Kamwanje & Banda (Representing 118 others) v Paladin (Africa) Limited (IRC MATTER 35 of 2014) [2014] MWIRC 1 (7 August 2014)

The Malawi Judiciary IN THE INDUSTRIAL RELATIONS COURT HELD AT THE MZUZU DISTRICT REGISTRY In the Dispute Between: MATTER NO. IRC 35 OF 2014 MESSRS I. KAMWANJE AND CHISOMO BANDA REPRESENTING 118 OTHERS……………………………………… APPLICANTS AND PALADIN (AFRICA) LIMITED……………………….…………… RESPONDENTS CORAM: Msowoya, A. B. B., Deputy Chairperson Matumba, for the applicants Njobvu, for the respondents Mwenelupembe – Court Clerk ORDER ON A MOTION TO DISMISS ACTION Msowoya, A. B. B., This is a ruling on a motion to dismiss taken out by the respondent corporation, Paladin (Africa) Limited. Respondents’ motion, citing the court’s inherent jurisdiction, challenges applicants’ action on four grounds: First, that applicant’s action is invalid as a ‘representative action’ because applicants do not constitute a ‘class’ within the meaning of class action in legal proceedings. Respondents assert that applicants were employed as individuals on different terms and packages; thus, were retrenched on different considerations and received varying terminal benefits. Second, Form 1 and the particulars of the alleged trade dispute do not provide a ‘cause of action’ or ‘particulars of claim’ for each applicant as to put respondents in a position to properly enter a defense to the suit. Third, Form 1 does not provide particulars of the alleged acts as to inform respondents the reasons each applicant asserts their ‘retrenchment’ or ‘redundancy’ was an act of unfair dismissal. Finally, that Form 1 does not provide the full list and particulars of all applicants in the suit. The facts grounding the motion are that Messrs. I. Kamwanje and Chisomo Banda, ostensibly representing 118 ‘other’ applicants, filed a complaint against respondents in the Industrial Relations Court here at the Mzuzu District Registry. Respondents filed a holding defense. Respondents then sought, by correspondence through their attorneys Messrs. Savjani and Company, particulars of claims for each applicant from applicants’ attorneys, Messrs. Middleton Chambers. Applicants responded that they believed their amended Form 1 sufficiently particularized their cause of action, stating it to be respondents’ “failure to comply with the Employment Act in effecting redundancies.” I will highlight apparent conflicts between applicants’ statements, averred in their pleadings in amended Form 1, and their supposed clarification of cause of action in their correspondence to respondents’ attorneys when discussing this point further on in this opinion. For now, suffice to say I take note of these conflicting statements, mindful that correspondence between parties does not form part of pleadings but is nonetheless admissible in evidence. The matter was set down for a pre-hearing conference on July 9, 2014. Before said date, however, respondents filed the present motion. On the appointed date, both applicants and respondents appeared for the pre-hearing conference. Considering their presence and convenience, I opted to hear respondents’ motion, given the import questions raised in respondents’ motion bear on the practice and procedure in the Industrial Relations Court. I determined to subsequently remit the matter to the pre-hearing conference on resolution of the questions raised by respondents’ motion first, if need be. After hearing both parties and critically analyzing the questions raised, coupled with a careful consideration of the rules of practice and procedure in the Industrial Relations Court, I allow the motion and dismiss applicants’ action. The grounds on which respondents challenge applicants’ action raise important questions regarding the practice and procedure in the Industrial Relations Court. Although argued on four grounds, I believe there are mainly three questions this motion raises. I will discuss them as such: First arising is a question on ‘inherent jurisdiction’ of the Industrial Relations Court. Does the court have inherent jurisdiction? If the answer be affirmative, does such inherent jurisdiction extend to matters not expressly provided for by statute and the rules of practice? Second arising is a question on class action and its treatment in the law generally, and before the Industrial Relations Court specifically. Can a litigant bring a class or representative action in the Industrial Relations Court in like manner a regular suit? And last arising is a question on pleadings in the Industrial Relations Court. Given that the law intended to simplify the practice and procedure in the court for ease of access to litigants, just how relaxed are the rules governing pleadings in the court? Are litigants excused from observing all manner of canon in drafting pleadings on account of the informality allowed in the practice before the court? What is the court’s role in guiding litigants and enforcing standards in drafting pleadings to maintain reverence for the court’s juridical location while enabling ease of access to litigants? Observably, from experience as Deputy Chairperson, it would seem little reflection is given to canons of practice and procedure, both by attorneys and unrepresented litigants alike when instituting proceedings in the Industrial Relations Court; no doubt taking advantage of the relaxed practice and procedure established for the court. It appears, however, that addressing and resolving these issues is critical for enhancing administrative justice in employment and labor issues in this country. More importantly, rectifying these lapses in the judiciousness of practice and procedure is key to preserving the court’s location and reverence within the rubric of our judicial system. To that end, this order will mark a watershed in the court’s efforts to tighten and enforce the rules of practice and procedure specifically promulgated for the court; at any rate, beginning with this registry. At the very least, while we recognize the relaxation of formal rules of practice and procedure before the Industrial Relations Court, we must insist on complying with the established rules of practice without diminishing professional standards to the point of ludicrousness. As a starting point, respondents cite the court’s inherent jurisdiction as basis of authority for bringing this motion. This, they argue, is premised on the assumption that the rules of practice in the Industrial Relations Court do not provide for applications of this nature. They assert that since the matter falls within employment thresholds, the court may hear the motion; seeing as, unless the court resolves these questions, a question of jurisdiction may arise, whatever is meant by that assertion; Counsel did not elaborate. I do not agree with such a simplistic conception of authority on which the Industrial Relations Court would otherwise assume jurisdiction over an application of this nature. Generally, by inherent jurisdiction, I