Namasasu v Msungama and Another (Civil Appeal 8 of 2016) [2017] MWSC 23 (6 March 2017)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 96 OF 2006 BETWEEN: ANTHONY DANIEL GEORGE MASANZA (MALE) ..... APPLICANT - and - THE MALAWI ELECTORAL COMMISSION ......... RESPONDENT CORAM: THE HONOURABLE MR JUSTICE JS MANYUNGWA Mr Makhalira, of Counsel, for the Applicant Mr Kaphale, of Counsel, for the Defendant Mr Thewete — Official Interpreter RULING Manyunewa, J. This is the applicant’s summons for an inter — parties order of interlocutory injunction. The applicant is Anthony Daniel George Mazanza who was at all material times until the 2"! day of August 2006 Chief Elections Officer while the respondent is the Malawi Electoral Commission hereinafter referred to as the Respondent a body established by statute to oversee elections in Malawi. The application is supported an affidavit sworn by the applicant himself while the respondent filed an affidavit in opposition sworn by Reverend Emmanuel Chimkwita Phiri, a member of the Malawi Electoral Commission. Mr Makhalira appears for the applicant while Mr Kaphale represents the respondent. In his affidavit in support of the application, the applicant states that he entered into a contract of employment with the respondent on 21“ October 2004 as its Chief Elections Officer for a period of 5 years. The applicant exhibited exhibit “ADGM 1” which is a copy of the Contract of Employment. It is stated by the applicant that to his surprise on the 2" day Page 1 of 13 of August, 2006 he was given a letter of termination of his services, a copy of which was exhibited as exhibit “ADGM 2”. The said letter is in the following terms:- Malawi Electoral Commission Development House Private Bag 113 BLANTYRE 2™ August, 2006 Mr A D G Masanza C/O Malawi Electoral Commission Private Bag 113 BLANTYRE Dear Mr Masanza TERMINATION OF SERVICE I regret to inform you that following the disciplinary hearing on 1“ August, 2006 whereat you were afforded an opportunity to be heard on various allegations against you with regard to your performance as Chief Elections Officer, the Commission has resolved to terminate your contract of service with immediate effect. This in line with Clauses 15 and 16 of your contract of services. The grounds for termination include the fact that since the extension of your probationary period on 16" August 2005 you have not registered any improvement in your performance as Chief Elections Officer. The Commission is of the view that at the said hearing the following charges were specifically proven against you. a) You have willfully neglected to discharge your duties as evidenced by your failure to effectively deal with the incident concerning the Commission’s motor vehicle ZA8129. You will appreciate that this constitutes incompetence, Page 2 of 13 b) which is a ground for summary dismissal under your contract of service. Contrary to the law governing the Commission and your Contract of Service which place you under the Commissions direct control and supervision, you have insisted on _ the independence of the secretariat vis-a-vis the Commission. The Commission noted that even after you had received the letter inviting you to the said disciplinary hearing, which stipulated that you insist on the Independence of the secretariat vis-a-vis the Commission was one of the grounds for the disciplinary action you have given interviews to the press and even in you recent correspondence in which you seemed to be displaying such independence. You entered into a guarantee agreement with Loita Bank without the consent of the Commission in writing as is required by law. The Commission views this as part of your scheme to undermine its authority and insist on_ the independence of the secretariat. This is clearly an act of insubordination which is a ground for termination under your contract of service. You will no doubt agree that these are very grave offences that a person holding your position of Chief Elections Officer must not commit considering the lack of confidence and animosity that naturally result from their Commission. Hence, the Commission has no option but to terminate your contract of service with effect from the date hereof. You will be entitled to 3 months salary in lieu of notice and all other entitlements that you are allowed to enjoy under your said contract of service in the event of termination as is clearly the case in the present circumstances. Signed Justice A S E Msosa CHAIRPERSON Page 3 of 13 It was further deponed by the applicant that the disciplinary hearing referred to in exhibit “ADGM 2” appears to be a smokescreen because the Commissioners who attended the said disciplinary hearing had already resolved to get rid of the applicant by their previous meeting of 9" March, 2006 as is evidenced by a copy of the minutes of the said disciplinary hearing exhibited as “ADGM 3” dated 9" March, 2006 held in MPICO Board Room. The applicant therefore prays for an order of interlocutory injunction restraining