Kandulo and Another v Avis Rent A Car Limited (IRC MATTER 89 of 2017) [2024] MWIRC 5 (2 January 2024)

REPUBLIC OF MALAWI IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MATTER NO. IRC 89 OF 2017 BETWEEN: Cee eee essen scxsraomnasmncnnisnsarnscnsneninienieNtMicnEecNeneN RRO TERNS 1S? APPLICANT PA TRICK. JER: occsisssveececcesneesssuavesseuswneworsevsowesusveveveecsmwensmswevens 2NP APPLICANT -AND- AVIS RENT A CAR LIMITED.......... ccc cccec cece eseeeeeecccccecececcccnseeecesens RESPONDENT CORAM: PETER M. E KANDULU, DEPUTY CHAIRPERSON Mbendera, Counsel for the Applicant, Matsimbe, Counsel the Respondent, K. Kakhobwe, Court Clerk 1 eS) CamScanner RULING ON MOTION FOR AN ORDER FOR STAY OF ORDER Introduction This motion for an order for stay of order granted on 9" day of November 2023 made under Rule 16 and Rule 25 (1) (K) of the Industrial Relations Court (Procedure) Rules is dismissed with costs to the Applicant on the reasons captioned to be presented later in the course of this judgement order. The reasons for dismissing the motion shall follow immediately after the brief facts and chronological order of the events of this case. Brief Facts and Chronological Order of Event of the Case The Applicants commenced the present proceedings seeking (a) damages for unfair dismissal (b) Severance Allowance for the period served and, (c) Pension. The IRC Form 2, a reply was filed on the 21* day of February 2017 disputing the claims as pleaded by the Applicants. A notice of the Pre-Hearing Conference was filed on the 03" day of April 2017. The matter was scheduled for the 30" day of April 2017. At the Pre-Hearing Conference, the parties failed to agree on the issues as pleaded. The Pre-Hearing Conference minutes and Witness Statements were filled on the 29" day of May 2017. The question, which was for determination was whether the Respondent unfairly dismissed the Applicants, whether the Applicants are entitled to damages for unfair dismissal and whether the Applicants are entitled to pension benefits and severance allowance. The matter was scheduled for the trial’s hearing scheduled on the 9" day of June 2021 at 11.30 am. The Respondent filed a notice of adjournment, which was granted, and the matter was re- scheduled to the 27" day of August 2021 at 8.30 am. On the date, which the matter was supposed to come for trial, the Respondent did not appear in court and no reason was given either to the court or to the plaintiff or the plaintiff's legal office handling the matter. A default Judgement on Liability was entered. Due to the non-attendance of the Respondent to appear on the date for trial, the Honourable Chairperson Mr Austin Msowoya directed the Assistant Registrar, pursuit to r 26 (10 (b) of the eS) CamScanner Industrial Relations Court (Procedure) Rules to enter Judgement by default because the Respondent's Reply does not disclose a reasonable defence to the Applicant’s allegations in their statement of claim. A default Judgement was entered on the 27" day of August 2021 against the Respondent pursuit to the order as directed by the Honourable the Chairperson that the Reply by the Respondent’s statement of reply did not disclose a reasonable defence to the applicant’s allegations as set out in the statement of claim. An Exparte Motion to Stay the Execution of the Default Judgement The Respondent filed an exparte motion to stay the execution of the default judgement and consequently to set aside the said default judgement. The Honourable Chairperson directed the matter to come to inter-parties. The Honourable Chairperson having heard the presentations of both the Applicant and the Respondent during the interparty hearing, he dismissed the motion to stay and to set aside a default judgement on the 6" day of September 2022 for three reasons firstly, the Respondent did not narrate, in clear and concise language, responses to every allegation of fact contained in the applicants’ statement of claim, as the statement of defence was a mere general denial intended to act as a holding defence in the hope that the trial will become a fishing expedition at which the applicants would be required to prove their claims without receiving preparatory response to their allegations of fact, secondly, setting aside default was not justifiable since the defence was a mere denial and thirdly, which is the last, the respondents’ own statement of reply does not disclose a reasonable defence in the context of the precepts and rules of practice expressly promulgated to regulate pleadings in the Industrial Relations Court. The Assessment of Damages Trial The matter was scheduled for the assessment trial first on the 20" day of March 2023 which failed to take place and Secondly, on the 19" day of July 2023 which failed to take place as well on the instance of the Respondent, thirdly on the 2°* day of August 2023 which failed to take place on the instance of the court. Finally, the matter was scheduled for trial on the 17" day of October 2023 at 11 am and the Respondent failed to comply with the time as directed by the court to appear. eS) CamScanner At the time of trial, the Applicant’s counsel was present and had informed the court that since she did not know the Respondent’s representative, she had verified with her clients whether they had spotted a representative of the Respondent on the court premises and she was told that they were