understand the term to mean the residual, automatic and ex officio authority of a court of law to regulate proceedings before it, including punishing contempt. In Chongwe –v- Nkhonjera, [1991] 14 MLR 56 (HC), the High Court held that a court has inherent jurisdiction on matters it is known to have and on those aspects affecting its identity and powers. So, where what a court is empowered to do can only be done by authority conferred by statute, such court cannot invoke its inherent jurisdiction as means and vehicle to assume for itself jurisdiction over matters denied it by exclusion. This is especially true where Parliament has expressly demarcated and limited a particular court’s jurisdiction, as it has for the Industrial Relations Court. Cast in that sense, the Industrial Relations court has inherent jurisdiction, but such inherent jurisdiction relates only and is limited to matters ancillary to exercising authority allowed by statute and excludes anything not connected with its granted powers, regulating its own procedure or punishing contempt. In that narrow sense, the court’s assumption of jurisdiction over matters or processes beyond its enumerated powers as granted by statute and other written law is impliedly prohibited. The Industrial Relations Court is a specialized court established by s. 110 (2) of the Constitution subordinate to the High Court. It has original jurisdiction to hear labor disputes and matters related to employment (Liquidator, Import and Export (Mw) Ltd –v- Kankhwangwa [2008] MLLR 219 (HC). To that end, its composition and procedure is specific, provided for and regulated by the Labor Relations Act (Cap 54:01 of the Laws of Malawi) and subsidiary legislation under that statute. In adjudicating substantive labor and employment issues, the court applies the law and principles espoused in the Employment Act (Cap 55:01 of the Laws of Malawi) or other laws that extend jurisdiction to it as well as customs uniquely characteristic of employment jurisprudence (RACHEL SOPHIE SIKWESE, LABOUR LAW IN MALAWI, 2010, 13 et seq, 86; Cf CASSIM CHILUMPHA, SC., LABOUR LAW, 2004, 54-57, (discussing statutory consolidation of common law as source of labor law)). What powers the court exercises, therefore, must primarily derive from these designated statutes or other written law expressly granting the court jurisdiction, and no place else. Invoking the inherent jurisdiction of the court generally in matters other than those enumerated by statute, or regulating procedure and punishing contempt, raises controversy because the Constitution implicitly grants broad inherent jurisdiction only to the High Court through its grant of unlimited jurisdiction to that superior court in s. 109. So, in adjudicating disputes before it, whatever inherent jurisdiction the Industrial Relations Court has must be construed to mean matters related to regulating its procedure as provided under s. 71 of the Labor Relations Act or those powers within its granted jurisdiction, or indeed punishing contempt. From that standpoint, the court must be cautious to act only within its allowed parameters of authority and principles related to its enumerated jurisdiction: Employment law and labor disputes. It should not readily extend its inherent jurisdiction to causes of action otherwise sui generis or indeed novel interlocutory applications merely because it is asserted that an application of the nature before it is not provided for in the rules of practice. On the contrary, motions of this nature are provided for and regulated by rule 16 of the Industrial Relations Court (Procedure) Rules. This rule states that an “interlocutory application or other application incidental to any proceedings pending before the Court in respect of which no procedure has been provided for by the Act or by [the] rules shall be brought … on notice of motion … in the form set out in IRC Form 3.” This rule grants general jurisdiction to the Industrial Relations Court to entertain interlocutory applications of this nature. It is prudent to always invoke this rule when making interlocutory applications otherwise not specifically covered by the rules because that is exactly what the rules of practice in the court require. Were it that the matters raised in this motion did not fall within the matters over which the Industrial Relations Court has jurisdiction, I would have been minded to dismiss this motion. However, failure to invoke the appropriate rule is only a minor infraction of rules of procedure that the court is expressly empowered to rectify under r. 25 (1) (a) of the Industrial Relations Court (Procedure) Rules, particularly given that applicants acquiesced to the motion being heard and have not been inconvenienced by such infraction or the hearing itself. Second, is this action invalid as a representative action because applicants do not constitute a class within the meaning of class action in legal proceedings? Respondents argue that applicants were employed as individuals on different terms and packages, and were retrenched on different considerations and received varying terminal benefits. As such, they do not constitute a class within the meaning of class action as to bring a representative suit. Before I delve into a general discussion of class actions and what implication designating applicants as representing a class has in the Industrial Relations Court and on these proceedings, I note that the two named applicants do view themselves as representing the interests of 118 other litigants, named and unnamed in the documents filed with the court. Indeed, applicants’ attorney, Mr. Matumba, conceded that the two applicants named in the suit should be considered representing themselves as well as the interests of 118 other applicants. The pleadings also point to the fact that the named applicants are not only representing themselves but also the interests of a multitude, some not listed in the action. Of course, as indicated earlier, respondents raised issue with the list of applicants. They assert that the list only discloses no more than 45 or 65 applicants at most, listed in a document titled ‘calculations for compensation’. That observation is correct and duly noted. However, for purposes of resolving the questions raised in the motion, I will not labor over it. It is not in dispute that the suit has multiple applicants not expressly joined in the complaint or suit for it to preoccupy me in this ruling. I will gloss over that issue when discussing the third question raised in this motion on pleadings. The procedural utility known as class action is commonly, but in my opinion, erroneously considered an invention of American jurisprudence. This is because class actions have been made famous world over by American entertainment and popular culture: Literature, film and television. On the contrary, the notion that class actions are uniquely an American legal invention could not be further