the respondent from terminating the contract of employment made between the applicant and the respondent. In his affidavit in opposition to the application for an injunction, Reverend Emmanuel Chimkwita Phiri depones that he is a member of the Malawi Electoral Commission. | Reverend Chimkwita Phiri states that the Commission employed the applicant as the Chief Elections Officer in October, 2004 and that his employment was on a 6 month’s probation pursuant to clause 2 of his Employment Contract. The deponent further states that when the Commission reviewed the performance of the applicant during the probationary period, it was not satisfied with the same. It therefore decided to extend the same as per the letter of 16" august, 2005 exhibited herein as “MEC 1”. The said letter in inter alia in the following terms:- The Malawi Electoral Commission Development House Private Bag 113 BLANTYRE 16" August, 2005 Mr A D G Masanza C/O Malawi Electoral Commission Private Bag 113 BLANTYRE Dear Mr Masanza EXTENTION OF PROBATIONARY PERIOD The Commission has directed that your probationary period be extended to 21 October, 2005 on the following grounds: Page 4 of 13 1) Acts of Impartiality You have contravened Section 12(3)(4) of the Electoral Commission Act in that you on your own admission in your response to the management concerns you have consulted Senior Civil Servants without the Commission’s permission. As you know _ the Commission’s independence is guaranteed by section 76(4) of the Constitution as read with section 6 of the Electoral Commission Act 2) Mismanagement of Funds In furtherance of ground 1 above, you have used the commissioner’s funds without its written direction and in contravention of section 15(3) of the Electoral Commission Act 3) Poor Management Skills You have failed to hold meetings with senior management. You have introduced a management clique namely “David and I’ syndrome which is not conducive to team work and coordination of the operational functions of the commission 4) Insurbonation You have failed to implement the Commission’s decision with regard to the suspension of Mr Kazembe. You have made allegations that the Commission rigged the 2004 General Elections 5) Incompetence You have failed to guide the Commission about the Gazetting of vacancies in the National Assembly resulting in the Commission failing to prepare for Constituencies as required by law. We expect you to be interested in electoral issues. You will no doubt agree that at your level the Commission expects you to be exemplary and guide its operations Page 5 of 13 effectively, impartially fairly and independently. The Commission has therefore decided to extend your probation to 21“ October, 2005 when we will review your performance. Yours faithfully Signed COMMISSIONER M F KANJO For: MALAWI ELECTORAL COMMISSION The deponent further states that during the extension to his probationary period, the applicant still failed to impress the Commission. It is further stated that in one of the meetings of the Finance and Administration Committee of the Commission the issue of the applicant’s performance was discussed and all expressed dissatisfaction with the applicant’s performance. It was therefore decided to report the matter to the Commission with a recommendation for termination. The deponent further states that when the Commission received the recommendation, it decided to hear the applicant first before making a decision. Accordingly, on 10" May, 2006 the Commission invited the applicant to a disciplinary hearing as is evidenced by a letter of 10" May, 2006 exhibited hereto as “MEC 2”. The applicant responded in writing to the charges that were leveled against him in his letter dated 29" May, 2006 exhibited herein as exhibit “MEC 3”. Reverend Chimkwita Phiri further states that the applicant was heard by the full Commission before the decision to terminate his appointment was communicated to him. It is further averred that the applicant had failed to perform hence the decision to extend his probation and he continued to fail to improve. The deponent further contends that no one else, other than the Commission has the mandate to deal with the applicant’s employment and it was therefore important that the very Commission which had extended his probation heard him on his performance before terminating his employment. Reverend Chimkwita Phiri therefore contends that the termination of the applicant’s employment was therefore substantatively and procedurally fair. Further the deponent contends that the Commission could not keep the applicant in employment due to his inability to improve and therefore the Commission opposes the remedy of reinstatement that he is seeking. The deponent further argued that since this is an employment case, damages would be an adequate remedy to the applicant should he win the case and therefore an injunction ought not to issue. Page 6 of 13 The main issue for determination by this court is whether or not in the circumstances of this