not present. The Clerk of the Court Mr. Kelvin Kakhobwe had assured the court that he had called out both the names of the parties but 1t was only the Applicants who had answered the call that they were present at the court premises. However, he further informed the court that, while the clerk was walking into the courtroom, he had seen a missed call from the counsel of the respondent; he went out to check whether the counsel was on court premises but he did not spot him. Counsel for the Applicants exhibited a notice of hearing, which was well served on Counsel for the Respondent. The return service of the notice of hearing is on the court’s file. Having expected the notice of hearing and having noted that there were no reasons for the absences of the Respondent, which was communicated, either to the court or to the Applicant’s lawyer, the court ordered the matter to proceed to the hearing. The Background and History Explained The court has taken its time to explain the genesis, background and history of the matter in detail deliberately. The reasons being that, immediately after the conclusion of the hearing of the matter counsel for the respondent appeared in the makeshift chamber with his client. He had told the court that he had come on time but he was waiting at the Honourable Chairperson’s court premises. When the court inquired on whether he had presented himself to the registry to find out where the court was sitting, he told the court he did not but he was trying to call Mr. Kelvin Kakhobwe who did not return to his call. Lies by Counsel for the Respondent When the court asked him further, he then told the court lies that he had visited the registry, but a court official he had found in the registry did not know where the hearing of the matter was taking place. When the court had asked him whether he could be able to identify and show the court, the person who had advised him that he did not know where the court was sitting, counsel for the Respondent started changing statements. The court reminded counsel that being an officer of the court; he was supposed to be honest and truthful to serve his clients better than to come to court with lies. Counsel is once again being 4 eS) CamScanner reminded that telling the court lies when he was aware that he had failed to comply with the order of the court to appear before the court at a specified time based on the duly issued notice of hearing is not only disrespectful to the court but also it is a defiance. The court delivered its judgement on the 9" day of November 2023 in which the respondent was ordered to compensate the applicants. Motion for an Order to Stay Judgement Having delivered the Judgement on the 9" day of November 2023, the Respondent had filed an inter-parte notice of motion for an order for stay of the order granted on the 9" day of November 2023. The motion was made under Rule 16 and Rule 25 (1) (K) of the Industrial Relations Court (Procedure) Rules. In support of the motion, the Respondent filed an affidavit for an order for a stay of Judgement pending appeal sworn in by Peter Chikondi Matsimbe. In his affidavit, counsel had stated that the matter was scheduled for Assessment of compensation on 17 October 2023 at 11 O’clock in the forenoon. He states that on the said date, he was present at the court premises on time at 10.40 and there are two known courts at the IRC premises. Counsel stated that he had found several lawyers in the waiting area namely Senior Counsel Nkhono, Ackim Ndlovu, and Lawyer for MRA and Counsel Ndlovu was willing to testify. Counsel stated that he was told that the Clerk who was handling the matter was Mr. Kelvin Kakhobwe and when the time was approaching 11.00 O’clock, he called him to ask where the court was sitting. Counsel stated that the call to Mr Kakhobwe was not answered and he tried to find out the contact for Counsel Grace Mbendera to ask where she was because he did not see her around. Counsel stated that to his surprise, a few minutes later he saw counsel coming and she told him that she had proceeded to have the matter heard. Counsel stated that he told her that he was at the court premises in time and that they should go address the court to have the matter re-heard because he was not late. Counsel stated that he met the court and explained why he was not able to attend the court because the clerk did not pick up his call and he did not know where the court was sitting. eS) CamScanner Counsel stated that the court asked him why he called the clerk and did not ask the registry. Counsel continued to state that he responded that he was informed that it was his clerk so he had to call him directly as per practice. Counsel stated that the court accused him of telling lies left him in court and went straight into the car. Counsel stated that he made an application to have the matter re-heard but it was never given a date. Counsel stated that they have now received a copy of the judgement from the court. Counsel stated that in the said judgement the court has explained what transpired and with due respect to the court, counsel did not tell lies. Counsel stated that the audience that the court gave them was not recorded because the court seemed to be 1n a hurry packing the laptop. It was very unfair and unjust for this judgement to be allowed to stand since the Respondent was not allowed an opportunity to be heard. Counsel stated that they make this application for a stay of this judgement pending appeal or review. Opposition by Counsel for the Applicants Counsel for the Applicants opposes the motion for an order for stay of order. Counsel for the applicants filed an affidavit in support of their motion in opposition. In the affidavit, counsel had stated that the motion for stay only aims at denying the applicant the fruits of success of their litigation. Counsel had stated that from the historical perspective of the matter, the Respondent had always prayed tricks to delay the matter. It was her prayer that the court must dismiss the motion in its entirety as there is no single mention of the court staff or official that counsel for the Respondent met in the registry. The Law 16.