from the truth. Class actions have existed in England long before the founding of the American colonies and have their origins rooted in English courts of equity. Even in Malawi’s civil procedure, adopted from English colonial administration, rules of practice have always allowed class actions. From an American perspective, Black’s Law Dictionary describes, rather than defines, a class action as, A lawsuit in which the court authorizes a single person or a small group of people to represent the interests of a larger group; specifically, a lawsuit in which the convenience, either of the public or of the interested parties, requires that the case be settled through litigation by or against only a part of the group of similarly situated persons and in which a person whose interests are or may be affected does not have the opportunity to protect his or her interests by appearing personally or through a personally selected representative, or through a person specially appointed to act as trustee or guardian (BLACK’S LAW DICTIONARY (8TH ED., 2004), 267). On the other hand, O. 15, r. 12 of the Rules of the Supreme Court, (RSC), provides authority for commencing representative or class actions. It states that, “Where numerous persons have the same interest in any proceedings, … the proceedings may be begun, and … continued, by or against any one or more of them as representing all or as representing all except one or more of them.” The truth is, while class actions have only been recently rejuvenated in many jurisdictions previously under English colonial hegemony, including in England itself, class actions as a tool for litigation have existed in English Law as an instrument of equity from as far back as 1100. (For a concise historical narrative of the development of class actions, see generally Susan T. Spence, ‘Looking Back . . . in a Collective Way; A short history of class action law’, available at http://apps.americanbar.org/buslaw/blt/2002-07- 08/spence.html, (last accessed July 25, 2014); the brief rendition of the development of class actions in English Courts of equity following derives mainly from this source). Spence states that for certain types of groups such as villages and parishes, litigation by representatives on behalf of the group was well established in England by the 12th century. For example, in 1125, a writ of Henry III to the archbishop of Canterbury stated that, “according to our law and custom of the realm … villages and communities of villeins … ought to be able to prosecute their please and complaints in our courts and in those of others through three or four of their number.” (Id). Stephen C. Yeazell suggests Master Martin Rector of Barkway –v- Parishioners of Nuthampstead (circa 1199), 95 Seld. Society 8 (No. 210) (1981), whose facts and resolution are unimportant for purposes of this opinion, to have been the earliest example of group litigation. (Stephen C. Yeazell, ‘The Past and Future of Defendant and Settlement Classes in Collective Litigation,’ 39 Ariz. L. Rev. 687, 690 (1997)). On his part, Raymond B. Marcin identifies Discart –v- Otes, a 1309 case, as another of the earliest examples of a judicially created class action. (Raymond B. Marcin, ‘Searching for the Origin of the Class Action,’ 23 Cath. U. L. Rev. 515, 521-523 (1974)). Discart concerned the currency used in the Channel Islands, about 20 miles off the northwestern coast of France. The facts and resolution in Discart likewise need not concern us. Marcin, however, suggests the judges in Discart got the idea of creating a class action from an earlier complaint filed by another group of Channel Islanders considered “[p]erhaps the best candidates for the title ‘authors’ of the original class action.” (at 522, citing John the Mason –v- Certain Bailiffs and Ministers, 30 Seld. Society 139 (No. 161, P. C. 1309) (1914)). Marcin also cites Hilgay –v- Wesnam, 10 Seld. Society 44 (No. 41, Ch. 1399) (1896) as another early example of a defendant group sued in a representative capacity (Id, 519-520). Marcin states that in 1399, Simon Hilgay, parson of the church of Hilgay, brought a bill in chancery against Robert de Wesnam alleging that Wesnam and his evil minions were menacing him so that “he dare not, in this most holy time of Lent, approach his said parsonage to hear the confessions of his parishioners, for fear of unmerited death.” Hilgay alleged that Wesnam and his confederates had chased him with “naked swords drawn, clubs and bucklers, from the town of Fincham in the County of Norfolk to the town of Crimplesham, which are two leagues distant, in order to have killed him.” (Id) Hilgay named six of Wesnam's associates as respondents, but pleaded as grounds for relief in chancery that, “considering that Robert Wesnam had so many evil-doers associated with him, and is of such horrible maintenance, he could never come to his recovery against him and his co-conspirators at common law”. The chancellor commanded Wesnam and his co-conspirators to appear before the King and his Council (not before the chancellor) to answer Hilgay’s bill. However, the case most commonly acknowledged as the first reported class action in the English chancery court is Brown –v- Vermuden (1676), 1 Ch. Cas. 272; 22 Eng. Rep. 796. Brown is also considered the earliest reported case holding that the judgment in a class action is binding on absent class members. Susan T. Spence notes that similarly, the modern American class action evolved on the equity side of the courthouse. In that regard, Spence points out that Rule 23, of the Federal Rules of Civil Procedure is descended from an equitable exception to the necessary joinder of party rule. She adds that the U. S. Supreme Court promulgated its second set of Federal Equity Rules in 1842, adding a new rule interpreted by courts as providing for class suits in the modern understanding of the term. In Montgomery Ward & Co. –v- Langer, 168 F. 2d 182, at 187, the court stated that “the class action was an invention of equity, … mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights, nor grant them immunity from their equitable wrongs.” From a procedural standpoint in US Federal courts, there are four prerequisites that must be satisfied before a class action can be maintained. First, the class must be so large that individual suits would be impracticable. Second, there must be legal or factual questions common to the class. Third, the claims or defenses of the representative parties must be typical of those of the class and fourth, the representative parties must adequately protect the interests of the class. These prerequisites, albeit with minor and negligible differences, are also extant in English procedural requirements and, by implication, in Malawi. Given that class actions existed in courts of equity in England, it is trite learning that class actions in Malawi emanate from the adoption of English Law with the Reception Clause of 1902 by which