Chibuku Products Limited v Miller (Misc. Civil Cause 50 of 2017) [2017] MWHC 111 (22 May 2017)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MISCELLANEOUS CIVIL CAUSE NUMBER 50 OF 2017 BETWEEN: CHIBUKU PRODUCTS LIMITED APPLICANT AND JOHN MILLER RESPONDENT CORAM: THE HONOURABLE JUSTICE JOSEPH CHIGONA MR BRIGHT THEU, COUNSEL FOR THE APPLICANT MR BRUNO MATUMBI, COUNSEL FOR THE DEFENDANT MR KAMCHIPUTU, OFFICIAL COURT INTERPRETER CHIGONA, J. ORDER Before me is the applicant's pending appeal that Relations counsel that counsel adopted both the affidavit application was made by the Chairperson is supported of the Industrial by an affidavit sworn by Suffice Court. The application in support and skeletal for stay of costs order and skeletal arguments. applicant to mention for the Upon perusal Initially, for the respondent relied on his affidavit that the same be brought summons for stay, this application was made exparte. documents, I ordered During the hearing of the interpartes arguments. of the supporting interpartes. counseI he adopted. Let me also mention that before the hearing of the application objection counsel for the applicant. preliminary from the affidavit settled. of Bruno Matumbi that was brought by and the preliminary objection agreed to remove certain At the end of the hearing on that to the affidavit objection, in opposition the parties issues was therefore which for stay, both counsel addressed me on the preliminary FACTS OF THE CASE Relation remedies dismissal. s Court (IRC) claiming commenced proceedings by Rule 13 0f the IRC Rules of Procedure. Counsel exhibited Facts of the case are that the respondent for what he in the Industrial conference It is said that a pre-hearing called constructive was held on 17th November 2016. It is stated that the parties did not agree, sign and file minutes of the pre-hearing required a bundle of copies of correspondences evidencing filed what they considered is said that unclear conference, no response came from the registrar. correspondences to the registrar lack of agreement, marked as BMT 1. Each party then It but seeking Counsel exhibited copies of the the applicant wrote the registrar as to what constituted of the pre-hearing between the parties conference. direction conference as minutes marked as BMT 2. minutes of the pre-hearing scheduled for trial whereupon many The matter was subsequently issues arose as contained in the affidavit was the delay to commence proceedings by the court itself. 3pm, the Chairperson sought views from the parties proceed, bearing in mind that he was supposed to deliver a in support. One of the issues on that day occasioned that when the court convened at It is submitted on how to ,, explained to the parties raised a preliminary objection Court on the same day and time. In The objection was that the matter was not ready for for stay is that the applicant trial. judgment at the Magistrate fact, the Chairperson that he delayed because he was working on his judgment to be translated into Portuguese. However, the issue forming subject matter of the present application concerning trial in the absence of pre-hearing minutes which were supposed to in terms of Rule 13 of the be drawn up, signed and filed by the parties to the court that each IRC's Rules of Procedure. party had filed what they perceived as minutes of the pre-hearing conference. agreed and signed pre-hearing conference there was no proper pre-hearing necessary to conduct another pre-hearing conference multiple indicated to the court that though he was appointed three days before the appointed if the court will not uphold the objection . Counsel addressed the court that in the absence of that issues before the case could proceed to trial. Counsel he was ready to proceed with trial Counsel highlighted and that it might be date for trial, he thought conference minutes, to address conference. on the objection, the court The court concluded. that it was It is stated that after hearing both parties perused the file and came across short hand notes of the pre­ hearing conference as recorded by the registrar who conducted the . pre-hearing disrespectful to contend that no proper pre-hearing took place when the registrar's notes on the court file showed that a conference had been conducted and the registrar proceeding to trial as constrictive objection subsequently, for trial and ordered the respondent noting that the same was a wastage of time to immediately pay costs of the the trial sine die. Counsel for day's attendance the applicant therefore sought leave to appeal against the cost order and for stay of the same. The court granted leave to appeal but declined to stay the cost order. Counsel for the applicant stated dismissal. The court dismissed the before adjourning noted the issue conference to except in clearly stipulated a costs' order under the Labour Relations that the ground for the appeal is that the court ( IRC) is prohibited award or make circumstances . had been made that the objection fell within those circumstances Basically, it is the order for costs that was made by the court that prompted the applicant pending substantive appeal. Counsel for the applicant stated that the applicant show ( a notice of appeal). to file the present application has lodged the appeal against Act for which no finding the order as BMT 3 will for stay THE APPLICANT'S CASE hearing. The applicant contends that the grant of stay of arguments and the oral submissions case can be extracted from made during the Suffice to mention that the applicant's the skeletal interpartes an order pending appeal is a matter for the discretion of the court and he cited the case of Mulli Brothers Counsel submitted that the discretion justice taking into account two competing considerations that the