Nthala v Malawi Airlines Limited (IRC MATTER 483 of 2023) [2024] MWIRC 6 (17 January 2024)

REPUBLIC OF MALAWI IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MATTER NO. IRC 483 OF 2023 BETWEEN: JUDITH NTHALA................ccccececcecceccccecccncecceccesecsesseseesessecseseesenses APPLICANT -AND- MALAWI AIRLINES LIMITED. .............ccccceccececcecceceececseceeseesee sees RESPONDENT CORAM: PETER M. E KANDULU, DEPUTY CHAIRPERSON Ndhlovu, Counsel for the Applicant, Chidothe, Counsel the Respondent, K. Kakhobwe, Court Clerk RULING ON A MOTION FOR AN ORDER FOR SETTING ASIDE DEFAULT AND AN ORDER TO SET ASIDE ASSESSMENT OF COMPENSATION PROCEEDINGS AND AN ORDER DECLINING TO GRANT AN ORDER FOR STAY OF EXECUTION OF THE DEFAULT JUDGEMENT Introduction These are the motions for an order setting aside default judgement filed on 20" November 2023 an order to set aside assessment of compensation proceedings and an order declining to grant an order for stay of execution of the default judgement. All three applications are made under Rule 16 (1) and Rule 25 (h) of the Industrial Relations Court (Procedure) Rules. The two motions are dismissed with costs to the Applicant on the reasons captioned to be presented later in the course of this judgement order. The reasons for dismissing the motions shall follow immediately after the brief facts and chronological order of the events of this case. Brief Facts and Chronological Order of Event of the Case The Applicant commenced the present proceedings seeking (a) an order that the applicant was unfairly dismissed, (b) an order that the conduct of the Respondent amounts to unsafe and unfair labour practice, (c) an order that the backdating of the applicant’s termination 1s wrongful, (d) an order for compensation (e) an order for damages for wrongful termination being the salaries for the period of backdating the termination and (f) an order for severance allowance pay. The IRC Form 1 was duly served on the Respondent on June 19, 2023, and the official date stamp of Malawi Airline Limited acknowledging receipt of service was duly stamped on the IRC Form 1. The Respondent despite acknowledging receipt of the court process exercised their right to ignore the process to reply and file IRC Form 2 and as a result, a Default Judgement on liability was entered against the Respondent on the 5" day of July 2023. A notice of appointment to assess compensation was duly issued on the 10" day of July 2023. The 3" day of October was appointed as a date to assess the compensation at 9.00 am. On the appointed date, the matter failed to take place because there was no proof of service on the Respondent. A notice of Adjournment was duly issued on the same date and the matter was rescheduled to take place on the 27" day of November 2023. The Respondent was duly served with the notice and the date stamp acknowledging service was stamped on the return copy on file on the 8" day of November 2023. On the 20" day of November 2023, Counsel Chithode filed an ex-parte notice of motion for leave to be represented by a legal practitioner. The said leave was granted on the 22™ day of November 2023. On the same date, counsel filed a motion for an order for stay for execution of the default judgement. The court dismissed the motion for an order to stay the execution of the default judgement. The court cited that there was evidence and proof that the respondent was served with a duly notice of IRC Form 1 but the court noted and appreciated that the Respondent had chosen to exercise his right not to respond or file IRC Form 2 in reply. In the same order, the court directed the matter to come inter parte for assessment of damages, as the court was not satisfied with the reasons for the Respondent's failure to file a reply in IRC Form 2. The Court issued a fresh notice of adjournment for the hearing of the assessment of compensation. The matter was decided to come on the 12 day of December 2023 at 9.00 am. The Respondent was duly served with the Court sanction notice of assessment of Compensation. When the file was called for the hearing, counsel for the Respondent was not in court. The court was informally told that counsel for the Respondent had indicated that he would be attending to hearing of a ruling in the Court of the DCP Her Honour Edna Bodole at 8.30 am. Counsel for the Applicant had requested the court to adjourn the matter to 9.30 am to give an allowance for counsel for the Respondent to come and address the court. The Court was asked to start the hearing of the assessment of compensation at 9: 30 am. Before 9.30 am, the court had asked the Court Clerk to go and find out whether the ruling for the case that counsel had referred for the delivery of judgement had been delivered. The Clerk reported that the court was not ready with the ruling and counsel was just waiting past the time the ruling was