Malawian courts have power to apply common law and equity. In that regard, and this is significant with respect to the Industrial Relations Court, courts that have jurisdiction in equity and common law derive their equitable and common law jurisdiction from this adoption of English law as opposed to grants of jurisdiction by statute. In Malawi’s civil procedure, class actions or representative actions are provided for in O. 15, r. 12 RSC, the same as in English courts before the adoption of the Civil Procedure Rules in that realm in 1999. Order 15, r. 12 codifies the law and practice relating to class actions and outlines the binding and enforceable character of judgments in such actions. Contextualized from a historical perspective in the development of class actions from equity, the express concern of this opinion, O. 15, r. 12, derived from the earlier O.16, r. 9, on the practice of the Court of Chancery, which was intended to apply in all Divisions of the High Court in England. The practice of the Court of Chancery required the presence of all parties interested in a matter or suit in order that a final end might be made to the controversy. However, when the parties were so numerous “that you never could come at justice,” the rule was relaxed and a representative suit was allowed. As Jessel M. R., so aptly put it in Commissioners of Sewers –v- Gellatly, (1876) 3 Ch. D. 610 at 615: Where one multitude of persons are interested in a right, and another multitude of persons are interested in contesting that right, and the right is a general right, some individuals may be selected from each multitude to represent the rest, so that the right might be finally decided as between all parties in a suit so constituted. Similarly, Kapindu J., notes in Inkosana Kangawa Mhone et al –v- Malawi Housing Corporation (citation omitted, (unrep.)), “[c]lass actions are a practical way of getting around the [ rigors] of joinder of parties otherwise addressed under Order 15 of the RSC in instances involving numerous parties.” Again, Megarry J., pointed out that the rule as to representative proceedings should not be treated as a rigid matter of principle but a flexible tool of convenience in the administration of justice. He went further to state that it should not be applied in any strict or rigorous sense, but “according to its wide and permissive scope” (see John –v- Rees; Martin –v- Davis; Rees –v- John [1970] Ch. 345; [1969] 2 All E. R. 274). As noted in O. 15, r. 12, these sentiments echo what Lord Lindley said in Taff Vale Railway Co. –v- Amalgamated Society of Railway Servants [1901] A. C. 424, at 443, “[t]he principle on which the rule is based forbids its restriction to cases for which an exact precedent can be found in the reports. The principle is as applicable to new cases as to old, and ought to be applied to the exigencies of modern life as occasion requires.” The rule regarding representative proceedings requires a flexible and broad approach to enable the Court do justice. For example, in M. Michaels (Furriers) Ltd –v- Askew (1983) 127 S. J. 597, (CA), the court granted an injunction to restrain a number of unidentified persons causing injury and damage by unlawful acts where there was an arguable case that they belonged to a single organization or class which encouraged action of the type complained of, and that action was linked to that organization, such as an unincorporated association of persons campaigning against cruelty to animals, particularly vivisection, known as Animal Aid. Again, in EMI Records Ltd –v- Kudhail [1985] F. S. R. 36, (CA), the court extended the application of a class action to an instance where numerous persons, whose number and identities were unknown because of the secrecy of their organization, but who had a common interest that linked them as members of a class or group, engaged in the trade of pirated cassette tapes bearing a specified trade or brand name and having a common identity of interest in preventing anyone finding out where the cassettes came from, by granting an ex parte injunction and an Anton Piller order in favor of named plaintiffs suing in a representative capacity against named defendants sued in a representative capacity on their own behalf and on behalf of all other persons engaged in the trade of selling cassette tapes bearing the specified trade name. Megarry J., pointed out in J. Bollinger S. A. –v- Goldwell Ltd [1971] R. P. C. 412 at 420 that a representative action cannot be brought unless the whole of a claim is appropriate to that form of action. In that regard, the rule applies to all causes and matters and is not confined to persons who have or claim some beneficial proprietary right which they are asserting or defending (see Bedford (Duke of) –v- Ellis [1901] A. C. 1). Order 15, r. 12 requires that the numerous persons represented, whether as plaintiff or as defendants should have the same interest in the proceedings. In Bedford, Lord Macnaghten said at p. 8, “Given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature [common] to all whom the plaintiff proposes to represent.” (Cf. judgment of Jessel M. R., in Commissioners of Sewers –v- Gellatly, (1876) 3 Ch. D. 610 and the speech of Lord Lindley in Taff Vale Ry –v- Amalgamated Society, etc. [1901] A. C. 426 at 443). It is, therefore, an essential condition of a representative action that the persons who are to be represented and the person or persons representing them should have the same interest in the same proceedings (see Roche –v- Sherrington [1982] 1 W. L. R. 599; [1982] 2 All E. R. 426). In that sense, for the rule to apply, the necessary qualifications to be satisfied are that all the members of the alleged class should have a common interest, that all should have a common grievance and that the relief is in its nature beneficial to all (Pan Atlantic Insurance Co. and Republic Insurance –v- Pine Top Insurance Co. [1989] 1 Lloyd's Rep. 568, CA, and Smith –v- Cardiff Corp. [1954] 1 Q. B. 210, CA). A representative action can be brought by a plaintiff suing on his own behalf and on behalf of all members of a class, even where each member, including the plaintiff, has a separate cause of action, subject to three overriding conditions: (1) that no order will be made in such an action if its effects might be to confer a right of action on a member of the class represented who would not otherwise be able to assert such a right in separate proceedings, or to bar a defense which might otherwise have been available to the defendant in such a separate action. The relief which will normally be obtained by a plaintiff in such representative capacity will only be declaratory relief; (2) that all the members of the class represented share an interest which is common to all of them, so that there must be a common ingredient in the cause of action for each member of the class; and (3) that the Court must be satisfied that it is for the benefit of