defendant's arguments

Defendant's counsel submitted as follows:

Firstly, the IRC is the proper forum for challenging the procedure taken by an employer against an employee that is deemed by him to amount to unfair labour practices, as well as claims for procedural impropriety. Should the plaintiffs be of the view that the disciplinary process and outcome are not favourable they will be at liberty to challenge the same in the IRC. In any event the 3rd plaintiff already commenced proceedings in the IRC claiming damages for unfair labour practices. Counsel cited several case authorities including The State v Malawi Development Corporation, ex p. Nathan Mpinganjira Civil Cause No. 63 of 2003 where the court dismissed the application for judicial review on the grounds, inter alia, that the High Court was not the appropriate forum to deal with issues of employment; The State vs Malawi Revenue Authority, ex p Shadric Namalomba Civil Cause No 22 of 2015, a judicial review matter, where it was held that the plaintiff had an alternative remedy available in the IRC; also Rev MacDonald Sembereka's case for the position that the IRC has jurisdiction to grant injunctive relief.

Secondly, that there are no specific remedies the plaintiffs are arguing. In particular no relief for defamation is being sought in the originating summons, and, in any event, the plaintiffs are not precluded from bringing a separate action for defamation; that the whole case is an employment case.

Thirdly and finally, that in line with the decision in Stanbic Bank Ltd v Lenson Mwalwanda MSCA Civil Appeal No. 22 of 2007 there are no compelling reasons in this case for the plaintiffs to avoid the IRC. The case of Godfrey Sadyalunda v Queen Liwewe t/a Chikago Investments and lndetrust Civil Cause No. 116 of 2009 was also referred to for the position that special courts should not be avoided willy nilly.

Issues

Two broad issues emerge:

1.   Whether the fact alleged by the plaintiffs that the matter will be more expeditiously tried in this court, if true, is a compelling reason why the matter should be tried in this court;

2.   Whether the IRC lacks jurisdiction to grant certain reliefs attendant to the dispute herein, and, consequently, whether or not it partially lacks jurisdiction in this case on that account.

Determination

Undisputed Position

The position, if not yet fully settled, stands on considerably solid ground, that unless there are compelling or convincing reasons for avoiding the IRC, labour matters ought to be instituted in the IRC since that court was established to handle such cases, and notwithstanding that the High Court also has first . instance jurisdiction over such matters: Stanbic Bank Ltd v Lenson Mwalwanda iv1SCA Civil Appeal No 22 of 2007; Godfrey Sadyalunda v Queen Liwewe t/a Chikago Investments and Indetrust Civil Cause No, 116 of 2009; Mpungulira Trading Ltd v International Commercial Bank Ltd Civil cause No. 493 of 2012; Chilemba v Malawi Housing Corporation [2008] MLLR 137; Andrew Thawe v Blantyre Water Board Civil Cause No. 379 of 2015.

Happily none of the parties in this case dispute this position.

On the question of expeditious trial

It is my view that the case has not been made out proving that this matter would be more expeditiously tried in this court than in the IRC.

To begin with Mr Mumba, counsel for the 3rct plaintiff , who brought up the issue, did not seem to have seen the statistics, duly examined them and satisfied himself that what he was told by the officer at the IRC was correct, or why he believed the officer. The alleged position was only indicated to him and his client.

Further to that, and perhaps more critically, the statistics referred to were not placed before this court for its own appreciation of the same. We cannot proceed on the basis of bare unproven assertions.

Further still, there are no comparable High Court case statistics to demonstrate that the IRC is less inundated with cases than the High Court. In saying this I have in mind the lamentations made by my brother Judge in this Registry, Tembo J, in the case Mulli Brothers Limited v Malawi Savings Bank Civil Cause No. 432 of 2012, who, after considering a statistical analysis of the case flow in the High Court, put it on record that the average case load for Judges, particularly in this Registry, was not of an acceptable size. Stemming from my own experience as a Judge in this Registry I am in a position to inform counsel that the situation has not improved. Whilst the case load increases the number of Judges has even dwindled.

Finally, in regard to the argument that the present matter is ready for hearing in this court merely because it was commenced by expedited originating summons is of doubtful veracity in view of the position taken by the 3rct plaintiff that he intends to bring up an amendment to include a claim for defamation. This is because a claim for defamation cannot possibly be sustained in an action brought by way of originating summons. If the amendment should take place the matter would have to proceed as though commenced by a writ of summons, entailing that the parties must undertake some interlocutory processes incidental to actions so instituted before the matter would be ready to be set down for trial, processes such as summons for directions, discovery and inspection, mandatory mediation, etc. This strongly counters the plaintiffs' argument that the matter is ready for hearing in this court.

The plaintiffs' position regarding expeditious trial in this court is unsustainable.

On the question of jurisdiction

Concerning whether the IRC can grant injunctive relief Kapanda J, as he then was, stated in Kankhwangwa's case (at page 234):

"[t]he subordinate courts in Malawi do not exercise equitable jurisdiction. As a matter of fact, the Industrial Relations Court, which is u subordinate court is not a court of equity. Surely, if it was such a court that had equitable jurisdiction it should have had jurisdiction to grant equitable remedies. Moreover, the jurisdiction of the Industrial Relations Court is clearly spelt out in the Constitution and the Labour Relations Act, 1996. It has jurisdiction to determine disputes brought to under the Labour Relations Act or any other written law. It is trite knowledge that equity is not written law. There is accordingly no equitable jurisdiction conferred on the Industrial Relations Court.

