REPUBLIC OF MALAWI
IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NUMBER 37 OF 2014
LEONARD KABATIKA CHIPETA ......................................................................APPLICANT
THE REGISTERED TRUSTEE OF MBAWEMI WOMEN ASSOCIATION......................RESPONDENT
HIS HONOUR KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON
PATRICK NGWIRA, COUNSEL FOR THE RESPONDENT
WILLIAM CHIWAY A, COUNSEL FOR THE APPLICANT
WASHINGTON MWENELUPEMBE, COURT CLERK
RULING ON A MOTION FOR STAY OF EXECUTION OF JUDGEMENT PENDING APPEAL TO THE HIGH COURT.
Before me is the respondent's application for stay of the execution of the judgement made by my predecessor His Honour Msowoya on the 5th day of September, 2018 which decided that the respondent do pay to the applicant the sum of MKl, 400,000.00 as withheld salaries for a period of 10 months which accrued during the applicant's alleged employment with the respondent. The said application is said to be made pending determination of the appeal that has been lodged in the High Court. The application is supported by an affidavit sworn by counsel for the respondent and skeletal arguments. Counsel for the respondent has adopted the said affidavit and the skeletal arguments. Let me state at the very onset that the application was initially brought exparte but I settled for the interparte hearing. During the oral submissions, counsel for the respondent to a larger extent relied. on the filed affidavit and the skeletal arguments whereby counsel for the applicant did not file any affidavit and skeletal arguments and sought the court's indulgence to solely rely on his oral submissions.
Just to state that the thrust of the application is that the respondent having looked at the judgement herein are not satisfied with the whole of it and have therefore filed the notice and the grounds of appeal with both the lower court and the High Court. As such, the respondent (Now applicant) believes that in the event that the execution herein proceeds, it will render the appeal nugatory and that they feel that the likelihood of the respondent succeeding on appeal is high.
Counsel for the applicant opposes the application for stay herein because of the following reasons:
1) That the procedure taken by the respondent is irregular and misconceived
(a) The judgement herein is a default judgement which was entered upon the respondent's failure to follow the court's direction made at the Prehearing Conference with regard to filing of a defence and supporting documents and or evidence in general. As such as per Rule 25 (h) of the Industrial Relations Court (Procedure) Rules, the respondent ought to have applied to this court to set aside the default judgement and not to appeal to the High Court. Thus, they submit that the appeal which the application herein hinges on is irregular such that no order of stay can be granted.
(b) That this being a default judgement it cannot be appealed against on the ground that there were no member panelists since there is no any legal requirement that for this court to enter a default judgement, there must be member panelists.
2) Secondly, that the respondent cannot argue that the court erred for making a judgement without hearing the respondent's evidence when it was the respondent itself who chose not to avail itself to the court upon being directed by the court to do so.
3) Thirdly, that the respondent's argument that if the execution proceeds, the appeal will be rendered nugatory is unsubstantiated mainly because the onus is on the one alleging to prove that the applicant in the main matter cannot be in a position to pay the judgement sum of MK1,400,000.00 in the event that the appeal succeeds in the High Court.
4) Lastly, counsel has invited this court to generally assess the grounds of appeal herein filed to assess as to whether, by the respondent's submission, there is a high likelihood of the appeal succeeding in the High Court, as he said he does not want to delve into its merits.
To this opposing submission by the applicant's counsel, the respondent's counsel replied that under section 65 (2) of the Labour Relations Act, the appeal is on grounds of law and jurisdiction. So looking at their grounds of appeal, they are bringing in issues of law as well as of jurisdiction because the respondent is not satisfied as to the procedure for the then Deputy Chairperson not to sit with the member panelists. Again, the way in which evidence is received in the court of law. They believe that these matters are worthy being determined by the High Court.
On the applicant's argument that the decision herein emanates from a default judgement, counsel for the respondent argues that they did file a response and a prehearing conference took place and the court ordered that there should be a proper response and documentation filed. Such being the case, there was no any bar for the court from proceeding to hear the parties. Therefore they still believe that the application be granted so as to allow the High Court to determine the issues raised in the grounds of appeal.
The law on stay of execution pending appeal has been well settled in many local cases. The general principle is that a court of law should not make it a practice to deprive a successful litigant fruits of his litigation in anticipation of the outcome of the appeal as pronounced in Annot Lyle ( 1886) 11 PD 11 4.
In the case of CHIBUKU PRODUCTS LIMITED -V- JOHN MILLER Civil Cause Number 50 of 2017, Justice Chigona quoted the case of SPEAKER OF THE NATIONAL ASSEMBLY Exparte -V- HON. JOHN TEMBO MSCA, Civil Appeal
No. 27 of 2010 (unreported) which laid down the following principles on granting of stay of execution.
"(i) The court does not make the practice of depriving a successful litigant fruits of his judgement.
(ii) The court should then consider whether there are special circumstances which militate in favor of granting the order of stay and the onus will be on the applicant to prove or show such special circ umsta nces.
(iii) The court would likely grant stay where the appeal would otherwise be rendered nugatory or the appellant would suffer loss which would not be compensated in damages.
(iv) Where the appeal is against an award of damages the established practice is that stay will normally be granted where the appellant satisfies the court that if the damages were paid, then there will be no reasonable prospect of recovering them in the event of the appeal succeeding."
In the case of MIKE APPEL AND GATTO LIMITED -V- GATTO LIMITED -V- SAULOS CHILIMA (2014) MLR 231 at 238 the Supreme Court commenting on these principles, observed as follows:
"Once an applicant has brought forward solid grounds for seeking stay, the court is then called upon to weigh the risks inherent in granting a stay and the risks inherent in refusing stay. This balancing process is what is here referred to as the court's discretion. Much as the court will not make the practice of depriving successful litigants fruits of their judgement and much as the mere filling of an appeal and probability of success will not qualify as stay of execution; while a court will be concerned about the appeal not being rendered nugatory, ultimately it is about how the court weighs these considerations and what they translate to in the particular case."