the class that the plaintiff should be permitted to sue in such a representative action, e.g. that the issues common to every member of the class will be decided after full trial and in the light of all the evidence capable of being adduced in favor of the claim (Prudential Assurance Co. Ltd –v- Newman Industries Ltd [1981] Ch. 229; [1979] 3 All E. R. 507). If the plaintiff in his representative capacity establishes his claim to the declaratory relief sought, it will still be necessary for each member of the class to bring his own action to establish the exact quantum of damage suffered by him since the court has no power to make an order for damages in a representative action. The only effect of the declaratory order in favor of the plaintiff in his representative capacity is that the issues covered by that order would be res judicata between members of the class and the defendants (Id.). Similarly, in its application to cases of contract or quasi-contract, the rule only applies where the persons sought to be represented have the same rights or are all under the same liability and have the same defenses and no others as those representing them as plaintiffs or defendants in respect of the claim for which the action is brought. Juxtaposed against these prerequisites, the questions to ask in relation to applicants in the present action would necessarily have to be: Are applicants in this action so numerous that individual suits would be impracticable? Is the whole of the claim appropriate to this form of action? Is the relief sought by applicants in its nature common to all whom named applicants purport to represent? Put differently, do applicants in the present action have the same interest in these proceedings? Again, the following questions must necessarily be asked to ascertain whether or not applicants in the present action can bring a class or representative action. Is it demonstrable that if the named applicants, suing on their own behalf and on behalf of all members of the class, have separate causes of action; can they satisfy the three overriding conditions enumerated above? Is it demonstrable that any order that may be made in the action will not have the effect of conferring a right of action on a member of the class represented who would not otherwise be able to assert such right in separate proceedings? The corollary is indeed true, would this action and any such order made have the effect of barring a defense which might otherwise have been available to respondents in a separate action? Is the only relief capable of being obtained by applicants representing the class declaratory relief in nature, as in a declaration that all the members of the class represented are entitled to damages for unfair dismissal because respondents’ acts on retrenchment were common to all of them? Do all members of the class represented share a common interest, so that there is a common ingredient in the cause of action for each member of the class? Will the Court be satisfied that it is for the benefit of the entire class that applicants should be permitted to sue in such a representative action? And lastly, will the issues common to every member of the class be decided after full trial and in the light of the evidence that may be adduced in favor of the claim? What I am able to extract from the statement of claim in the amended IRC Form 1 is that all applicants were employed by respondents in various positions; they were all based at Kayerekera Mine in Karonga and “their main duties at all material times included mining for the production of uranium.” No further details or particulars of the named applicants or the 118 others are given. However, the gravamen of their complaint seems to be in clause 5.d, which avers that, “on or around 7th February, 2014, the respondent retrenched the applicants without giving notice and/or paying compensation for the unfair dismissal.” No further statements or details of events leading to the February 7 retrenchments are narrated, nor details of what transpired after the alleged retrenchments. To that, respondents contend that applicants are not a class because each was employed under different terms and conditions. They each were entitled to varying terminal benefit packages on retrenchment. In their correspondence to respondent’s queries for particulars of the claim and applicants, Messrs. Middleton Chambers state in ‘SC1’ exhibited in Mr. Davis Njobvu’s affidavit that, “[we] observe that the amended IRC Form 1 is sufficiently particularized in terms of the cause of action which is failure to comply with the Employment Act in effecting redundancy.” Now, if applicants were to satisfy the prerequisites for bringing a class or representative action, in essence responding affirmatively to the questions posed above, they would do so, first, on demonstrating that there are so many of them that individual suits would be impracticable. Clearly, this is obvious. If all applicants were to have a common interest in the suit, bringing separate actions would certainly not be practical. Second, and in my considered view, the only way applicants in the present action would have a common interest in the suit is if the complaint is cast in the context of respondents’ infractions of procedural requirements for implementing retrenchment at law. In that regard, if the complaint sought to challenge respondent’s conduct in the manner they effected retrenchment for the named applicants and the 118 others, such framing of the complaint would present a common interest the group would share. If they articulated the complaint in those terms, if the question before the court were to determine whether or not respondents had complied with the law in retrenching applicants, then and only then would applicants be a class that can bring a class action or a representative action. In that sense, applicants would have a common interest for the court to resolve and finally determine the matter as to render that issue res judicata between the parties. That determination would apply to each and every one of the 118, including the named two applicants such that success or failure would ultimately settle the dispute save for assessment of damages for each individual applicant thereafter. That, however, presupposes that respondents’ actions towards all members of the group was uniform. On first reading the statement of claim, one would think this to be the case. Not quite. In the manner the complaint has been framed in this action, I do not believe that applicants have particularized allegations against respondents’ conduct clearly, or at the very least, to give the court an idea what the true nature of the complaint is to demonstrate their common interest. This is because if each member received individualized treatment in the way they were retrenched, the similarity of interest would cease. Recall that earlier, I alluded to apparent conflicts between statements in