Issa v We Effect (Civil Cause 52 of 2016) [2017] MWHC 102 (22 May 2017)

IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 52 OF 2016 BETWEEN: AWALIISSA AND WE EFFECT Coram: JUSTICE M. A. TEMBO, PLAINTIFF DEFENDANT Chayekha, Counsel for the Plaintiff Chakachadza, Counsel for the Defendant Chanonga, Official Court Interpreter ORDER This is this court's dismissed for being commenced in this Court wrongly. order on the defendant's application action that the plaintiffs be The plaintiffs termination The plaintiff made publicly claim is for re-instatement following on him by the defendant for defamation the time of his termination. that was effected also claims by the defendant at what he claims following damages who is his former employer. defamatory allegations was an unfair The defendant Industrial in this Court. argued that the plaintiff have commenced his action should irregular in the this matter Relations Court and that it was for him to commence ·Registered In support of i referred to the case of Mungoni v T ts claim, the defendant of Malawi Traders Trustees of Development the action ( unreported) 686 of 2001 (High Court) Court dismissed unlimited matters Industrial jurisdiction as provided considering that there is a specialized Court, Relations under section properly that should holding where a labour dispute he Trust civil cause number was in issue and the that the High Court should not assume its in such the namely, 108 (1) of the Constitution court, subordinate such jurisdiction. exercise to the instant made by this Court, objected The plaintiff correctly the decision, Development of Malawi Traders this Court since it is a matter involving employment as well as defamation. Trust, He argued application. that whilst he recognized he had properly in Mungoni v The Registered this action before of mixed claims of unfair termination brought Trustees of The plaintiff between actions. the claims added that splitting this Court and the Industrial of unfair termination and defamation in duplication of Relations Court will result In reply, should ,argued be dismissed to leave the defamation the defendant matter. that in that case only the unfair termination claim This Court agrees Registered this matter termination with the plaintiff Trustees of Development given that this matter as opposed to a single that the decision of Malawi Traders Trust is. not applicable in the case of Mungoni v The to involved claim of unfair termination. a mixed claim of defamation and unfair This Court had occasion the case of Kanyemba that J stated Mkandawire to consider one in a mixed claim case such as the instant v Dzinyemba tla Tirza Enterprizes [2005] MLR 146 where I would advocate to adjudicate approach, to the Industrial is best placed pursuant As a general be transferred instance to section for appeals throw in a word of caution. High Court to the Industrial There should case basis. to avoid injustice guidelines- to the parties. that labour related cases should certainly Relations Court. This Court as a Court of first over them. The High 65(2) of the Labour Relations be spared Act. Let me however Court should The transferring Relations be guidelines matters of Labour related Court should be approached Court should which the High I would therefore herein follow in order under list some of these on a case by from the (1)The Nature of the claim before the Court. issues beyond the jurisdiction of the Industrial Court? Relations other Is the claim comprising (2) Would the separation parties? of these claims not occasion injustice to any of the (3)At what stage of the trial is the application made? for transfer ( 4) How much time has elapsed between date the application the case is made? to transfer the date of filing of the claim to the These are a few of the guidelines to attain uniformity in approach. which may be of help to the High Court if we are Having said that, let me look at the facts of this application. of unlawful for defamation other special is also claiming dismissal, the plaintiff damages. Apart from the claim of character and statement of claim attached on the claim of unlawful the plaintiff has deliberately I am aware however of summons, The plaintiff claim of defamation claim, that the case has not yet been set down for hearing to the IRC, very little shall be lost. I also observe too much time lost. that from the detailed relying is basically drafted the statement is a core claim yet it is not. Therefore, related issue. at this Court. on the case file that there is not of claim in such a way as if the of the on the nature I have also taken into account I find that this is a purely labour to the writ dismissal. If it is transferred pointed This Court does not agree that each case must be considered matters out for consideration Tirza Enterprizes. forc�d to end up forming a very low opinion the whole matter and to transfer for damages is that the claim of the claim for damages Relations of the proposition to the Industrial for defamation The result Court. by the Court in Kanyemba v Dzinyemba t/a in Kanyemba is that the Court was for defamation The problem there in view of the several might as well have been a viable one. that, would rather that, it is time, that all labour-related This Court by the Industrial Relations Court. So, unfair termination is dealt with by the Industrial of section original instance. appellate matters for compensation for in the spirit and provided with and labour-related at first on appeal and afford the The High Court will deal with such matters ladder. Relations is specifically 110 (2) of the Constitution, the plaintiffs claim to deal with all employment jurisdiction Court which, are dealt with created matters claims, If there are jurisdiction of the Industrial case in the present the High Court. arising out of the same facts, which are not within the matter, the plaintiff Relations Court, such as defamation claims as is the must commence the action on such claims in This Court is of the view that it cannot be said that there will be duplication prejudice to a plaintiff in such matters Relations Court the procedure with the aimed at dealing employment informal and ideally and economy. is deliberately with dispatch given that in the Industrial matters or The notorious organization of the Industrial or otherwise, that the Industrial fact that there have previously been or there are problems with the Relations Court, in terms of unavaila bility of panelists should not be used as an excuse for letting the High Court do the work Court is supposed to do at first instance. Relations The plaintiffs defamation days to reflect this aspect. , action shall therefore proceed in this Court in so far as it relates to the seven amended within claim. The writ of summons must accordingly be The claim for compensation Court. Industrial Relations for unfair termination shall be transferred to the Costs.on this application are for the defendant. Made in chambers at Blantyre this 22nd May 2017. JUDGE 4