On the other hand, in Rev Sembereka's case, Dr Kachale J considered whether or not the law empowers the IRC to grant injunctions in labour matters, and not necessarily to exercise equitable jurisdiction generally. The Kachale J considered in particular the provisions of Rules 16 and 25 (1) and (m) of the Industrial Relations Court (Procedure) Rules as read with section 54(2) of the Labour Relations Act and came to the conclusion that "an interim injunction in the course of a labour dispute might be an interlocutory remedy incidental to proceedings before the !RC" The Judge expressed the view that the provision in section 54(2) of the Act, that "The Industrial Relations Court shall not grant an injunction...", in particular, would seem to assume that the IRC does have competence to grant injunctions, and that section 54(2) "is simply to ensure that in the case of persons involved in industrial action of whatever type, such injunctive relief should not issue without their having been granted an opportunity to be heard ..."

The Judge stated further:

"By necessary analogy therefore and especially in light of the acknowledged incompleteness of the procedure laid out in the !RC (Procedure) Rules (see Rule 16 ...) it is quite reasonable in my court 's opinion to conclude that in proper cases a party before the !RC may ... seek an injunction as an interlocutory relief This position does not disregard the conclusions of Liquidator, Import and Export (Mw) Ltd v Kankhwangwa and others [2008] MLLR 219 to the effect that the !RC is not a court of equity; rather it is contended that Rule 16 of the !RC (Procedure) Rules and the spirit of section 54 of the Labour Relations Act indicate clearly the expansive jurisdiction which the law and the rules have conferred on the !RC in handling labour disputes. "

It is trite that the IRC is a creature of the Constitution and derives its jurisdiction from statute, namely, the Labour Relations Act. Section 110(2) of the Constitution provides:

"(2) There shall be an Industrial Relations Court, subordinate to the High Court, which shall have original jurisdiction over labour disputes and such other issues relating to employment and shall have such composition and procedure as may be specified in an Act of Parliament."

And section 64 of the Labour Relations Act:

"64. Jurisdiction

The Industrial Relations Court shall have original jurisdiction to hear and determine all labour disputes and disputes assigned to it under this Act or any other written law. "(my emphasis).

The term "written law" is interpreted under section 2 of the General Interpretation Act to include the Constitution, Acts, and subsidiary legislation. "Subsidiary legislation" is defined to mean, inter alia, "a ... rule . . . or other instrument made under any written law and having legislative effect".

The specific jurisdiction in so far as the granting of injunctions by the IRC IS covered under section 54(2) of the Labour Relations Act and also Rule 25 of the Industrial Relations Act (Procedure) Rules. Section 54(2) of the Labour Relations Act provides:

"(2) The Industrial Relations Court shall not grant an injunction against any person instigating, participating in or otherwise supporting a strike or lockout or any act in furtherance of a strike or lockout unless-

(a)       the application for an injunction has been served on the other parties to the proceedings;

(b)       service has been effected at least forty-eight hours before the hearing of the application, save where the Industrial Relations Court is satisfied that the acts in question would endanger the life, safety or health of any person; and

(c)        the other parties have been afforded a reasonable opportunity to be heard. "

There is here referred to specific injunctive jurisdiction in a particular set of circumstances i.e. "against any person instigating, participating in or otherwise supporting a strike or lockout or any act in furtherance of a strike or lockout ", upon application to the IRC by the Minister.

Under Rule 25 of the Industrial Relations Court (Procedure) Rules, the IRC Is conferred a power to grant "urgent interim relief pending a decision by the Court after a hearing" as well as "an interdict or other order in the case of any action that is prohibited by law regarding any trade dispute". As already observed, according to section 2 of the General Interpretation Act, rules made under any written law and having legislative effect are subsidiary legislation and are, as defined, written law. Therefore the Industrial Relations Court (Procedure) Rules constitute written law and the IRC may exercise the jurisdiction granted to it under them, being, if I may repeat, "urgent interim relief pending a decision by the Court after a hearing" as well as "an interdict or other order..."

Granted then, that the IRC may exercise such original jurisdiction to hear and determine all labour disputes and disputes as is assigned to it under the Labour Relations Act and any other written law, I find that the IRC has jurisdiction under the provisions of the Act and the rules made thereunder to grant injunctive relief within the context of its resolution of labour disputes and that he injunction obtained in this action would fall in that category.

I make no determination regarding the IRC's jurisdiction to hear claims m defamation, there being no such claim in this action this far. The issue is moot.

Conclusion

The plaintiffs have failed to demonstrate that there are convincing or compelling reasons why this matter, being a labour matter, should not be brought before the IRC. In the premises I order that the matter be transferred to the IRC.

Costs are awarded for the defendant.

Made in chambers at Blantyre this 26th day of August 2016.


_______________

R Mbvundula

JUDGE