applicants’ pleadings and their correspondence to respondents’ attorneys. The statement of claim makes reference to retrenchment, while correspondence to respondents’ attorneys makes reference to redundancy. Now, the question arises, what exactly is applicants’ complaint in reference to? I indicated, of course, that correspondence does not form part of pleadings. Nevertheless, correspondence is admissible in evidence to support a claim. In this instance, the apparent conflict in applicants’ statements and correspondence is significant because retrenchment and redundancy mean two distinct and exclusive concepts in law and this may implicate whether or not a claim is properly particularized for this to qualify as a class or representative action. In the present case, this is even more significant because respondents specifically requested further particulars of claim from applicants’ attorneys in order to best enter their defense. Applicants supplied their understanding of particularization of cause of action to respondents’ attorneys, which gives an indication of their mindset in framing the complaint. Their response is therefore relevant for respondents to properly understand what claims are being levelled against them so they can enter an appropriate defense. In that regard, r. 11 (b) (ii) and (iii) of the Industrial Relations Court (Procedure) Rules clearly require applicants to give a “clear and concise statement of the material facts, in chronological order, on which the party relies, which statement must be sufficiently particular to enable any opposing party to reply to the document” and present “a clear and concise statement of the legal issues that arise from the material facts which statement must be sufficiently particular to enable any opposing party to reply to the document” (emphasis supplied). Applicants’ statement of claim does neither. Their supposed clarification only goes to display perhaps a classic lack of appreciation of the distinction between retrenchment and redundancy. In employment and labor law, retrenchment involves a reduction of the workforce due to economic downturn while redundancy involves a reduction of positions resulting from a number of factors. Of course, such factors include restructuring, technological exigencies and may very well include economic hardships and downturns (RACHEL SOPHIE SIKWESE, LABOUR LAW IN MALAWI, 2010; 241-242). In more practical terms, retrenchment targets people while redundancy targets positions. As Sikwese puts it, “a person cannot be declared redundant but a position which a person is holding can be declared redundant …, but it is unlikely that only one employee will be retrenched,” unless the establishment has a very small workforce (Id). In the present action, respondents’ acts are reminiscent of retrenchment and not redundancy. But, as the analysis above shows, applicants have not clearly particularized this in their complaint. If applicants are to satisfy the requirements to sue as a class, they should clearly contextualize their complaint to relate to respondents failing to follow established procedures regarding retrenchment. In that sense, the resolution of that question would apply to all applicants regardless of the terms and conditions under which individual contracts were entered into. Only in that narrow sense then can applicants be considered a class to bring a representative action. Even if they did qualify, however, on account of the specific issue to be determined by the court common to all in the class, it is not automatic that they can then bring a class or representative action in the Industrial Relations Court. The question still arises, can they do so without first seeking leave of court from the High Court? First, the discourse on class actions above centers on O. 15, r. 12, RSC. The Rules of the Supreme Court are applicable in the High Court. They are not applicable in the Industrial Relations Court. The rules applicable in the Industrial Relations Court are the Industrial Relations Court (Procedure) Rules. Nowhere do these rules allow for representative actions of the sort purported to be brought in applicants’ case. As a matter of fact, the rules require that each applicant’s particulars should be provided in IRC Form 1, the statement of claim. Clause 1 of IRC Form 1 specifically requires that if there is more than one applicant, a list with their names and particulars should be attached to the form. Second, the expose on class actions locates it as a utility grounded in equity. The Industrial Relations Court does not have jurisdiction to entertain applications in equity. I earlier alluded to the Industrial Relations Court being a specially established court under statute with limited jurisdiction. The Industrial Relations Court is a specialized court established by s. 110 (2) of the Constitution subordinate to the High Court with original jurisdiction to hear labor disputes and matters related to employment. The Industrial Relations Court cannot invoke jurisdiction over matters otherwise denied it by exclusion. As such, the court is empowered to and can only act within the authority conferred to it by statute or some other written law. That jurisdiction does not extend to equity or common law. As Sikwese points out, “[e]quity being unwritten law, is by way of exclusion, not exercisable by subordinate courts.” (SIKWESE; supra, 186-187). As a subordinate court, the Industrial Relations Court does not have jurisdiction to entertain suits and grant remedies founded on common law or equity. Class actions can only be allowed by a court in the exercise of its equitable jurisdiction. The High Court has expressly proscribed the Industrial Relations Court from exercising equitable jurisdiction. If there was any doubt on the courts’ powers to apply equity and common law, all doubt has since been put to rest in a number of decisions by the High Court. The High Court has confirmed that the Industrial Relations Court does not have power to exercise equitable jurisdiction. In Liquidator, Import and Eport (Mw) Ltd –v- Kankhwangwa, [2008] MLLR 219, the court said: The subordinate courts in Malawi do not exercise equitable jurisdiction. As a matter of fact, the Industrial Relations Court, which is a subordinate court, is not a court of equity. Surely, if it was such a court that had equitable jurisdiction it should have had jurisdiction to grant equitable remedies. Moreover, the jurisdiction of the Industrial Relations Court is clearly spelt out in the Constitution and the Labour Relations Act, 1996. It has jurisdiction to determine disputes brought to it under the Labour Relations Act or any other written law. It is trite knowledge that equity is not written law. There is accordingly no equitable jurisdiction conferred on the Industrial Relations Court. The Industrial Relations Court is again proscribed from granting remedies founded on common law as pronounced in Malawi Telecommunication