MWENISONGOLE v TOYOTA MALAWI (MATTER NUMBER IRC PR 511 OF 2008) (NULL) [2010] MWIRC 2 (27 July 2010);

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IN THE INDUSTRIAL RELATIONS COURT

BLANTYRE REGISTRY

MATTER NUMBER IRC PR 511 OF 2008

IN THE MATTER OF DISPUTE

BETWEEN

ALLAN MWENISONGOLE................................. APPLICANT

AND

TOYOTA MALAWI...................................... RESPONDENT

Coram

Jack N'riva Deputy Chairperson

For Respondent Lusungu Gondwe

Clerk Ms Ngalauka



N'riva DCP

RULING

This is a motion taken by the respondent to dismiss the action or strike out the statement of claim for being frivolous vexatious and abuse of the court process. The matter would have been coming for a pre-hearing conference. However, there was also this motion. The Registrar directed that this matter should be dealt with first. The motion is supported by an affidavit sworn by Mr Ralph Kasambara whose firm the respondent engaged for purposes of defending this action. Mr Mwenisongole, the applicant also swore an affidavit opposing this motion.

In the affidavit in support Mr Kasambara states that the applicant was in the employ of the respondent and was dismissed on 10th March 2004. The respondent paid the applicant all the terminal benefits. The applicant was entitled to a pension scheme. He was paid the pension less tax and an emergency loan. The respondent issued a cheque to the applicant in the said sum. The respondent said they deposited the cheque in the business account of the applicant. The business name was Maker General Dealers. The applicant further states that there are documents to support the payment and argues that the applicant merely intends to defraud the respondent.

In the applicant’s affidavit, he states that the respondent has never called him to collect a cheque. He further states that he has never operated a business in the name of Maker General Dealers. He depones that the normal procedure was that any payee of a cheque had to sign a cheque book maintained in the accounts section. The applicant did not sign any cheque receipt book for the said cheque. He did not receive the cheque and he does not know the person who received the cheque on his behalf.

The question is whether or to dismiss the applicant’s action. As we can note, there seem to be a factual dispute as to whether the applicant was paid the cheque in question. Much as the respondent insists on having paid the pension into the applicant’s business account, the applicant denies ever having owned the said business. There are also questions of procedure on payments of cheques. These are questions of facts. These are questions which would not, normally, be dealt with in an interlocutory fashion. It might not be procedurally and substantively proper for this court to decide this matter in the manner being suggested in this motion. Therefore, this motion is dismissed. I do not, however, agree with the applicant that this dismissal of the motion should be with costs. I do not take this action, on its own, to be frivolous. There could be one or two issues that are cloudy. However, it appears that the respondents are quite certain that they paid the applicant. On the other hand, the applicant holds the view that he was not paid. The fact that the applicant was not paid could be out a mistake. Of course, I am not pre-empting. But the bottom-line is that the parties can actually resolve the issue without the involvement of the Court. I, therefore, encourage the parties to hold discussions or pre-hearing conference on the issue as is arising. This therefore is to require the parties, under the authority of Rule 13 of the Industrial Relations Court Procedure, to hold a pre-hearing conference at a place and time convenient to both the parties.



MADE this day of 27th July 2010







J N'riva

Deputy Chairperson