Chikago v Attorney General (Matter No IRC PR 172 F 20008) (NULL) [2010] MWIRC 5 (25 January 2010);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NUMBER IRC PR 172 OF 2008

BETWEEN

DR JAMES JOHN CHIKAGO........................................................ APPLICANT

AND

THE ATTORNEY GENERAL............................................. RESPONDENT

CORAM
N’riva Deputy Chairperson

Applicant: represented by Makiyi of Counsel

Respondent: represented by Chiundila of Counsel

Court Official: Ms Mbobe



N’riva DCP

RULING

The applicant commenced this action for unfair and unlawful termination of employment, seeking damages for breach of contract and unfair labour practice. He also sought salary and all the other benefits for the remainder of his contract as well as gratuity. The court entered judgment due to the respondent’s default to serve IRC form II. Later the parties drew a consent judgment for payment of K4,437,000.00 in full and final satisfaction of all the claimant’s claim against the respondent.

The respondent seeks to have the consent judgment set aside on the ground that at the time of drawing the consent, the parties were not ad idem. Further to that the state argues that the contract was not unlawfully terminated. This application is supported by an affidavit sworn by Dr Zolomphi Nkowani, the respondent’s Deputy Chief State Advocate. In the affidavit, the State Advocate states that the circumstances of the case are complex and involved two jurisdictions namely Malawi and Japan. This factor rendered the information-gathering process of the case to be slow and difficult on the part of the respondent. Further, the respondent entered the consent judgment on the basis of the information available to the respondent on the date the parties entered into consent. However, the respondent has had novel information that was not available at the time of entry of the consent. The new information, which the respondent refers to is to the effect that among other terms of the contract, the respondent could terminate the engagement of the applicant any time by giving a three-month notice in writing or paying him one month’s basic salary with advice of termination. By a letter dated 12th May 2005, the applicant was recalled to Malawi and was duly given three months notice which he served before coming to Malawi.

Counsel further depones that by clause eleven of the said contract the applicant was entitled to gratuity on the final termination of the contract, at two levels: 25% on the expiry of the full contract and 15% if the contract was not served to the full. Thus, in this matter, the applicant, having not served the contract to the full, he was entitled to 15% and not 25%. This amount translates into K197,213.08, which amount, the respondent paid the applicant. In other words, the applicant was served with a three months notice and that nothing was owed him. And the recall not unlawful since under the contract there was no such requirement as to give reasons for the termination.

The other ground, in the affidavit, is that while the applicant was at Tokyo in the diplomatic service, there were some ‘improprieties’ involving the applicant for which the respondent launched investigations. The respondent recalled the applicant for purposes of smooth operation in the investigations. Subsequent to the investigations, the applicant is answering charges of corrupt practices.

The question at this motion is whether or not this Court should set aside the consent order. The respondent argues that a court has jurisdiction to set aside a consent order on the ground that there was a mistake on the part of the parties in arriving at the consensus.1 This is to say where parties reached a consensus but with divergence of minds on a fundamental point, a court may set aside such a judgment. The basis of this reasoning is that there is actually no consent or the ‘consent’ is but in name. The argument of the respondent is that from the facts of the case, the consent judgment was drawn while the parties were operating on different levels of understanding i.e. that there were some misunderstandings: The respondent did not appreciate that the applicant’s dismissal was not unlawful but that it was meant to pave way for investigations. Further, the applicant was duly served with a notice of termination of the employment. The respondent furthermore attributes that state of affairs to the fact that the applicant suppressed some material facts.

The applicant, on the other hand, submits that where parties have entered a consent judgment, the judgment may be given effect as a final judgment or order of the court2 and that it can be set aside on a fresh summons.3 Further to that such a judgment acts as an estoppell4 and an application to set aside such an order can only succeed on assertions of fraud, mutual mistake, or misrepresentation. Counsel argues that the ground being raised by the respondent is that they have a defence on the merits. That ground, counsel argues, would have held good if the motion herein were to set aside default judgment. On the contrary, the parties drew the consent judgment after thorough discussions and weighing the defence the respondent intended to rely on. Further, counsel argues that the respondent cannot be heard to be relying on the criminal trial a s aground for persuading this court to set aside the consent. After all, so goes the argument, the criminal charge was commenced way back in 2006. The consent was drawn in 2008. And, the respondent would have had knowledge of the criminal proceedings as his office would have acted in conjunction with the Anticorruption Bureau (A.C.B.)5

In summary those were the arguments for and against this motion.

A consent judgment has an effect of a judgment by a court. Thus such judgment is enforceable as is the case with any other judgment. The peculiar feature of a consent judgment is that it is entered with the agreement of the parties. The judgment endorses the parties’ agreement, giving it the force of an order of the court. This gives the judgment the force of a binding contract. And, for the court to set aside such judgment, there has to be strong evidence of fraud, misrepresentation or mutual misunderstanding. Furthermore, to set aside such judgment, at least conventionally in the procedural law, as stated in Bhima v. Bhima6 the application must be by new action, not summons.

As Mwaungulu J put it in Shiptrade International Company Ltd v Transglobe Produce Exports7

a judgment or order by consent is binding on the parties until set aside. It also acts as an estoppel (Kinch v Walcott [1929] AC 483; Law v Law [1905] 1 Ch 140, at 158). The parties can appeal against it. They, however, need the leave of the court. The order can be set aside, but only by a fresh action on the same premise as would invalidate a contract (Huddersfield B Co v Lister [1895] 2 Ch 273; Re S American Co [1895] 1 Ch 37, at 44). A court has no jurisdiction to vary a consent judgment or order made previously in that court and therefore the only means open to a party to set aside a consent order or judgment on fraud, mistake or misrepresentation is by a fresh action for that purpose (de Lasala v de Lasala [1980] AC 546).

This Court is alive to the fact that rules of procedure/ evidence and pleadings are relaxed in the industrial relations proceedings. Nonetheless, my considered view is that the rules obtaining in consent judgment issues are rules that are based on the main-stream civil procedural rules. As such procedure has to be as is the case with the same processes in the other courts.

To that end motion to set aside the consent judgment is dismissed in that the motion had to be through a fresh action not a notice for determination whether, as I gather from the respondent’s arguments, there was mistake on their part. To that end, the consent of the parties still retains its status as a judgment and it stands enforceable. The court dismisses the motion to set aside the consent judgment.



MADE this day of 25th JANUARY 2010





J N’riva



DEPUTY CHAIRPERSON

1 Wilding v Sanderson [1897]2 Ch 534

2 Ainsworth v Wilding (1896) 1Ch D 673

3 Wilding v Sanderson [1897]2 Ch 534

4 Kinch v Walcott[1929] AC 483; Law v Law [1905] 1 Ch 140

5 Of course Counsel for the respondent refutes this allegation. Rather, they argue that the investigations at the A.C.B. are carried out solely by the A.C.B. as issues at the A.C.B. are quite sensitive. Further Counsel argues that no officer from the Respondent’s office was assigned in the investigation of the corrupt practice’s

6 6 MLR 427

7 [1997] 1 MLR 87 see also MSCA in In re KK Millers Ltd and In re Companies Act[1995] 2 MLR 458