In the case of THE MINISTER OF FINANCE AND THE SECRETARY TO THE TREASURY -V HON. BAZUKA MHANGO MP AND OTHERS MSCA Appeal Case No. 17 of 2009, the
court had the following to say on the principles governing applications of this nature.
"My understanding of these principles is that a successful litigant may not be deprived of the fruits of his litigation without a good reason and that normally the only good reason to do so is when it appears to the court that there are no reasonable prospects of recovering the money in the event that the appeal succeeds. The justness of this is in the fact that while it is the duty of the court to see to it that the successful litigant should access the fruits of his litigation as quickly as possible, it is also the court's duty to ensure that it does not come about that a successful appeal is [not) rendered nugatory. And in order for the court to be able to determine whether or not an appeal, if successful would be nugatory by reason that there is no probability of the appellant getting the money back is a matter of facts which must be presented to the court for assessment."
ANALYSIS OF THE LAW AND THE EVIDENCE
The applicant in this matter (respondent in the main matter), in its grounds of appeal cited misdirection by the court in determining matters of fact without panelist to which it was replied to by the respondent (applicant in the main matter) that this was a default judgement as per section quoted by the court when it made its judgement, being Rule 26 (a) and (b) of the Industrial Relations Court Procedure) Rules .
Again, the applicant argued as a ground of appeal the error by the court in determining the matter without hearing the evidence of the then respondent's evidence thereby breaching rules of natural justice to which it was replied to by the then applicant that that it was the respondent the mse lve s who failed to avail themselves for court when the court directed them to file the necessary documents.
All in all, the application for stay hinges on the basis that if the execution proceeds then the appeal would be rendered nugatory if the a p p ella nt succeeds in the High Court. The reply is that the appellant has failed to adduce evidence of the applicant's impecuniosity when the onus was on them to do so.
On this submission we quote the case of THE ANTI CORRUPTION BUREAU -V ATUPELE PROPERTIES LIMITED Civil Appeal Number 27 of 2005 which stated as follows:
"The third principle is an exception to the general rule and states that where the losing party has appealed and is able to demonstrate that the successful litigant would be unable to pay back the damages in the event that the appeal succeeds, execution of the court's judgement may be stayed."
Herein, the applicant (then respondent) has not established that the respondent to this application, will be unable to pay back if execution proceeds. To that end, this can be treated as a matter of conjecture on the part of the applicant herein, without substantiating the same. The onus is on the applicant herein to prove the same. Be that as it may, the court in the ATUPELE PROPERTIES LIMITED case (supra) held that even where the party appealing is able to show that the successful party would be unable to pay back the damages if the appeal succeeds, the court may refuse an application for stay of execution if upon examination of the facts of the case, an order for stay of execution would be utterly unjust. See also: MALAWI REVENUE AUTHOURITY -V- MADEEM MUNSHI Civil Appeal Number 67/2013; per Mwaungulu, J.
In the judgement of the Deputy Chairperson, he said thus at Page 3:
"Having ordered the respondents file the appropriate statements of defence and documents to be relied on at trial, to date, respondents have neither filed the said statement, nor indeed presented any documentation challenging applicant's claims. On the contrary, the applicant filed his Trial Bundle complete with all documentation I have indicated before that was available during the pretrial conference....On accounts of respondents failure to file a proper defence and comply with the orders of this court, I hereby enter sum of (MK1,400,000.00) as claimed."
Thus it is clear that the judgement herein is not a judgement on merits but a default if not a summary judgement tenable under section 67 (3) of the Labour Relations Act.
Commenting on this section, His Honour Jack N'riva, Deputy Chairperson of the Industrial Relations Court, as he then was, said as follows in the case of GIOVANNI MASINGA-V- OPPORTUNITY INTERNATIONAL BANK OF MALAWI Matter No. IRC 644 of 2011 (PR):
"The issue in this matter is whether the matter can be disposed in a summary manner. Although the parties use the term summary judgement, the issue is about disposal of the matter on a point of law. This is under section 67 (3) of the Labour Relations Act which provides that:
'Where the dispute involves only a question of law, a sitting of the Industrial Relations Court may be constituted by the presence of the Chairperson or the Deputy Chairperson sitting alone.'
This is where the question of law alone and where the facts are not in dispute."
I have commented on this judgment because of the argument advanced by the now respondent that this was a default judgement and there was no need for the Deputy Chairperson to sit with member panelists when entering this judgement otherwise I am not intending to delve into the merits of the judgement. As to whether the same can be appealed against or not, it is clear from the judgement itself that the Deputy Chairperson rightly explained the Right of Appeal as follows: "Any party aggrieved by this ruling has the liberty to appeal to the High Court within 30 days from the date herein. Such appeal can only be in relation to matters of law and jurisdiction, not matters of fact as provided by Section 65 (2) of the Labour Relations Act."
All in all, in the instant case, this court is of considered view that it is not proper for this court to deprive the applicant (in the main matter) of the fruits of his litigation just because there has been lodged an appeal against the judgement of this court and also regard being had to the respondent's failure (now applicant) to show that the appeal will be rendered nugatory if it succeeds in the High Court.
To that end, the motion is hereby denied and is dismissed accordingly.
The Appellant has a right of appeal against this decision subject to section 65 of the Labour Relations Act.
DELIVERED At Mzuzu this 26th Day, of October, 2018.