Chiviya v AG & Anor. (Civil Cause 204 of 2021) [2022] MWHCCiv 24 (23 March 2022)

Esther Chiviya v. Attorney General & Mukuru Money Transfer Kenyatta Nyirenda, J. : a JUDICIARY IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY (CIVIL DIVISION) CIVIL CAUSE NO 204 OF 2021 BETWEEN AND ESTHER CHIVIYA THE ATTORNEY GENERAL MUKURU MONEY TRANSFER CLAIMANT 48° DEFENDANT DEFENDANT CORAM: . THE HONOURABLE JUSTICE KENYATTA NYTRENDA. Claimant, appeared in person Mr, Chikwakwa, Counsel for the 2" Defendant Mr. Henry Kachingwe, Court Clerk RULING Kenyatta Nyirenda, J. ruling on an application by the Claimant for summary judgement. The This is my. application is brought under Order 12, 1.23; of the Court (High Court) (Civil Procedure) Rules [Hereinafter referred to as CPR" The action herein was commenced.by the Claimant by a specially endorsed writ of summons issued on 17'* December 2020. Her claim against the 1* Defendant is for damages for false imprisonment.and loss of employment, She. also claims damages against the 2m Defendant for unfair termination of employment. : On 6" May 2021, the Claimant filed with the Court an. application for default judgement against the 15' Defendant on the ground that the 15 Defendant had filed neither a defence nor a response. The application was granted by the Assistant Registrar on 7" May 2021. The Court notes that the Claimant has taken no follow- up steps to obtain a forimal order and have it, executed against the Defendant. Esther Chiviya v. Attorney General & Mukuru Money Transfer Kenyatta Nyirenda, J. On 28" April 2021, the 2°4 Defendant filed the following Defence : The second defendant refers to paragraphs 24 to 40 of ihe statement of case and contends that the claim against-the secand defendant is purely a labour matter. The appropriate foruin to determine the claimant's claim against the second defendant is the Industrial Relations Court. 2. 4. 8. 9. -10. . The second defendant repeats paragraph -1 above.andwill move the court to dismiss the claimants claim against the second defendant for-being wvfiled in a wrongforum. the second defendant will move the court to transfer the claimant's Alternatively, .claim against the second defendant to the Industrial Relations Court, The second defendant refers to the claimant's statement ofcase and contends that It is not a concise statement the statement of case has not been properly drafted. It contains or refers to evidence that is intended to be relied on by the of the case. claimant in support ofher case. The second defendant will move the Court for an order directing that Claimant gets legal aid assistance to draft the statement ofcase ina manner that conforms with the rules O pi 'ocedure. the secorid defendant denies Notwithstanding paragraphs I, 2 and 3 above; paragraph 24 of the statement of case. in that the contract of employment was lawfully terminated. The second defendant summarily dismissed the claimant and in that case, there was no obligation pay her in lieu ofnotice or provide her a notice oftermination of the contract of employment. In or about 2" August 201 9, the second defendant received a report that one of ts The robbers had gotten away with branches located at Mzimba was robbed. K14,373,314.00 which was left in office drawers by the claimant and her office instead of being locked in a cash yault as was provided in the second mate, defendant' 3 standard operating procedures. The second defendant internally inveostigated the robbery. The claimant was one of Thehe findings of the investigations the people questioned during the investigations. necessitated the calling ofthe claimant to a disciplinary hearing. The claimant was calledfor a disciplinary hearing on or about 22"4 November 2019 and consequently summarily dismissed upon being.found guilty of misconducts. The,claimant was found guilty ofgross negligencé and unauthorized absence from work. : The second. defendant Tost the sum of K14,373,314. 00 due to claimant's gross negligence. The second defendant was i} WMSfustifed in summarily dismissing the claimant. The action should be dismissed with costs. COUNTERCLAIM the Courts entertains the claimant's claim against the second in the event defendant, the second defendant repeats 5 to 8 above and contends that due to the in thai she failed-to adhere to standard operating claimant's gross negligence, procedures by leaving cash in the office drawers instead ofcash vault, the second defendant lost the sum ofK14,373,314.00. Esther Chiviya v. Attorney General & Mukuru Money Transfer Kenyatta Nyirenda, J. dl. The second defendant claimsfrom claimant the sum ofK14,373,314.00 plus interest at commercial bank lending rate from 2" August 2019to date ofpayment by the claimant. 12. The claimant alsso claints costs of the counterclaim. The application for summary judgement is supported by a statement sworn by the Claimant herself wherein she deposes as follows "7. 2. 3. 4. 