court does not make it the practice fruits appeal is not rendered nugatory have been complied with or enforced and it is not possible to reverse considerations, the court considers the prospects including He also submitted that in exercising es of the case Ltd V Malawi Savings Bank1• on the interests of a litigant and that a court will ensure that a successful if the order appealed against will of success of the appeal. all the circumstanc the situation. of depriving o.f litigation is exercised the above namely that the appeal against the cost order has strong He submitted prospects of success. He said in making the order the court acted against the prohibition to make such an order. He diametrically to make a costs order except in stated that the court is prohibited limited as: failure to stipulated attend a conciliation meeting or where the matter involved is circumstances which are clearly 1 MSCA, Civil Appeal N0.48 of 2014. He submitted and vexatious. frivolous not arise herein. court did not make any finding ·frivolous and vexatious does that the first exception that the was On the second ground, counsel submitted as to warrant an order for costs. that the preliminary objection that the trial did not take Counsel for the applicant also submitted place because of the objection but rather because the Chairperson was rushing to deliver e Court. He states that a ruling at the Magistrat it was apparent from the outset before the court was in session that the trial was ill-fated on that particular sought the parties' engagements at the Magistrate Court. He submits that in the the costs order against the applicant offends any premises, of justice, conception having been put to expense in turning other engagements. Counsel submits therefore every prospect views on the way forward in view of his up for trial by the court's own the trial having failed and the applicant that the appeal has of success. day as the Chairperson is now resident in South that the respondent there is He states that since he quit his job with the applicant, about his means nor whether he is now in any gainful Counsel also submitted Africa. no information employment or running a business. information would not be recovered if it is paid to him and later the appeal succeeds. in the circumstances. on his means renders it more likely that the money that the appeal would end up being nugatory He submitted that lack of He submits THE RESPONDENT'S CASE Again, the respondent's opposition The respondent make an order for costs as per Section 72 (2) of the Labour Relations Act. He submitted case is well stated in the affidavit in hearing. made during the interpartes to and oral submissions submitted that there is no express prohibition that the lower court has jurisdiction on the part of was frivolous and vexatious, by the applicant that the appeal will not be rendered under the law. On whether the that the thereby appeal will be rendered counsel submitted by mere payment of costs. He said that the applicant has has no means. Counsel is not only source of income as one may the court not to make any order as to costs. He submitted objection falling ·nugatory, nugatory to show evidence that the respondent submitted that employment have other sources such as inheritance. hence he has respondent shown that he has means. Counsel reminded the court that a successful fruits of litigation, therefore like the respondent, should not be deprived of his by an application travelled to Malawi to attend to the trial, applied for dismissal of the application. for stay pending appeal. He Counsel submitted litigant, that the submitted He submitted that the appeal has a counsel submitted that the is now 'resident outside Malawi and without any gainful that nobody including In reply, counsel for the applicant chance of success as admitted by the respondent counsel who put the chances of success at 50 percent. Counsel submits that the lower court is prohibited from making an order for costs. On the appeal being rendered nugatory, respondent employment. his other sources of income. Basing on these arguments, counsel that once the order for costs is complied ". Vith, he is of the concluded view that the money will not be refunded once the considered appeal is successful. that if the respondent has Counsel submitted the means, he could have said so. Counsel submitted that the travel to Malawi and payment of legal fees is not respondent's enough evidence that the respondent Counsel. be sponsored. pending an appeal. has the means as these may prayed to this court to grant a stay his counsel knows therefore THE LAW The law on stay of execution in many local cases. The gen ·should his litigation pronounced • Assembly, in anticipation in Annot Lyle2 In the case of Speaker not make it a practice Ex-parte to deprive a successful of the outcome of the appeal as litigant fruits of of the National pending appeal has been well settled ourt of law eral principle is that a c v Hon. John Tembo3, the following principles were laid down: and over the years clear principles pending of judgment have emerged. "Stay of execution appeal has become common place in our courts for consideration principles however That Order cites a rules of the Supreme Court. with stay dealing number of cases specifically of execution Some of the cases have been referred from whiczh the following resonate: are in Order 53 r. 13/1 of the of judgments. to by counsel cardinal in this matter The guiding principles i. The court does not make the practice depriving judgment. of of . his fruits a successful litigant ii. The court should are special favour of granting onus will such special circumstances which then consider whether there in militate the order of stay and the to prove or show be on the applicant circumstances. 