Limited –v- Malawi Postst and Telecommunications Workers Union, Civil Cause No. 2721 of 2001, (unrep) (HC). This position means that where a party wishes to institute a class action or representative action in the Industrial Relations Court, they need first to make an application in the High Court for leave to do so, as is the general requirement where a party seeks equitable relief (SIKWESE; supra, 186-187). Absent that, any party must comply with the practice and procedure in the Industrial Relations Court laid out in the Labour Relations Act and the rules of practice in the Industrial Relations Court (Procedure) Rules. Simply put, every applicant must either supply their names and particulars in a suit brought jointly or must commence a separate action. This action, brought as a class or representative action without leave of the High Court is erroneous in law and entertaining it would be to exceed the jurisdiction of the Industrial Relations Court granted by the Constitution and its establishing statutes. It remains now to deal with the third and final question raised by this motion, and this relates to pleadings in the Industrial Relations Court and just how relaxed they ought to be viewed by applicants. Noting that applicants in the present action are represented by the two named individuals, it means that the 118 other applicants have not supplied their particulars and details, relying on the named applicants to represent their interests. As discussed, however, a representative action of the sort brought by applicants here is outside the granted jurisdiction of the Industrial Relations Court. From the foregoing, it needs no rocket science to conclude that respondents’ argument that applicants have not supplied particulars of claim or, for that matter, particulars of every applicant as required by rules of practice, must, by implication, be sustained. Generally, the procedure in the Industrial Relations Court is deliberately relaxed than is in proceedings before the High Court or the Supreme Court. The rules were designed to ensure seamless simplicity to provide wide access to litigants, who, more often than not tend to be employees otherwise indigent and incapable of affording the services of counsel (see SIKWESE; 194-195). As such, the procedure before the court, and in particular the dictates of drafting pleadings, do not adhere to strict cannons extant in civil proceedings (see s. 71 (2) & (3), Labor Relations Act; SIKWESE, id. 199). Still, the simplicity of procedure in the labor court ought not to be reason for converting the court into a circus of mediocrity. It is imperative the established rules of practice and procedure be followed by litigants. If the rules are not followed to a satisfactory degree, we ran the risk of transforming the court into an arena of speculative discretion at the expense of fairness and justice according to law. Weighed against this analysis, it is not too hard to realize that applicants’ amended IRC Form 1, the statement of claim has not, in my view, properly been prepared. I cannot stress enough that the Industrial Relations Court, relaxed though its procedure be, is still a court of law. Its rules of practice and procedure must be complied with. More importantly, litigants need be aware that deliberate disregard of these rules will jeopardize an otherwise meritorious claim. In this application, amended IRC Form 1 is clearly ill-prepared and offers inadequate material facts measured against the established rules of practice, even for the relaxed standards in the Industrial Relations Court. In fact, given what is pleaded in amended IRC Form 1, the statement of claim, it is near impossible to discern what the material facts giving rise to the trade dispute are. To be precise, the drafting of the statement of claim not only challenges the court trying to appreciate the issues in contention, it is equally challenging, if not embarrassing, for respondents to enter their defense. Ordinarily, these drafting errors would be addressed at the pre-hearing conference. According to r. 13 of the Industrial Relations Court (Procedure) Rules, a matter is ready for pre-hearing conference when IRC Form 1, the statement of claim, is completed by the applicant, filed with the court and served on the respondent (r. 11); and, where the respondent seeks to defend, when they complete, serve and file IRC Form 2, the statement of response (r.12). These are, at this stage, the only documents required to set the matter down for a pre-hearing conference (SIKWESE, supra, 199). The pre-hearing conference aims to establish (a) whether the court record is in order, which it is deemed to be when both Forms 1 and 2 have been completed and filed in terms of rules. 11 and 12; (b) whether there are issues for the court’s determination; and (c) whether the issues require a sitting by the full court or only of the Chairperson or Deputy (SIKWESE, supra, 199). To better express the importance of pleadings, P. T. K Nyasulu –v- Malawi Railways Ltd [1998] MLR 195 (SCA) is illustrative. Kalaile JA, SC., writing the unanimous opinion of the court put it as follows at pages 199-200: Cases must be decided on the issues on record, and if it is desired to raise other issues they must be placed on record by amendment.’ [. . .] It is essential that a pleading, if it is not to be embarrassing, should state those facts which will put those against whom it is directed on their guard, and tell them what the case which they will have to meet [is]. . . ‘Material’ means necessary for the purpose of formulating a complete cause of action; and if any one material statement is omitted, the statement of claim is bad [. . . .]. Each party must plead all the material facts on which he means to rely at the trial; otherwise he is not entitled to give any evidence of them at the trial. No averment must be omitted which is essential to success. Those facts must be alleged which must, not may, amount to a cause of action [. . .]. Where the evidence at the trial establishes facts different from those pleaded, [. . .] which are not just a variation, modification or development of what has been alleged but which constitute a radical departure from the case as pleaded, the action will be dismissed [. . . ]. Moreover, if the plaintiff succeeded on findings of fact not pleaded by him, the judgment will not be allowed to stand, and the Court of Appeal will either dismiss the action […] or in a proper case will if necessary order a new trial [. . .]. [I]t is left to each one of them to formulate his case in his own way [. . .]. