Makalani v National Bank of Malawi (IRC 163 of 2007) ( of ) [2007] MWIRC 25 (07 May 2007);

Share
Download: 

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 163 OF 2001


BETWEEN:


MAKALANI (in place of I MAKALANI (deceased) Pursuant to Letters of Administration with limited grant dated 26 January 2007).………………………………………………. ……………...APPLICANT


-and-

NATIONAL BANK OF MALAWI……………..…...…………………RESPONDENT


CORAM: R. Zibelu Banda (Ms); Chairperson

Chisale; of Counsel for the Applicant

Mitole; of Counsel for the Respondent

Chinkudzu; Official Interpreter


RULING

Whether a Court can revisit its own perfected and effected judgment?


The background

Sometime in 2006, Counsel for the applicant presented a claim for severance allowance on behalf of the applicant now deceased. Counsel for the applicant supplied the court with written pleadings and calculations of severance allowance based on the prevailing laws. The court made an order on 30 May 2006 based on the applicant’s claim and pleadings. The respondent complied with the court order and paid according to the claim and calculations as submitted by Counsel for the applicant.


In or around January 2007 Counsel for the applicant brought an application asking the court to correct a clerical mistake made in the order of 30 May 2007. Counsel for the applicant was asking the court to increase the amount of severance allowance by calculating it based on some benefits which were omitted in the Order of 30 May 2006.


Counsel for the respondent objected to this application. She contended that the court did not make any clerical error as the severance allowance order was calculated and drafted by Counsel for the applicant after careful consideration of what constituted severance allowance. Further she averred that the applicant’s legal rights were determined by the order of 30 May 2006 therefore the applicant is estopped from resurrecting the action. She further contends rightly in this Court’s view that Counsel for the applicant is trying to use the court process to correct his negligence or omission in the presentation of his case in May 2006. In this respect counsel for the respondent pleaded the defence of res judicata.


Counsel for the applicant brought an action for severance allowance and basing on this Court’s finding that severance allowance was payable to the applicant, Counsel for the applicant proceeded to calculate the severance allowance. The draft order was prepared and filed by Counsel for the applicant. The Court had determined the issue by its ruling that severance allowance was payable and subsequently issuing a liquidated sum representing severance allowance due.


The Court agrees with Counsel for the respondent that the Court did not make any clerical error in calculation of severance allowance. The severance allowance was calculated by Counsel for the applicant after a careful consideration of the prevailing facts and law. If there was any error or mistake, it was entirely Counsel for the applicant’s error. Indeed this Court subscribes to the views quoted by Counsel for the respondent from Henderson V Henderson (3 Hare) at 114 appearing in Greenhalgh V Mallard [1947] 2 All ER 255, that ‘where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction the Court requires the parties to that litigation to bring forward their whole case, and will not, (except under special circumstances) permit the same parties to open the same subject matter of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.’


Finding

The Court finds that the motion brought by Counsel for the applicant is lacking in merit. The subject matter was resolved on 31 May 2006 after Counsel for the applicant pleaded and calculated what he thought was severance allowance due. The Court did not tamper in any way with those pleadings or calculations. The Court will not aid a party who brings shabby pleadings nor will this Court rectify a clerical error of a litigant if the effect of the correction is prejudicial to the innocent party. This action is therefore dismissed.


Right of appeal

Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this ruling in accordance with section 65 (2) of the Labour Relations Act.



Pronounced in Open Court this 7th day of May 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.