Carlsberg Malawi Limited v Mpira (Civil Appeal 8 of 2018) [2020] MWHCCiv 51 (11 March 2020)

Le seats REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL APPEAL NO. 08 OF 2018 (Being IRC matter NO. 30 of 2013 IL. R. C - Mzuzu) BETWEEN CARLSBERG MALAWI LIMITED........cccssesereerserreeennnercrsersceeeeeenenceeees APPLICANT -AND- ROSE MPIRA.....ccccceececeeeeceecesenensosuerenseranessnssssaeraraaccsassescscsen eases sees RESPONDENT CORAM: HONOURABLE JUSTICE T. R. LIGOWE W. MWAFULILWA & L. MBULO, COUNSEL FOR THE CLAIMANT C. GHAMBI & C. MANDALA, COUNSEL FOR THE DEFENDANT MOSES M. G. CHAPUTULA, COURT CLERK MRS. R. LUHANGA, COURT REPORTER Ligowe J. RULING 1. The judgment appealed from was made on 31% May, 2018. The next document on the record of appeal from the Industrial Relations Court is a notice of appeal filed on 2™ July, 2018. The fact that there is the notice of appeal on the record of 1 proceedings in the Industrial Relations Court shows that the notice was indeed filed in the Industrial Relations Court as required by Order 33 of the Subordinate Court Rules. There is even a stamp on the notice of appeal that fees were paid to the Industrial Relations Court. What may be confusing to Counsel for the respondent, is that the notice filed in the Industrial Relations Court reads “in The High Court of Malawi. Mzuzu Registry, Civil Appeal No...... of 2018 as though the notice was taken out in the High Court. A notice of appeal taken out under order 33 of the Subordinate Courts Rules is according to rule 2 (2) supposed to be in form 27. Form 27 has to have a heading which was not specifically provided. This being a notice in the Subordinate Court, the heading should actually be the same heading that appears in the originating process for the case. The heading was deliberately omitted in form 27 because form 1| already provides for what the heading should be. Form 1 provides for the general heading and title of a case commenced in Subordinate Court as:- General Heading and Title o.11,r.3 In the Resident Magistrate’s (1) Court at .........:eeeeeee eter eter e tees 2) menses eocoame eon tome won Grade Subordinate (1) | Seas peer tes eee oe (3) No. ...e.eeeeeeee (4) of Sane eaxmasenl4) Plaintiff (1) een or (5) Applicant Defendant (1) ne (6) Respondent Notes (1) As may be applicable. (2) Name of place. (3) Nature of proceedings (e.g., Action, Civil Application, eke): (4) Complete in pending proceedings: otherwise leave blank, for completion by the Court. (5) Name. If under disability, give particulars of representation (e.g. A. B., an infant, by C. D., his next friends). (6) Name. If under disability, and representation has been ordered, give particulars e.g. A. B., an infant, By C. D., his guardian ad litem). The general heading proceeds so state: If the proceedings are not inter partes, OMIt “Betweet.. se. cecescreceeenerneeeees ori BEPECL arose sceon SENS » and head “In the matter Of ............+-2seeeeeeee ees e.t.c Then it goes on the say. “Every document filed in Court and every notice served in any proceedings must bear a heading and title in this form with such variations only as the Court may permit.” With this in mind, it is wrong for the notice of appeal filed in the Industrial Relations Court to have a heading as though it were a High Court case. I have seen many notices of appeal in my time on the bench carrying this mistake. Having followed the rule and the forms as provided, there should not be such mistakes made. After the notice of appeal is filed, the process is very clear as provided under Order 33 of the Subordinate Court Rules as to how the record of appeal will find its way into the High Court and be given a date of hearing. In this case the error of entitling a notice of appeal filed in the Subordinate Court as it were in the High Court, | think can be cured by the fact that it was actually filed in the Industrial Relations Court and not the High Court. Having so cured it, | hold that the notice was perfectly filed in the Subordinate Court as required by the rules. As to the time of filing, Order 33 of the Subordinate Courts Rules provides for 14 days, while the Labour Relations Act in relation to the Industrial Relations Court provides for 30 days in section 65 (2). That is a specific provision for the Industrial Relations Court which should take precedence over the provision in the Subordinate Courts Rules. { therefore for this reason also hold that the notice of appeal was filed in time. The respondent’s preliminary objections are overruled. Made this 11'° day of March, 2020