scheduled to be delivered. The Court asked the Court Clerk if counsel for the Respondent had filed a notice for the delivery of the judgement as evidence that he was indeed waiting to attend this court session at 830am since as indicated above the court had failed to deliver its judgement at the appointed time as claimed by counsel for the Respondent. It was discovered that the notice for the delivery of Judgement was not filed with the court. Therefore, my court failed to verify whether by staying past the time indicated for the delivery of the judgement was true or a mere wish to delay the proceedings of the assessment of compensation in my court. At 9: 30 am, counsel for the respondent was still not in court. There was no notice of adjournment which had been filed by counsel for the respondent or in the alternative counsel for the respondent did not bother as a matter of courtesy to write or come in personally to address the court or to seek a court adjournment since the notice of assessment of compensation was duly issued by the court not Counsel for the Applicant or the Clerk. The court felt, if indeed, it was true that there was a delivery of the judgement at 8.30 am, Counsel Chidothe would have appointed any counsel on brief or any counsel from his legal house to attend to the delivery of the judgement because his presence in the court was only to hear the pronouncement of the decision of the court and get a copy of the said judgement. Chidothe and Chidothe is a big legal house that enjoys the presence of more than two lawyers. The court made an order that in the absence of a formal communication from counsel for the Respondent for postponement or adjournment of the case, the case shall proceed since there was evidence and proof that counsel for the Respondent was aware that the matter was coming for the hearing at 9.00 am and later it was changed 9.30 am to allow counsel Appear or come to address the court for further conduct of the matter. The court could not have waited indefinitely for Counsel for the respondent in the absence of his specific getting or seeking leave of the court to prolong the proceedings. The Court could not be getting directions or could not be macro-managed by the litigants or the lawyers as if it is the lawyers or the litigants who are in charge of the court sessions or business. Suffice to mention that immediately after the hearing of the assessment of compensation and when the court had been adjourned, counsel for the Respondent appeared to seek audience with the court. The court was so generous to the effect that an audience with counsel for the Respondent was granted. Counsel informed the court that he was waiting to hear the delivery of the judgement from the Court of the Deputy Chairperson. Counsel informed the court that he had an informal discussion with counsel for the Applicant that he wanted to attend to the delivery of the judgement, which was scheduled to take place on 8.30, and he was very sure that by 9: 15 am he would be free to attend the hearing of the assessment of compensation at 9:30 am. At the time, he was coming to address the court; the time was around 10.15 am. Counsel for the Respondent did not bother to produce and exhibit the copy of the judgement that the alleged court had issued to him. When the court asked counsel what had stopped him from coming and addressing the court and seeking leave to adjourn the matter for another date when he realized that the time was past 930am rather than make the court wait for him indefinitely when he did not bother to seek leave of the court, counsel had no good justification or explanation for the failure to do so. The court ordered counsel for the Respondent to file a formal motion with an affidavit in support, which the court could attend to, and make its ruling on his prayer, which is the subject of this judgement. Motion for an order to stay the execution of the Judgement and assessment of Compensation. Having read the presentations of both the Applicant and the Respondent which are on file and presentations during the brief interparty hearing, the court indicated that the motion for stay and to set aside a default judgement on the 5" day of July 2023 was dismissed on two reasons firstly, the Respondent was duly served with IRC Form 1 in good time and there was evidence that the respondent was served. However, the Respondent had exercised their right not to comply with the court set laid down procedure to file a reply within a time prescribed by law, secondly, the reason cited by counsel for the failure to file a reply was internal or negligence on the part of the Respondent. The question that had exercised my mind to ask at this time is, how does negligence or internal poor communication or management of the respondent concern the court or the applicant? The court did find that the internal poor communication and negligence of the Respondent were not reasons enough to persuade the court to set aside the default judgement or to stay the proceedings of the assessment of damages. The Law 16.