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.” (Citations omitted. Nota Bane: P. T. K Nyasulu –v- Malawi Railways Ltd, Civil Cause No. 202 of 1990 was decided by the High Court in 1992 and is reported at [1992] 15 MLR 376. The Supreme Court heard the matter on an interim question in 1993 and delivered its ruling reported at [1993] 16(1) MLR 394 (SCA). The Supreme Court decided the substantive appeal in 1998, reported at [1998] MLR 195 (SCA). It is erroneously cited in Kambuwa –v- Malawi Institute of Management [2000–2001] MLR 190 (HC) as Civil Appeal No. 23 of 1998 when it was in fact Civil Appeal No. 13 of 1993.). Now, although the Industrial Relations Court is not bound by rules established for drafting pleadings in general civil proceedings, P. T. K Nyasulu nonetheless illustrates that pleadings allow the court to narrow down the issues for determination. This is true even for matters in the Industrial Relations Court. In simple terms, this means that where the pleadings do not disclose a cause of action, for example, the court is able to decipher what the appropriate cause of action or claim is at the pre-hearing conference. If in fact the cause of action is not reflected in the pleadings, which is often the case, given that most litigants before the court are indigent laypersons, the court has the opportunity to guide and direct such litigants to set out those facts to competently disclose a claim or cause of action to properly be adjudicated upon by the court. The pleadings may then be amended so the cause of action or claim is properly set out and the controversy resolved (SIKWESE, supra, 199; Cf: Kalowekamo –v- Malawi Environmental Endowment Trust (2008) MLLR. 21 (MSCA) and Malawi Telecommunications Ltd –v- Makande, Civil Appeal Num. 70 of 2003 (HC) (unrep.) (discussing whether or not the court can award a remedy otherwise not pleaded in the statement of claim). The High Court has stated that the Industrial Relations Court can refuse to grant a remedy not pleaded in the statement of claim where, at the pre-hearing stage an applicant is afforded an opportunity to amend their pleadings but refuses to do so (Chiomba –v- Banja La Mtsogolo, MSCA Civil Appeal Num., 33 of 2008 (MSCA) (unrep.)). Of course I am mindful that this matter had not yet been subjected to a pre-hearing conference where the court would have had the opportunity to advise applicants to amend the statement of claim to properly particularize the cause of action or the claim. That, however, is no excuse for laxity in maintaining professional standards. Further, the outcome in this ruling is consequent on respondents challenging applicants’ action before the matter came for the pre-hearing conference. Whether the matter were brought as a class action or on an individual basis, the particulars of the trade dispute should have clearly been set out. As it is, the details are scanty. It is hardly possible to decipher what cause of action is being pursued, apart from applicants’ own declaration of what that cause of action or claim is. Clause 1 of Form 1 requires applicants to give their particulars. It goes further to require that if there is more than one applicant, a list should be attached to the form giving their names and particulars. In the present action, only two names have been supplied. Curiously, even then, applicants have given respondents’ postal address as theirs. Since they have all been retrenched, the question arises how possible it is for them to receive mail through an address they no longer work at. To make matters worse, that address belongs to their adversary in these proceedings. Needless to say, the named applicants have not supplied a physical address as otherwise required in IRC Form 1. In clause 4, the information filled in purports to give a combined description of the trade dispute in relation to all applicants. Again, both applicants list particulars of relief sought without distinguishing which applicant is claiming what relief. This makes it difficult for the court to single out how to adjudicate on each applicant’s claim. It is necessary that each applicant separately state, as required by Form 1, the particulars specific to their claim even if they are proceeding as a group, especially where the facts giving rise to the trade dispute are the same. Finally, the statement of claim does not, contrary to requirements of clause 5, provide particulars of the alleged trade dispute, whether in respect of one applicant or in respect of all. To that end, and consequently, the record at this stage has no material facts on which the claim is based. It is in these instances that the court should direct applicants to supply particulars of the trade dispute at the pre-hearing conference to enable a stratification of the issues to be adjudicated upon. To be clear, it is not that the rules of practice and procedure require litigants in the Industrial Relations Court to be paragons of ‘drafting’ prudence, to corrupt a popular saying. Still, every litigant is expected, at the very least, to outline the material facts on which their complaint is based. In simple terms, this means providing a narrative of the facts, or telling the story, if you please, that gives rise to a trade dispute in clearly numbered paragraphs. Clause 5 of IRC Form 1, the statement of claim, clearly requires litigants to “provide particulars of [the] alleged trade dispute set out in clear and concise particulars in paragraphs including sub-paragraphs, consecutively numbered.” If, as had been the assumption in this case all along, the matter were filed as a class or representative action, a narrative of the procedures taken by respondents, or indeed not taken, alleged to be the acts comprising noncompliance with the Employment Act in effecting retrenchments or, as purportedly clarified in correspondence, redundancies, should have been clearly set out under Clause 5. This would enable respondents to consider what they did in effecting the retrenchments, if that is what they did, and enter a defense or admit liability for breaching established law. Moreover, such clarification of material facts would provide the court a clear understanding of the acts complained of as properly to sit in adjudication and resolution of the controversy. As it were, and this observation is general, most applicants file suits in the court as though they were on a fishing expedition, relying on respondents to supply the pleadings and evidence that supports their claim at the time they respond to the statement of claim. This is unacceptable; even in light of the relaxed procedures before the Industrial Relations Court. At any rate, this will no longer be condoned. The significant point to remember when pursuing litigation is that these are matters that should always be borne in mind when drafting pleadings in the Industrial Relations Court even in the wake of its relaxed procedural allowances. On account of the reasons above, I allow the motion and dismiss applicants’ action. In accordance with the rules of practice in the Industrial Relations Court, I make no order for costs. Any party aggrieved by this decision has the right to appeal to the High Court within 30 days from the date of this ruling. Dated this……7th……….. Day of ……August………..2014 Austin Msowoya DEPUTY CHAIRPERSON 15