Anchor Industries Ltd v Curtis (Miscellaneous Civil Cause No. 92 of 2022 (Being IRC Matter No. 463 of 2017)) [2024] MWHCCiv 20 (11 October 2024)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION MISCELLANEOUS CIVIL CAUSE NUMBER 92 OF 2022 (Being IRC Matter No. 463 of 2017) BETWEEN ANCHOR INDUSTRIES LIMITED APPELLANT AND RITA CURTIS . : RESPONDENT CORAM: JUSTICE M. A. TEMBO Diminga, Counsel for the Appellant Kanyenda, Counsel for the Respondent Makhambera, Official Court Interpreter ORDER 1. This is the decision of this Court on the respondent’s application that the appeal brought by the appellant against the decision of the Industrial Relations Court made on 31 October, 2022 upholding the respondent’s claim against ihe appellant for underpayment of terminal benefits be struck out for want of prosecution. The application is contested. 2. The facts of this matter are not complicated, Since the respondent obtained judgment herein, the appellant filed a notice of appeal against the decision of the Industrial Relations Court on 9" November, 2022. On 30 November, 2022 the appellant obtained an order suspending enforcement of the decision herein before this Court without notice to the respondent. The order suspending enforcement was continued with conditions by an order dated 10" March 2023, after an application was heard in that regard on notice to the respondent, . On 21" August, 2023, the respondent filed an application to strike out the appeal for want of prosecution. After hearing both parties, this Court declined the application but ordered the lower court to prepare the record within 14 days. . A year later, the record of appeal is still not ready. And this prompted the respondent to file the present application to strike out the appeal herein for want of prosecution. . The respondent lamented that it is not fair and just that the appeal lie without being prosecuted since 20 months after the notice of appeal was filed, And that the appellant was not doing anything to ensure that the record of appeal was ready and that the appeal is prosecuted accordingly, . On its part, the appellant contended that it is the duty of the Industrial Relations Court to prepare the record and that therefore the appellant cannot be held responsible for the lapses of the Industrial Relations Court in that regard. It added that it has been following up on the preparation of the record of appeal herein. . The appellant indicated that, in fact, on the eve of the hearing of the present application the record of appeal from the Industrial Relations Court was filed with this Court. However, an examination of the alleged ‘record of appeal’ revealed that it was actually the file of the Industrial Relations Court in this case, . This Court wishes to observe that authorities abound that a matter may be dismissed for want of prosecution. That is, where there has been inordinate and inexcusable delay in the prosecution of the case. The rationale for this position is stated by Supreme Court of Appeal stated in Fincom Ltd v Nu- Trade Ltd [2010] MLR 101 (SCA) at 108 that: Courts have the inherent duty to bring litigation to closure and it is a legitimate exercise of judicial discretion for an Appellate Court to dismiss an appeal pending before such court on the ground of unexplained failure to prosecute the appeal. The term “prosecution”, with reference to civil litigation, is used to include every step in the action, from its commencement to its final determination: See Black’s Law Dictionary, Sixth Edition. 9. This Court agrees with the respondent that, apart from alleging that it followed up with the Industrial Relations Court herein without any supporting evidence such as letters served on the same, the appellant has not shown that it actively took steps to ensure that the Industrial Relations Court prepared the record in this matter. The result is that there has been inordinate and inexcusable delay in the prosecution of the appellant’s appeal since there has been no record of appeal to date. 10. The appellant cannot make the argument that it has no role to play in ensuring that the Industrial Relations Court herein prepared the record of appeal. A look at Order XXXIII of the Subordinate Court Rules which applies regarding appeals from the Industrial Relations Court to this Court, in terms of Order 27 of the Industrial Relations Court (Procedure) Rules, shows that it provides as below: 1. (1) Appeals to the High Court shall be brought by giving notice of appeal in Form 26. (2) The appellant may appeal from the whole or any part of a judgment, and the Notice of Appeal shall state whether the whole or part only, and what part, of the judgment is complained of. (3) The Notice of Appeal shall be instituted and filed in the proceedings in which the judgment appealed from was pronounced, and shall be filed within fourteen days from the day on which such judgment was pronounced. At the same time the appellant shall pay the prescribed fee for such Notice. (4) The Notice of Appeal shall be served by the appellant on all parties directly affected by the appeal or their legal practitioners respectively. It shail not be necessary to serve parties not so affected. 2. (1) When the appellant has complied with rule 1 the Court appealed from shall prepare the requisite number of copies of the record comprising the pleadings, the notes of evidence, the judgment appealed from, the documentary exhibits and any other relevant documents. (2) As soon as the copies of the record are ready, the Court appealed from shall serve the appellant with a notice in Form 27. (3) Upon request by the appellant and upon payment by the appellant of the cost of preparing the record the Court shall supply the appellant with one copy thereof. (4) Within fourteen days from the service upon him of the notice referred to in subrule (2) the appellant shall prepare a Memorandum in writing setting forth the grounds of appeal, and shall forward to the Court appealed from the number of copies of the Memorandum called for in the notice. 3. On receipt of the copies of the Memorandum of Appeal the Court appealed from shall prepare the Record of Appeal which shall consist of— {a) the documents referred to in rule 2 (1); and (b) the Memorandum of Appeal, and shall forward the appropriate mumber of copies of the Record of Appeal to the Registrar of the High Court. 11.{t is clear from the above Order XXXII of the Subordinate Court Rules that in terms of the preparation of the record of appeal, both the appellant and the Industrial Relations Court have a duty to perform in that regard. The appellant has failed to show that it performed its duty in that regard over the course of the time that has elapsed since it filed its notice of appeal herein. That conduct is inordinate and inexcusable. Appellants are reminded to actively pursue the preparation of the records of appeal and not sit idly by as time passes. 12. The respondent’s application is accordingly granted and the appeal herein is struck out and the order of suspension that was granted to the appellant is also vacated. Each party shall bear its own costs per the dictates of section 72 of the Labour Relations Act. See First Merchant Bank Limited v Mkaka and 13 Others MSCA Civil Appeal No. 53 of 2013 (Unreported), Made in chambers at Blantyre this 11" October, 2024. . A. Tembo