-(1) An interlocutory application or other application incidental to any proceedings pending before the Court in respect of which no procedure has been provided for by the Act or by these Rules shall be brought by a party on notice of motion which shall, as near as possible, be in the form set out in IRC FORM 3 (2) The applications referred to in sub-rule (1) shall be supported by an affidavit: eS) CamScanner Provided that- (a) Applications as to procedural aspects need not be supported by affidavit; and (b) Depending on the nature of the application, the Court may dispense with such notice. General Powers 25.-(1) without prejudice to the decision-making power of the Court under section 67, the Court may on application or its motion at any time- (a) Before after the expiry of any period condone any failure to comply with any rule including periods save for the time within which an appeal may be lodged with the High Court and may abridge at any time prescribed by these Rules; (b) Allow the allegation in any form to be amended at any time; (c) If in any proceedings it appears that a party to the proceedings has been incorrectly or defectively cited, correct the error, defect, or order the substitution of the party; (d) Join any other person as a party to the proceedings at any time on any such terms and conditions as it deems fit; (e) Make an order consolidating the disputes pending before it in separate proceedings where it deems such consolidation expedient and just; (f) Allow any party at any time to amend his application or his opposition; (g) Grant any order in the absence of a party if it is satisfied that the party had notice of the set hearing date; (h) Rescind on good cause being shown, any order made by it in the absence of a party; (1) order any person who fails to comply with any notice or directive given in terms of these Rules to do so: (j) Order that any party who fails to comply with any notice or directive shall not be entitled to any relief in such proceedings; eS) CamScanner (k) Set aside any irregular step, which has been taken by another party unless the party complaining of the irregular step has with knowledge of the irregularity taken any further step in the proceedings: (1) Declare in the case of a partnership or film, that any person was at a certain time or for a certain period a partner of a partnership or the proprietor of a firm; (m) grant- (i) Urgent interim relief pending a decision by the Court after a hearing; and (11) An interdict or any other order in the case of any action that is prohibited by law regarding any trade dispute; (n) Before or during a hearing, grant a rule nisi and confirm or discharge a rule nisi on the return date if appropriate unless the Act otherwise provides; and (o) Preside at any pre-hearing conference. (2) In any application referred to in sub-rule (1), the Court may make such orders as it deems fit. (3) The Chairperson or, in his absence, the Deputy Chairperson shall, in his direction, decide when and for how long the Court shall be in recess during any year. (4) The Court, in the exercise of its powers and discretion and the performance of its functions, may act in such manner as it may consider expedient in the circumstances to achieve the objectives of the Act and in so doing it shall have regard to substance rather than form, save as is otherwise provided in the Act. Legal Principles for granting a stay The legal principles, which guide a court when considering an application for a stay of execution of judgment pending appeal are thus very, clear. The general rule is that the Court does not make a practice of depriving a successful litigant of the fruits of his or her litigation: see J. Z. U. Tembo v. Gwenda Chakuamba, supra, Re Annot Lyle (1886) 11 PD 114. The Malawi Supreme Court of Appeal restated this position in Dangwa and Another v. Banda (1993) and Mike Appel & Gatto v. Saulosi Chilima, (2013) MLR 231, MSCA. Therefore, the fact eS) CamScanner that a party has exercised his or her right to appeal to a higher Court does not mean that the judgement appealed against must be stayed: see Order 59, rule 13 of RSC. However, the Court is most likely going to grant a stay where the appeal, if successful, would be rendered nugatory: see Wilson v. Church (No. 2) (1879) 12 Ch D 454. In Press Corporation v Cane Products Limited (2005) MLR 377, the court emphasized that the burden to show special circumstances warranting a stay of execution is always on the applicant: see also Mhango v. Blantyre Land and Estate Agency Limited 10 MLR 55 and Barker v. Lavery (1885) 14 QBD 769. The applicant