Kanjerwa v Dzinyemba t/a Tirza Enterprises (Civil Cause 686 of 2001) [2005] MWHC 131 (25 October 2005)

? 'A/W}VVVM /{’ IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 686 OF 2001 BETWEEN : DAVIE BBNIERWA v -8 iniing i 50 50 L PLAINTIFF AND iL. M. DZINYEMBA t/a TIRZA ENTERPRISES......... DEFENDANT CORAM : Hon Justice M. C. C. Mkandawire Mr. Salima of Counsel for the Plaintiff Mr. Kanyenda of Counsel for the Defendant Ben Luckson Official Interpreter JUDGMENT Mkandawire J INTRODUCTION: The plaintiff began this action by writ of summons on the 118 of February, 2004. The Plaintiff claims for damages for defamation of character, damages for unlawful dismissal/wrongful withholding of wages, and reimbursement of travel expenses to and from Mulanje A default judgment was entered in favour of the Palice ‘Station. Thereafter, the defendant applied Plaintiff on the 26 Dof April, 2004. for stay f excuntion and a defence was later on filed with the Court On the 14 Jof January, 2005, the default 6%of October 2004. on the judgment was set aside. On the 1%) of March, 2005, the Court At this point in time therefore, all granted directions for trial. is done in making the case ready for hearing. ll Before the matter could proceed for hearing, the defendant filed a rsummons applying for leave to transfer proceedings from the High -Coun to the Industrial Relations Court. As per the available evidence “on record, the summons seeking leave to transfer the matter to the IRC was filed on the 1{'§of July, 2005. The defendant has filed both an affidavit and skeleton arguments in support of this application. On their part, the Plaintiff's Counsel did not file any affidavit neither any skeleton arguments. Counsel for the Plaintiff said that he saw no reason for filing these documents as the matter herein was a straight forward issue. With due respect, | thought that Counsel over relaxed. The matter was not as straight forward as he would like the Court to believe. Counsel should always come prepared and no case should be taken lightly. Be that as it may, | proceeded to hear Counsel based on his oral submissions. . SURVEY OF THE APPLICATION: is Basically, the defendant’s Counsel has deponed that the Plaintiff's action is largely a labour dispute; and that the remedies which the Plaintiff wants to enforce are found in the Labour Relations Act and the Employment Act. The defendant therefore say that the Plaintiff his prayer that the Industrial It has chosen the wrong forum. Relation Court has the competence to handle the claims herein as is only cases that can not be handled by it that can be brought to the High Court. He finally depones that this is a proper case whereby the High Court should decline jurisdiction by referring this matter to the Industrial Relations Court. Counsel goes on to caution this Court that if such matters are allowed, then this Court shall be inundated with a lot of these labour disputes. In his skeleton arguments, Counsel has cited several case authorities whereby the High Court has on times without numbers referred Labour related Matters to the Industrial Relation Court. his submission, Counsel for the Plaintiff said tpat:although he In but the other appreciates that the matter herein is labour related, yelaims such as defamation and transport expenses to the Police can ‘not be addressed by the it has no urisdiction over such issues, Counsel also wondered as to how the be defendant came to condemned to pay costs of this action up to this stage. Industrial Relation Court as the conclusion that Plaintiff should the THE LAW: The Law is very clear that the High Court of Malawi has got unlimited This original jurisdiction pursuant to section 108 of the constitution. therefore means that the High Court can entertain any matter, be it a Labour Related Matter such as this one. in (2) section The same constitution Industrial Relations Court which is conferred with original jurisdiction over labour disputes and such other issues relating to employment. The Labour Relations Act has also given powers to the Industrial Relations Court in Section 64 to hear and determine all labour disputes and disputes assigned to it under this Act or any other Law. to have jurisdiction established the - has a Court of It is therefore very clear that the Industrial Relations Court does not Be that as have exclusive jurisdiction over Labour Related Matters. it may, the policy at the High Court is now well settled that most Judges prefer to refer these Labour Related Matters to the Industrial The various case Relations Court as authorities from this Court are a manifestation of this Policy. The cases of Hyghten Lemani Mungoni vs The Registered Trustees of Development of Malawi Traders Trust (DEMATT) PR Civil cause No. 686 of 2001, Mary Kaunde v§>Malawi Telecommunications Ltd PR cause