-(1) 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 these Rules shall be brought by a party on notice of motion which shall, as near as possible, be in the form set out in IRC FORM 3 (2) The applications referred to in sub-rule (1) shall be supported by an affidavit; Provided that- (a) Applications as to procedural aspects need not be supported by affidavit; and (b) Depending on the nature of the application, the Court may dispense with such notice. General Powers 25.-(1) without prejudice to the decision-making power of the Court under section 67, the Court may on application or its motion at any time- (a) Before or after the expiry of any period condone any failure to comply with any rule including periods save for the time within which an appeal may be lodged with the High Court and may abridge at any time prescribed by these Rules; (b) Allow the allegation in any form to be amended at any time; (c) If in any proceedings it appears that a party to the proceedings has been incorrectly or defectively cited, correct the error, defect, or order the substitution of the party; (d) Join any other person as a party to the proceedings at any time on any such terms and conditions as it deems fit; (e) Make an order consolidating the disputes pending before it in separate proceedings where it deems such consolidation expedient and just; (f) Allow any party at any time to amend his application or his opposition; (g) Grant any order in the absence of a party if it is satisfied that the party had notice of the set hearing date; (h) Rescind on good cause being shown, any order made by it in the absence of a party; (1) order any person who fails to comply with any notice or directive given in terms of these Rules to do so; (j) Order that any party who fails to comply with any notice or directive shall not be entitled to any relief in such proceedings; (k) Set aside any irregular step, which has been taken by another party unless the party complaining of the irregular step has with knowledge of the irregularity taken any further step in the proceedings; (1) Declare in the case of a partnership or film, that any person was at a certain time or for a certain period a partner of a partnership or the proprietor of a firm; (m) grant- (1) Urgent interim relief pending a decision by the Court after a hearing; and (ii) An interdict or any other order in the case of any action that is prohibited by law regarding any trade dispute; (n) Before or during a hearing, grant a rule nisi and confirm or discharge a rule nisi on the return date if appropriate unless the Act otherwise provides; and (0) Preside at any pre-hearing conference. (2) In any application referred to in sub-rule (1), the Court may make such orders as it deems fit. (3) The Chairperson or, in his absence, the Deputy Chairperson shall, in his direction, decide when and for how long the Court shall be in recess during any year. (4) The Court, in the exercise of its powers and discretion and the performance of its functions, may act in such manner as it may consider expedient in the circumstances to achieve the objectives of the Act and in so doing it shall have regard to substance rather than form, save as is otherwise provided in the Act. Legal Principles for granting a stay The legal principles, which guide a court when considering an application for a stay of execution of judgment pending appeal are thus very, clear. The general rule is that the Court does not make a practice of depriving a successful litigant of the fruits of his or her litigation: see J. Z. U. Tembo v. Gwenda Chakuamba, supra, Re Annot Lyle (1886) 11 PD 114. The Malawi Supreme Court of Appeal restated this position in Dangwa and Another v. Banda (1993) and Mike Appel & Gatto v. Saulosi Chilima, (2013) MLR 231, MSCA. Therefore, the fact that a party has exercised his or her right to appeal to a higher Court does not mean that the judgement appealed against must be stayed: see Order 59, rule 13 of RSC. However, the Court is most likely going to grant a stay where the appeal, if successful, would be rendered nugatory: see Wilson v. Church (No. 2) (1879) 12 Ch D 454. In Press Corporation v Cane Products Limited (2005) MLR 377, the court emphasized that the burden to show special circumstances warranting a stay of execution is always on the applicant: see also Mhango v. Blantyre Land and Estate Agency Limited 10 MLR 55 and Barker v. Lavery (1885) 14 QBD 769. The applicant therefore needs to demonstrate to the Court that there are special circumstances in favour of granting a stay. Further, a Court will order a stay of execution pending appeal when it is satisfied that the applicant would suffer loss, which could not be