5. my knowledge as a former THAT iam self-represented in this action THAT the matters offact I depone to herein are fo employee ofMukuru Money Transfer (MMT). THAT I commenced the proceedings by way of Writ of Summons against the Attorney General being the I Defendant for. false. d loss of employment among other claims stated in the Statement of Claim and Mukuru Money Transfer Limited being and Defendantfor unfair termination ofemployment or unfair dismissal among other claims stated in the Statement of Claim. THAT on 28" day ofApril, 2021 the 2" Defendant served a defence which in strict sense is of general denial. The. second Defendant's defence is a mere sham calculated to delay the course ofjustice. Now shown to me is a copy of the said defence unmarked but dated 28" April, 2021. . HAT in the circumstances it would only bé fair justice that a summary judgement beentered against the Second Defendant. d in the interest of d just, The 2" Defendant is opposed to the to the application.and there is a sworn statement to that end made by Counsel Lawrence J obn Kapinda wherein he states as follows: THAT'I have read the claimant ssworn statement in support ofthe applicationfor Judgment and respond to it as do hereunder. Documentsfiled and exchanged by the parties Z4771777O7S The action is THAT the claimant commenced the within action througl7 against two defendants, namely, the Attorney General and Mukuru Money Transfer [now produce and exhibit a copy ofthe claimant's summons and statement Limited. of claim which is marked LI7 thgt the action is essentially THAT it clear fromq the claimant's statement of Avo causes of action. One cause of action is.against only the first defendant, the th s. consists of claims for damages and loss due to false . Attorney General, aitd imprisonment, defamation, loss of dignity and-mental distress. The other cause of action is against only the second defendant, Mukuru Money Transfer Limited, and this consists of claims for compensation of unfair dismissal, payment for annual leave days, notice pay, and back pay. Esther Chiviya v. Attorney General & Mukuru Money Transfer Kenyatta Nyirenda, J. 8. THAT the second defendant filed a defence protesting to the claim and a counter claim. now produce and exhibit a copy ofthe second defendant s defence marked LK. : : THAT upon receipt of the second defendants defence and counter claim, the claimantfiled a document titled "statement ofclaim against the second defendant which was an abridged version of the initial statement of claim that was filed by the claimant. I now produce d exhibit a copy of this décument marked LK3. ° 10. il, 12. of claim was accompanied by a THAT the abridged version of the statement document that appears to be a defence to the'second defendants counter claim. The document started with paragraph 6 and there was no heading to it. It was also accompanied by the claimant's sworn statement in support of the claimant's defence to second defendant's counterclaim. I now' produce and exhibit the and-the sworn statement in support of claimant's "defence to. counterclaiwn claimant's defence to counterclaim which are marked LK4. THAT both parties filed and served on each other statement of issues for the purposes of mediation. To the surprise of the second defendant, the second was served with a filed objection to mediation purportedly made under Order 13 rule (2) (). The claimant did not specify the procedure rules that providedfor the said the obiection to Order 13-rule (2) (6). mediation marked LKS. d exhibit a produce py Particulars of second defendant's defence THAT I refer to paragraph'4 of the claimant's sworn statement in support of the application for summary judgment and state that the second defendant's defence, which is exhibit marked LK2, is not a general denial as alleged by the claimant. It is neither sham nor intended to delay the wheels ofjustice. -13, THAT the second defendant raised the. following issues in their defence: -13.1 13.2 Foruin conveniens he second defendant pointed out that the cause of action against the second defendant is purely a labour matter, as such, the appropriate forum fo handle the claimant's claims against the second defendant was the Industrial Relations Court. I refer paragraphs I and 2 of the second defendant's defence. The second defendant further stated its intention to have the cause ofaction against the second defendant transferred to the Industrial Relations Court or be dismissed for the High Court is not the appropriate forum to deal with the claim against the second defendant. Esther Chiviya v. Attorney General & Mukuru Money Transfer enyatta Nyirenda, J. Inappropriate drafting of the ¢ case The second. defendant pointed out that the claimant S statement of case contained evidence that the claimant intendedto rely in support ofher case. The second. defendant further pointed out:that the claimant's statement of case was not concise. I refer to pai agraph 3 of the second defendants defence. : 13.4 The second defendant stated its intention to move the Court to order that the cldimant gets legal cid representation so that rules ofprocedure are followed in the matter. 