Mpaso and Others v Securicor Ltd (IRC 118 of 2011 ) (118 of 2011) [2005] MWIRC 85 (21 February 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF M ALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 118 OF 2001


BETWEEN


MPASO & 16 OTHERS…………………………… APPLICANTS


-and-


SECURICOR (MW) LTD…………………………. RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Dr. Mtambo of Counsel for Applicants

Nkhono of Counsel for Respondent

Applicant – Present

Ngalauka – Court Clerk



RULING

Application under Rule 25 (1) (h) Industrial Relations Court (Procedure) Rules 1999; Court’s general powers-Discretion-Exercise judiciary- Regard to the circumstances of the case and the need for expedience-economy and dispatch- Costs.


Background

Judgment in this case was delivered on 17th October 2004. The judgment was arrived at after hearing the 16 applicants in this case. The respondent did not attend the hearing. However the court record showed that the respondent had been served with a notice of special hearing sent by the court by post. The court official who posted the notice of hearing swore an affidavit of service. The letter was not returned to sender undelivered.


Further, on the day before the hearing, the respondent through Mr. James Chimbenje the respondent’s Human Resources Officer, sent a young lady to court to take notes from the court file in preparation for the hearing the next day. This young lady met the then Deputy Chairperson of the court to seek authority to read through the court file and take notes in preparation for the case. The then Deputy Chairperson authorized and released the file to this young lady who took time to read its contents and take notes. Surprisingly on the day of hearing the respondent did not turn up nor did they send any message to warn the court that they would not be attending court for hearing. The court had to proceed to hear the case pursuant to section 71 of the Labour Relations Act. Judgment was in favour of the 16 applicants. A date was set for assessment of compensation under section 63 (4) of the Employment Act. The respondent’s were sent a notice of assessment, which they duly responded to and Mr. Chimbenje for the respondent came for the assessment. Unfortunately on 2 November the matter had to be adjourned because we were experiencing some electricity rations. The Deputy Chairperson then asked that the matter be adjourned to 5 November for assessment. The respondent’s representative Mr. Chimbenje was in court when the matter was adjourned to three days later on 5November from 2 November. Supinely again, neither Mr. Chimbenje nor any representative from the respondent came for the assessment. No excuse was advanced to court for the failure by the respondent to appear for the assessment. The matter had to proceed in the absence of the respondent pursuant to section 74 of the Labour Relations Act.On 1 December 2004 the order for assessment was delivered. The respondent was ordered to pay money as compensation to the applicants. Since there were 16 applicants all of them unrepresented the court ordered that the money be paid into court so that the court could take the responsibility of paying out to each of the applicants. 14 days from 1 December was given within which the respondent to pay the money into court. On 13 December 2004 the respondent’s took out a motion to stay the order of assessment of compensation and have the assessment of compensation reheard. This motion was filed on 14 December 2004. Supinely, the respondent who had by this time engaged lawyers to represent them, and through their legal counsel sought to have this stay heard before the registrar of the industrial relations Court contrary to the provisions of Industrial Relations Court (Procedure ) Rules 1999, in particular Rule 5 that sets out the duties of the Registrar of the Industrial Relations Court and Rule 26 dealing with default judgments. The order of stay granted by the Registrar was therefore null and void as the Registrar had assumed powers, which he did not have, also see Whittle V Tea Research. On 3 February 205 the then Deputy Chairperson advised counsel for the respondent that the stay was irregularly obtained but that the respondent was at liberty to appeal against the whole decision leading to the assessment. An appeal of such nature lay to the High Court, 30 days after delivery of the decision against which a party is appealing against. Obviously the respondent had run out of time by this time because according to Rule 25 (1) (a) of the Industrial relations Court Procedure Rules 1999, time for lodging an appeal to the High Court from a decision of the Industrial Relations Court may not be abridged. Section 65 (2) of the Labour Relations Act provides that an appeal to the High Court must be lodged within 30 days of the decision being rendered. By 9 February 2005 the order of compensation against the respondent had not been complied with. The court subsequently issued a warrant of execution against the respondent. On 10 February the respondent was visited by the sheriff who upon being satisfied that the money had not yet been paid, levied execution in the sum of k1 242 396.38 inclusive sheriff fees.On 14 February 2005, the respondent through its counsel filed a motion to set aside the whole judgment of 17 October 2004 so that the respondent could be reheard. Counsel submitted that the respondent did not receive notice of hearing. The court had an affidavit of service on file, had proof that the respondent sent a representative on a day before hearing to get information from the court file pertaining to the case and had subsequently attended an assessment of compensation, which was adjourned for a good reason. Verbal communication was given to the respondent’s representative on the next date of hearing of assessment but the respondent did not attend court. Basing on these factors, the respondent’s excuse that they did not attend court because they had no notice failed. The court concluded that the respondent did not attend court for no good cause. Further although the court has powers to order a rehearing, these powers must be exercised judiciary bearing in mind the objectives of the Labour relations Act especially on the need for expedience, economy and dispatch. The judgment was entered in October 20004. It is beyond this court’s comprehension that it can take a respondent resident within Blantyre four months to make an application of the nature applied for in this case. It is also beyond this court’s comprehension that counsel could make an application for stay of the court’s order before a court official who has no powers to make any such orders;The application must fail on the following summarized grounds: The respondent did not have good cause for failure to attend court hearing. The court duly served the respondent with notices of hearing. The respondent took too long to apply that the judgment be set aside. The respondent was trying to use the back door to have the matter reopened after realizing that they had run out of time to appeal to the High Court. The respondent used the back door to have the judgment stayed before an official with no powers to stay a court’s decision, the respondent could have used the high Court, which has unlimited original jurisdiction in the absence of a judicial officer at the Industrial relations Court, in any case, section 65 (3) of the Labour relations Court, generally gives the respondent that opening. The respondent’s application is frivolous and an abuse of court of process. For the finding that the respondent application was vexatious, frivolous and an abuse of court process, the court invokes the provisions of section 72 (2) of the Labour Relations Act, and orders that the respondent bear costs of these proceedings to be assessed. The respondent further applied that the sheriff fees and expenses levied in this case be reimbursed to the respondent. The respondent did not have proof to show that on 9 February when the Sheriff first visited them they had paid complied with the order. Further, on 10 February when the Sheriff executed the respondent did not have proof of compliance with the order in the form of a receipt or any such proof. The application therefore fails.


Pronounced in open Court this 21st day of February 2005 at Limbe.



R. Zibelu Banda (Ms.)

CHAIRPERSON.