case an interlocutory injunction ought to issue the respondent herein from implementing its decision terminating the contract of employment with the applicant. The law in my view, is very clear as regards interlocutory injunctions. The usual purpose of an interlocutory injunction is to preserve the status quo of the parties until the rights of the parties have been determined in an action. See Order 29 Rule 1(2) of the Rules of the Supreme Court. As was stated by Tambala, J as he then was in the case of Mangulama and Fourt Others V Dematt_ Civil Cause Number 893 of 1999, that:- “An application for an interlocutory injunction is not an occasion for demonstrating that the parties are clearly wrong or have no credible evidence. The usual purpose of an order of interim injunction is to preserve the status quo of the parties until their rights have been determined”. It is now well settled that the principles governing the grant or refusal of an interlocutory injunction are those that were enunciated by Lord Diplock in what is generally accepted as landmark case on interlocutory injunctions namely American Cynamide Company V Ethicon Limited [1975] AC 393; [1975]1 AHER 505. The first principle is that the plaintiff must show that he has a good arguable claim to the right that he or she seeks to protect. Secondly, the court must not attempt to decide the claim on affidavits; it is enough if the plaintiff shows that there is a serious question to be tried. Thirdly, if the plaintiff satisfies these tests the grant or refusal of an injunction is for the exercise of this court’s discretion on a balance of convenience. The court must then consider whether damages would be a sufficient remedy, if so an injunction ought not be granted. In the American Cynamide Case (supra) the court held that there was no rule of law that the court was precluded from considering whether on a balance of convenience an interlocutory injunction should be granted unless the plaintiff succeeded in establishing a prima facie case, a probability that he would be successful at the trial of the action. The court should be satisfied that the claim was not frivolous or vexations i.e. that there is a serious question to be tried. In the case of Amina Daudi t/a Amis Interprises V Sucoma Civil Cause Number 3191 of 2003 Mwaungulu J, enumerated with approval the American Cynamide_case principles, which I hold is good law and the correct exposition of the law namely:- Page 7 of 13 1. A court will not grant an injunction unless there is matter to go for trial. 2. Once there is a matter to go for trial the court has to consider whether damages are an adequate remedy. The learned judge had this to say on page 4 his judgment: “First, a court will not grant an injunction unless there is a matter to go for trial. This obviously filters cases not deserving the equitable relief that by its nature prevents exercise of rights before a court finally determines a matter. Secondly, once there is a matter that should go for trial, the court had to consider whether damages are an adequate remedy. This consideration requires answers to two sequel questions. First from the perspective of the defendant, even if damages are an adequate remedy, the court will refuse the injunction if the plaintiff can not pay them... Second, from the perspective of the plaintiff, if damages are an adequate remedy and the defendant can pay them, the court will not refuse an injunction. The court may therefore allow the injunction where damages are an adequate remedy and the defendant can pay them”. It was contended by Mr Makhalira, for the applicant that the applicant who entered into a contract of employment with the respondent on 21“ October 2004 as Chief Electoral Officer for 5 years, had his employment terminated on the 2™ August, 2006, as is evidenced by exhibits “ADGM 1” and “ADGM 2”. It was Mr Makhalira’s argument that the disciplinary which is referred to in exhibit “ADGM 2” of the applicant’s affidavit was not genuine, in other words, that it was a _ short-screen because the commissioners who attended the said disciplinary hearing had, according to Counsel for the applicant, already resolved to get rid of the applicant in the previous meeting of March, 2006. The minutes of the said disciplinary meeting are contained in exhibit “ADGM 3”. Further Mr Makhalira submitted that the reason why the applicant brought the matter to court is not because of the contractual relationship which existed between the applicant and the respondent but the way the disciplinary hearing was conducted. Mr Makhalira argued that the respondent took it upon itself to try the applicant in his absence on 9" march, 2006 and merely brought the disciplinary hearings as a face saver or as a cover up. Counsel further submitted that the fact that the applicant was not heard on 9"" March, 2006, is the crux of the matter. Counsel submitted that the applicant is applying to have a judicial review of the tribunal or court like meeting. Counsel submitted that