No. 687 of 2001_Dick Chikwekwe vs)Banja La Mtsogolo Civil Cause No. 285 of 2002 have elaborated this policy of referring labour related disputes to the Industrial Relations Court. first instance. L 2 Indeed as recent as this year, | also had the opportunity to refer a labour related case to the Industrial Relations Court in the Case of "Leonard Chitate and Another vs Avery Berkel Private Ltd PR, ) \= Civil cause No. 2799 of 2004. my judgement: This is what | had to say on page 5 of (L Thus “When one looks at the nature of the Counter claims as well as the interlocutory applications, it is very clear that they are both the labour and employment dispute premised on outcome of this labour dispute or this employment dispute shall have a bearing on the claims made by the defendant. As such, | do not see any merit as to why this matter can not be heard by the Industrial Relations Court. Coming to the issue of the High Court having unlimited original jurisdiction, | would like to say that we at the High Court should be very careful in the way we | take it that although we have unlimited look at this Section. original jurisdiction, this should out be construed to mean that we have limitless jurisdiction. Where the same constitution has a to established a we should first pause and ask particular species of cases, ourselves as to what were the objectives of the legislature, | am very confident that Parliament in its wisdom knew very well that But having the High Court has unlimited original jurisdiction. realized how bogged we are at the High Court with all sorts of cases, the Constitution created a different avenue for labour related cases and those involving employment related issues.” particular judicial institution deal with Today, | still stand by my observations in the above case. there Court, however Relations held that a policy to refer labour related cases to the sporadic are it has There is thus no real uniformed This was also noted by my learned brother Justice Although there is Industrial instances whereby the High Court has still powers to hear these cases. approach. Chipeta in the case of Harry Bakasi— vis’Sugar Corporation @ of Malawi as well as in the case of Paul Chimenya v§0OIld Mutual Life R Assurance Co (Malawi) Limited Civil Cause Number 2559 of Since these cases were decided in the early 2000 when 2002. the Industrial Relations Court had just started hearing cases, an institutional audit in the mid 2000 will show that the policy is now more uniformed. PR, Civil Cause Number 559 of 2000 (unreported) Analysis of Facts: As a general approach, | would advocate that labour related cases should certainly be transferred to the Industrial Relations This Court as a Court of first instance is best placed to Court. adjudicate over them. The High Court should be spared for appeals pursuant to Section 65 (2) of the Labour Relations Act a word of caution. The transferring of Let me however throw in Labour related matters from the High Court to the Industrial Relations Court should be approached on a case by case basis. There should be guidelines which the High Court should | would therefore follow inorder to avoid injustice to the parties. herein under list some of these guidelines: (1) The Nature of the claim before the Court. comprising other issues beyond the jurisdiction Industrial Relations Court? ’ Is the claim the of (2)Would the separation of these claims not occasion unjustice - to any of the parties. (3)At what stage of the trial is the application for transfer made? (4) How much time has elapsed between the date of filing of the claim to the date the application to transfer the case is made. These are a few of the guidelines which may be of help to the High Court if we are to attain uniformity in approach. Having said that, let me look at the facts of this application. Apart from the claim of unlawful dismissal, the plaintiff is also claiming for defamation of character and other special damages. | am aware however that from the detailed statement of claim attached to the writ of summons, the plaintiff is basically relying on The plaintiff has deliberately drafted the claim of unlawful dismissal. the statement of claim in such a way as if the claim of defamation is a core claim yet it Therefore on the nature of the claim, | find | have also taken into that this account that the case has not yet been set down for hearing at this Court. | also abserve on the case file that there is not too much time lost. is transferred to the IRC, very little shall be lost. a purely labour related issue. is not. is If it — e e o ORDER | therefore order that the matter herein be transferred to the IRC which is best placed to deal with it as a Court of first instance. As for costs, each party shall bear its own costs. MADE IN CHAMBERS this 2&ay of October, 2005 at Blantyre