2 ( 1886) 11 PD 114 MSCA, Civil Appeal Number 27 of 2010 (unreported) The court would likely appeal would otherwise or the appellant not be compensated in damages. grant stay where the be rendered nugatory would suffer loss which would be granted where the appellant practice iv. Where the appeal is against an award of damages the established will normally satisfies paid, then there will be no reasonable of recovering succeeding". the court that if the damages were them in the event of the appeal is that stay prospect In the case of Mike Appel& Gatto Limited commenting on these principles, V Saulos Chilima as follows: the court observed 4, has brought forward in is what is "Once an applicant solid grounds for seeking stay, the court is then called upon to weigh the risks inherent a stay and the risks inherent in granting stay. This balancing process refusing here referred to discretion. as the court's Much as the court will start from the premise that courts will not make the practice .of depriving judgment and much as the mere filing of an appeal and probability qualify be concerned rendered the court weighs these considerations what they translate while a court will about the appeal not being it is about how and case". as stay of execution; to in the particular of success will not successful ultimately litigants nugatory, of their fruits [2014] MLR 231 at 238. See also Act, 2010, [2012] MLR 138. Services, of Financial In re: Citizen Insurance Company Limited and the Registrar In the case of The Minister of Finance and the Secretary to the Treasury V Hon. Bazuka Mhango MP and Otherss, the court had the following to say on principles applications governing of this nature: without prospects a good reason The justness of these principles litigant of his litigation the only good reason to to the court that is that of the may not be deprived "My understanding successful fruits and that normally do so is when it appears there are not reasonable of in the event that the recovering the money appeal succeeds. of this is in the fact that while it is the duty of the court to see to it that the successful access the possible, that it does not come about that a successful appeal is (not) rendered order for the court to be able to determine whether be nugatory reasonable getting which must be presented assessment." should as of his litigation as quickly duty to ensure the money back is a matter of fact's or not an appeal, if by reason that there is no of the appellant it is also the court's probability successful And in nugatory. to the court for litigant fruits would The above, in a nutshell, stay of a judgment governing or order pending appeal. is what has been stated to be the law MSCA Appeal Case No 17 of 2009 ANALYSIS OF THE EVIDENCE principle fruits of his litigation. as stated above is that courts will not deprive a The cardinal successful litigant see to it that once an appeal has been lodged, w the appellant, stated that the court has to use its discretion not depending by the applicant. that appeal should not be rendered nugatory. It is whether to grant a stay or At the same time, courts will ight to hich is a r on special circumstances that have been advanced at once the order for costs nugatory to refund the same. Counsel submitted In the present case, the applicant states that the appeal has a greater chance of success as the lower court has no jurisdiction to make an order for costs in total disregard of the law. Counsel for the applicant also submitted tha t he is fearing th the appeal will be rendered is complied, for the respondent respondent is a person of no means as of now as his known employment with the applicant that nobody know his sources of income as he is now back to his home country, that the applicant means. Counsel for the respondent managed to attend the trial and paid legal fees, a sign that he has mea·ns and that the appeal will is of no has failed to show that the respondent not be rendered nugatory. The respondent, South�Africa. was terminated. submitted He also submrtted in response, submitted as it will be difficult that the that the respondent considered what the law says on this issue as outlined the submissions of both I have to state that I am grateful to both counsel for I have seriously above, and have taken into consideration counsel herein. their submissions. the circumstances the applicant, has no any sources of income after his termination the employment view that I am of the considered as it is now, it is difficult to decipher that the respondent has other sources of income in South Afric of the present case, the respondent, I agree, with Having said that, I am of the considered with the applicant. a where he is view that in of to a stay order be granted staying. I am of the view that in these circumstances, the cost order made by the lower court. I have warned myself not to deprive the respondent currently avoid rendering the appeal nugatory, against of the general principle his litigation. I am also mindful of the prin appeal that has greater chances of success does not automatically mean that a stay be granted. I am inclined taking into consideration all matters regarding how the order was granted so made by the lower court, it is fair and just that a stay be that both parties are heard on the correct of the law as interpretation contained in Section 72 ( l) and (2) of the Labour Relations Act. I therefore grant a stay of the costs' order pending the appeal be expedited. herein fruits ed above that an to believe and I hold that ciple as outlin appeal. I order that of Costs are in the discretion party should bear its own costs. of the court. I therefore order that each MADE IN CHAMBERS THIS 22ND DAY OF MAY 2017 AT BLANTYRE REPUBLIC OF MALAWI. IN THE JOSE JUDGE. 11