therefore needs to demonstrate to the Court that there are special circumstances in favour of granting a stay. Further, a Court will order a stay of execution pending appeal when it is satisfied that the applicant would suffer loss, which could not be compensated in damages: See paragraph 59 /13/1 of the RSC. At the end of the day the question of whether or not to grant a stay is at the discretion of the Court and each case must be assessed on its facts and merits, Nyasulu v. Malawi Railways Limited [1993] 16{1) MLR 394. Generally, the Respondent bears the onus to prove that the Applicant will not be able to pay back the damages awarded to it. In Anti-corruption Bureau vy. Atupele Properties Ltd, MSCA Appeal Case No. 27 of 2005 {1 February 2007), Tambala JA (Rtd), made the following pertinent observations: "First it [stay of execution] is within the discretion of the Court. Secondly, the general rule is that the Court shall not interfere with the right of a successful party to enjoy the fruits of litigation. Third, where a respondent would be unable to pay back the money then a stay may be justified. Lastly, the court would still have discretion to refuse a stay even where the respondent 1s impecunious if the stay would be utterly unjust and oppressive. © The bottom line is that the applicant must demonstrate that the respondent falls within the exceptions. It is not for the respondent to demonstrate the capacity to pay back. The duty lies on the applicant to establish the respondent's lack of capacity to pay back." In Davies Lanjesi & Others v. Joshua Chisa Mbele, HC/PR Civil Cause 1 of 2014 (unreported). Katsala J addressed the issue, on page 6, as follows: eS) CamScanner "All that the defendant has done is to state that he is optimistic that his appeal will succeed as such the judgment must be stayed. He has gone to great lengths to set out his 20 grounds of appeal and the reliefs he expects to get from the Supreme Court of Appeal. These are irrelevant in as far as, the present application is concerned. Even if he were to state a million grounds of appeal, in my view, it would still be irrelevant and a waste of time, because grounds of appeal are not one of the considerations in an application of this nature. In other words, trying to demonstrate that the judgment appealed against is full of rubbish and will be reversed on appeal is pointless and a clear demonstration of a lack of knowledge of the principles governing the application. As was said in the Chidzankufa case {supra) at 182: the answer to the Plaintiff's argument. The fact that there are prospects of the appeal succeeding is not a ground upon which a stay can be granted. The words of Chatsika J, as he then was, in Nyirenda v AR Osman [1993] 16(1) MLR 400 at 403, readily come to mind. 'A judgment of a Court of competent jurisdiction remains enforceable even though there are good grounds that an appeal against the judgment will be successful. ' Reasoned Analysis of the Facts and the Law As already stated, the court delivered its judgement against the Respondent on the 9" day of November 2023, which 1s the subject matter of this motion. As captured in this ruling, the motion was supported by an affidavit sworn in by counsel Matsimbe for the respondent. I had read the affidavit in support carefully to appreciate the reasons advanced by counsel Matsimbe for this court to grant an order for a stay. I expected that Counsel would have mentioned the officer of the court whom he had met in the Registry in his affidavit who had advised him to go and wait at the Honourable Chairperson’s court. There is no mention of any officer of the court in the registry in his affidavit in support of the motion except a statement that he was told that the clerk handling his client’s case was Mr. Kelvin Kakhobwe. He failed even to mention the officer who had told him that the clerk handling his client’s case was Mr Kelvin Kakhobwe. This simply means counsel is not truthful in the presentation of his motion and yet he had prepared his sworn statement under oath. Counsel must be reminded that the first entry point of call at the Industrial Relations Court is the Registry. It is from the Registry that is and where all who are seeking assistance or information from the court get guidance. 10 eS) CamScanner Ms Rose Msimuko heads the Registry and she is deputised by Mr Kelvin Kakhobwe. There are also other Court Clerks who manage and assist the court clients in the Registry and their names are Mr Dan Kanyatula and Mr Fredrick Zakaria. If counsel had visited the registry when he had arrived earlier as he had alleged, he could have been assisted and told where the court he had come to attend was sitting. Mentioning non-court staff like Senior Counsel Nkhono, Ackim Ndhlovu and Lawyer for the MRA, demonstrates and shows that counsel never bothered to call or visit the registry to find out where his client’s case would be heard. If it were an ordinary client who was not familiar with the court, perhaps the court would have been lenient. However, this is a lawyer vested with knowledge of how the court is supposed to operate. It is surprising how Counsel would just walk into the court premises and find himself a comfortable seat in a court belonging to the Honourable Chairperson who was not handling his client’s case. Counsel, waiting for his client’s case without finding from the