the right to certiorin, mandamus and pabibition are rights embedded in the Page 8 of 13 application for judicial review and that these are not private rights but public right, and that these rights to the applicant are no longer master — servant relationship. Counsel further argued that the applicant’s position, that of Chief Electoral Officer is a statutory one, which is provided for under the Electoral Commission Act. So his employment is not in any way to do with a private right. Mr Makhalira further submitted that once leave is granted then the court can issue an injunction since it then follows that the process followed is defective, so the injunction would then maintain the status quo. Mr Kapahale for the respondent on the other hand vehemently opposed the application and submitted that injunctions in judicial review proceedings are granted on the same principles like other ordinary matters. Further Mr Kaphale argued that there is simply no triable issue in this matter as this is purely a private law matter and not public. Mr Kaphale further submitted that the Electoral Commission Act stipulate that the Chief Elections Officer may be on a contract for a period of 5 years and that under Section 12(3) of the said Act only the Commissioners have the power to deal with the employment of the Chief Elections Officer and nobody else. Therefore Mr Kaphale submitted that there was nothing wrong in what the Commissioners did and pleaded the doctrine of necessity, in that where there is no alternative personnel the doctrine of necessity allows that person even though impartial to hear the matter. Under Order 53/1 — 14/26 an interlocutory injunction can be obtained in judicial review proceedings pending the determination of the substantive judicial review application, or if the urgency of the case justifies it, pending the hearing of the leave application. It is stated under that Order that the approach that a court in interlocutory injunctions in judicial review proceedings is similar to that adopted in applications under Order 29 or an interlocutory injunction in an ordinary action See_R_V_Kensington and Chelsea Royal London Borough Council _ex p. Hammell _[1982]QB 518; [1989]1AITER 1202 above. It therefore follows that the principles that the court will have to follow are the same ones that it usually considers when deciding whether to grant an injunction or not in the ordinary cases. It has been stated and there has not been any dispute that the applicant was on a Contract of Employment with the respondent as has been evidenced by exhibit “ADGM 1”. Further, it has been deponed and it has not been disputed that the applicant was employed on probation for 6 months, which Page 9 of 13 probation was according to exhibit “MEC 1” dated 16" August, 2006 extended to 21“ October, 2006. In the case of the applicant the contract of employment clearly stated that the applicant was employed by the respondent for period of 5 years in terms of Section 12(2) of the Electoral Commission Act No. 11 of 1998 as is evident from clause 1 and 2 of exhibit “ADGM 1”. The said clause provided as follows:- 1. POSITION The Commission agrees to employ and the employee agrees to be employed by the Commission as Chief Elections Officer with effect from 21* October, 2004 notwithstanding the date hereof subject to the terms of this Agreement. 2. TERMS OF EMPLOYMENT The contract shall be for a period of five years in terms of Section 12(2) of the Electoral Commission Act. No. 11 of 1998 but subject to the successful completion of a 6 months probationary with respect to termination stipulated herein (clause 15 and 16). Clauses 15 and 16 of the Contract of Employment provided for termination of the contract and summary dismissal respectively. On termination either party to the agreement could terminate the contract by giving three month’s notice to the other party or in lieu thereof three month’s salary. And on summary dismissal the commission reserved the right to terminate the contract before the expiry period in the event of breach of the agreement, misconduct willful neglect to discharge duties, bankruptcy insanity, conviction for any criminal offence, negligence in performance of duties or incapacitation etc. Some of these grounds like neglecting to discharge duties, and negligence in performing his duties are mentioned in exhibit “ADGM 2”. Under paragraph 53/14/33 of Order 53 of the Rules of the Supreme Court, it is stated therein that a claim in connection with the dismissal of an employee employment with a public authority, where the conditions are governed by a statutory instrument are nevertheless, a matter for private not public law hence not amenable to judicial review. In R V East Barkshire ex p Walsh [1985] 1QB 152 (CA) p 165 Sir John Donaldson stated “The ordinary employer is free to act in breach of his contracts of employment and if he does so his employer will acquire certain private law rights and remedies in Page 10 of 13 damages for wrongful dismissal compensation for unfair dismissal... Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee “public law” rights and a t least making him a potential for administrative law remedies. Alternatively it can require the authority to contract with its employees on specified terms with a view to the employee acquiring “private law” rights of employment... If however the authority gives the employee the required contractual protection, a breach of that contract is not a matter of “public law” and gives rise to no administrative law remedies”. See also the case of Richard Willard Chikoja V Southern Region Water Board Misc Civil Cause Number 47/2003 Section 12 of the Electoral Commission Act provides inter alia: 12(1) The Commission shall appoint a suitably qualified person to be Chief Elections Officer upon such written terms and conditions as the Commission may in its discretion determine. (2) The Chief Electoral Officer shall hold office for a period of five years and shall be eligible to be re — appointed as the Chief Elections Officer for a further period of 5 years. Clearly in my most considered view therefore, this is a matter of employment as shown by the case of Richard Willard Chikoja V Southern Region Water Board. In the Chikoja Case (supra) Chimasula — Phiri J, at page 5 stated. “There has been the thorny issue whether this is a matter for judicial review or not Mr Dokali says this is a private law issue. I referred Mr Kaliwo to the provisions of order 53 of the Rules of the Supreme Court particularly note number 53/1 — 14/15 at page 858 of 1995 edition. It is stated that a claim in connection with dismissal of an employee from an employment with a public authority, where the conditions of employment are governed by a statutory instrument is nevertheless a matter of private not public law. The learned judge continued to say: Page 11 of 13 In the present case the position is not very different despite one’s ingenuity of quoting Constitutional rights. If courts permitted this development there would be no need to have Industrial Relations Courts and ordinary courts for labour disputes. | Everyone would claim judicial review of employer’s decision. I therefore share the same view. As to the argument that the Commissioners who presided over the disciplinary hearing were biased, the law is such that where there is only one available adjudicator provided by statute he may by virtue of doctrine of necessity sit to decide the matter notwithstanding any such disqualifying factors as bia.(emphasis mine). In Halisbury’s Laws of England 4" Edition Vol. 1 at paragraph 73 the authors state that if all members of the only tribunal competent to determine a matter are subject to disqualification, they may be authorized and obliged to hear and determine the matter by virtue of the common law doctrine of necessity. See Wilkinson V_Barking Corporation [1948] 1 AITER 564. The Constitutional Court in its opinion in Constitutional Cause Number 13 of 2005 their Lordships Nyirenda, Chimasula — Phiri and Mzikamanda at page 13 of their opinion stated: “There a few exceptions to the concept of natural justice. The first exception is a common law doctrine of necessity. This exceptions displaces the normal rules against bias in circumstances where the individual whose impartiality is called into question is the only person empowered to act... In those circumstances this rule of natural justice then has to give way to necessity, for, otherwise there may be no means of deciding or determining a matter and the machinery of justice or administration will break down.”. See also Charte V Kennington (1730)2Str 1173. It is clear therefore in my considered opinion that the commissioners (commission) being the only body to act in the circumstances that their decision could not be vitiated on the grounds of bias, and so I do find. In these circumstances, it does not appear that the applicant has established that he has a good arguable claim. Certainly, the applicant in my view has failed to demonstrate that he has a good arguable claim to the right he seeks to protect. Page 12 of 13 Furthermore, even if the applicant were to argue that he has demonstrated that he has a good arguable case which he has not, certainly I am of the informed opinion that damages would be an adequate remedy for the applicant. In these circumstances and on this footing I wish to distinguish the case of Brown Mpinganjira and Others V attorney General Misc Civil cause Number 340 of 2001, in that, that case the court granted an injunction because the court considered that damages would not be an adequate remedy. In the instant case damages would as I have just found be adequate, and the respondent would be able to pay him In these circumstances, and by reason of the foregoing, I decline to grant an order of interlocutory injunction. Accordingly, the applicant’s application is dismissed. I make no order as to costs. Pronounced in Chambers this 30" day of October, 2006 at Blantyre. Joselph S Manyungwa UDGE Page 13 of 13