13.5 No valid claimfor notice pay, compensationfor unfair dismissal and related claims The second defendant ded that the claimant' contract of employment was unlawfully terminated. It contended that the employment was lawfully terminated as there were valid reasons and. lawful procedures were followed. I refer to paragraphs 4, 5, 6 and 7 of the second defendant's defence. The particulars ofthe second defendant's defence as pleaded were: 13.5.1 the second defendant was robbed ofKI 4; 373, 3 14.00 which was left -in office drawers by the. claimant and her colleague 13.5.2. the leaving of the cash in office drawers was against the second defendants standard operating procedures. The cash was supposed to be locked in a cash vault. 13.5.3 the second deferidant internally investigated the robbery and the claimant was one of the people- who was : questioned. during the investigations. I now produce the investigation report which is marked LK6. -13.5.4 the findings of the.investigations necessitated the. calling of the claimant toa diseiplinaryhearing. BSS the second defendant called ihe claimant to a disciplinary hearing on 22" November 2019 where she was found guilty of misconduct. Consequently she was suminarily dismissedfrom employment, that is, she was summarily dismissed.' nowproduce the invitation to a disciplinary hedring and the notice of termination of employment marked LKC7 and LRC8 respectively. -13.6 The second defendantfurther denied that the claimant was entitled to notice pay as the dismissal from employment was a summary dismissal, as such, she was not entitled to payment in lieu ofnotice or notice of termination of the contract. I refer to paragraph 4 of the second defendant's defence. th Esther Chiviya v. Attorney General & Mukuru Money Transfer Kenyatta Nyirenda, J. Both the Claimant and the 2" Defendant filed their respective supplementary sworn statements in support of their respective positions. As already stated, this application has been brought under Order 12, rule 23, of the CPR which rule provides as follows: (2) The claimant may apply fo the Court for assummary judgment where the "23. defendant has filed-a defence but the claimant believes that the defendant does not have any real praspect of defending the claim. (2) Summary judgement Shall not apply to a clam Jor libel, slander, false prosecution, false imprisonment, seduction ¢ or an Admiralty action in rem. Order 12, rule 25 (2) and rule 26of the CPR are also relevant and they are couched in the following terms: "(2) Where the Court is satisfied that (a) (b) the defendant has no arguable defence to the claim or part of the claim aspresented in the application; and there is no need for a trial of the application or that part of the application, the Court hall - (i) (ii) give judgment Jor the the application; and for the application or part of : 'make any other order the Court deeiti appropriate. 26.. The Court shall not enter sunimary judgment dgainst a defendant where it is satisfied that there is a relevant dispute between the parties-about a fact or an arguable question oflaw." In order for the claimant to get a summary judgment under the CPR, the claimant must demonstrate that the defendant has no real prospect of defending the claim (see Order 12, rule.23(1), of the CPR) and that there is no relevant 'dispute between the parties about a fact.or an arguable. question of law see (Order 12, rule 26, of the CPR). As was observed by the learned authors of S. Goulding Odgers on Civil Court Actions, (24% ed., Sweet & Maxwell, 1996), at page 129: "ifthe evidence ofthe defendant is incredible in any material réspect it cannot be said that there is afair or reasonable probab lity that the defendant has a real or bona fide defence andjudgment will be given to the plaintiff Thus, the mere assertion of a given situation Esther Chiviya v. Attorney General & Mukuru Money Transfer. Kenyatta Nytrenda, J. does not, on its own, show-a reasonable defence. The.court mustassess whether or not the defendant's assertions ure credble. : In the present case, the Qnd Defendant claims in itsstatement of defence that the Claimant was dismissed from employment becatse there were valid reasons as established through a disciplinary hearing. The 2" Defendant submitted that the requirements of sections 57 of the Employment Act were satisfied in that the gross negligence and Claimant was unauthorized absence from work. found guilty of. misconduct, namely, To my mind, the matters raised by the and Defendant are sufficient for the Court to find that there is-a relevant.dispyte between the parties regarding, among other the question whether or not the Claimant's employment was unfairly matters, terminated contrary to section 57 of the Employment Act. In short, I do not agree with the Claimant's assertion that"The second Defendant's. defence is a mere sham calculated to delay the course ofjustice". In the prewiises, summary judgement cannot be entered: see Order 12, rule 26, of-CPR. The application is, therefore, dismissed. Pronounced in Court this 23" day of March. 2022 at Lilongwe in the Republic of Malawi. Kenyatta Nyirenda JUDGE 7