Registry which court for his client’s case will be sitting? Counsel further goes to swear an affidavit that he was calling Mr Kelvin Kakhobwe on his mobile number. What was the essence of personalising court business and calling Mr Kelvin Kakhobwe instead of visiting the registry? More so, Mr Kelvin Kakhobwe is the clerk responsible for the Assistant Registrar of the Industrial Relations Court. If counsel had visited the Registry at the time he reported for his client’s case, by the time he was preparing his affidavit in support of the motion, he could have remembered the name of the clerk who had advised him that he did not know where his client’s case would be sitting. By failing to mention any name of the clerk from the registry whom he met, demonstrates that he did not visit the registry when he had reported at the court. The court has evidence from Mr. Kelvin Kakhobwe that he called out the names of the parties to the proceedings but it was only the Applicants who answered that call and attended the court proceedings. It was only after he had entered the court that he saw a missed call from Counsel for the Respondent. Mr Kelvin Kakhobwe was allowed to go outside to check if counsel for the respondent had arrived and was within the Registry or court premises, but he did not find him. This was the only time that the court proceeded to hear the matter as it had evidence that the Respondent was duly served with the court notice of hearing and that the respondent was not present in court and no excuse or explanation for their absences was presented to either the court of the Applicant’s lawyer. 11 eS) CamScanner As you might appreciate the brief background of this case, it had always been the tendency of the Respondent to delay the proceedings of this case. It is on record even how the Honourable Chairperson entered a Judgement in default against the Respondent on liability because of their habit and tactic to delay the court proceedings based on their lame excuses. The respondent had not shown any special circumstances on the reasons that the judgement of the court should be stayed. They had indicated in their affidavit in support of the motion that they intend to appeal. There is no copy of the notice of appeal or leave to appeal which was produced and exhibited in this court. The court would have inspected and appreciated the grounds for the appeal appearing on the notice. By failing to file a notice of appeal or a notice of leave to appeal demonstrates the intention of the respondent they only aim to frustrate the fruits of the successful litigant. This court shall not be part of the drama started by the Respondent. Counsel for the Respondent has to be aware or reminded that he must always strictly follow religiously the procedures of the court. Counsel has failed to demonstrate in his affidavit in support of the motion the reasons the court should be compelled to stay his judgement. He has failed to demonstrate what would be the consequences if the order of stay were declined. He had only emphasized that it is very unfair and unjust for this judgement to be allowed to stand since the respondent was not allowed an opportunity to be heard. The court was very surprised by this statement when the counsel stated that they were not allowed an opportunity to be heard. There is evidence that the respondent was duly served with a notice of hearing, which specified the court officer handling, and issuing the notice and time for the hearing of the matter. The Respondent did not present himself or herself before the court or the officer hearing the matter at the appointed time. The question, which has exercised my mind, is how and when the court failed to allow the respondent an opportunity to be heard when they had exercised their right to disobey the order of the court, which summoned them to appear at 11.00 am. Does counsel understand the concept of denial to be given an opportunity to be heard? In my view, counsel does not understand the concept of being denied to be heard. They were invited to attend court proceedings for reasons known to themselves they arrived late at the court and went further to mislead the court that they had 12 eS) CamScanner approached the registry when they knew they had not. This is a misrepresentation of facts, which must at all times be avoided. The court is compelled to agree with counsel for the Applicants that the Respondent is only aiming at frustrating the fruits of the successful litigants when they filed the motion for an order to stay the execution of the judgement. Counsel for the Respondent had moved the court to dismiss the motion in its entirety with costs. The Industrial Relations Court only in special circumstances would award costs to a successful litigant. This is a special case where the court would exercise its discretion to award costs to the Applicant. I find that the motion for an order to stay the execution of the judgement 1s without any merit and a waste of court time. It is only based on a finding that I award costs to the applicant. Counsel for the Applicant is directed to prepare a warrant of execution so that the judgement order delivered on the 9" day of November 2023 is enforced immediately. Delivered in chambers this 2™ day of January 2024 at Blantyre. 5 ti ' — \ N le Sah Nese | | PETER M. E KANDULU /(i°-"-" DEPUTY CHAIRPERSON i Vi- f Li ff 13 eS) CamScanner