compensated in damages: See paragraph 59 /13/1 of the RSC. At the end of the day the question of whether or not to grant a stay is at the discretion of the Court and each case must be assessed on its facts and merits, Nyasulu v. Malawi Railways Limited [1993] 16{1) MLR 394. Generally, the Respondent bears the onus to prove that the Applicant will not be able to pay back the damages awarded to it. In Anti-corruption Bureau v. Atupele Properties Ltd, MSCA Appeal Case No. 27 of 2005 {1 February 2007), Tambala JA (Rtd), made the following pertinent observations: "First it [stay of execution] is within the discretion of the Court. Secondly, the general rule is that the Court shall not interfere with the right of a successful party to enjoy the fruits of litigation. Third, where a respondent would be unable to pay back the money then a stay may be justified. Lastly, the court would still have discretion to refuse a stay even where the respondent is impecunious if the stay would be utterly unjust and oppressive.” The bottom line is that the applicant must demonstrate that the respondent falls within the exceptions. It is not for the respondent to demonstrate the capacity to pay back. The duty lies on the applicant to establish the respondent's lack of capacity to pay back." In Davies Lanjesi & Others v. Joshua Chisa Mbele, HC/PR Civil Cause 1 of 2014 (unreported). Katsala J addressed the issue, on page 6, as follows: "All that the defendant has done is to state that he is optimistic that his appeal will succeed as such the judgment must be stayed. He has gone to great lengths to set out his 20 grounds of appeal and the reliefs he expects to get from the Supreme Court of Appeal. These are irrelevant in as far as, the present application is concerned. Even if he were to state a million grounds of appeal, in my view, it would still be irrelevant and a waste of time, because grounds of appeal are not one of the considerations in an application of this nature. In other words, trying to demonstrate that the judgment appealed against is full of rubbish and will be reversed on appeal is pointless and a clear demonstration of a lack of knowledge of the principles governing the application. As was said in the Chidzankufa case {supra) at 182: the answer to the Plaintiff's argument. The fact that there are prospects of the appeal succeeding is not a ground upon which a stay can be granted. The words of Chatsika J, as he then was, in Nyirenda v AR Osman [1993] 16(1) MLR 400 at 403, readily come to mind. 'A judgment of a Court of competent jurisdiction remains enforceable even though there are good grounds that an appeal against the judgment will be successful. ' Reasoned Analysis of the Facts and the Law As already stated, the court delivered its judgement against the Respondent on the 5" day of July 2023, which is the subject matter of this motion. As captured in this ruling, the motion was supported by an affidavit sworn in by counsel Chidothe for the respondent. I had read the affidavit in support carefully to appreciate the reasons advanced by counsel Chidothe for this court to grant an order for a stay. There are two reasons basically that made the respondent fail to file a reply within the period prescribed by law according to what counsel for the respondent had indicated in the affidavit in support of the first motion. The reasons are poor internal communication and negligence. Should the court consider poor internal communication or management and negligence as a persuasive justification to denial the successful litigants by set aside the judgement? In my view, I am not persuaded as the onus to show special circumstances lies with the Respondent. I find that poor internal communication or poor management of important court process is not special which can entitle the Respondent acquire an order to set aside the default judgement which was granted rightly by following the rules of the Court. The court is compelled to agree with counsel for the Applicant that the Respondent is only aiming at frustrating the fruits of the successful litigants when he filed the motion for an order to stay the 9 execution of the judgement and the proceedings of the assessment of compensation. Counsel for the Applicant had moved the court to dismiss the motion in its entirety with costs. The Industrial Relations Court would only award costs to a successful litigant in special circumstances. This is a special case where the court would exercise its discretion to award costs to the Applicant. I find that the motions for an order to stay the execution of the judgement, to set aside the default judgment and to stay the proceedings of the assessment of compensation lacks merit and a waste of court time. It is only based on a finding that I award costs to the applicant. The court further directs that the assessment of compensation shall proceed and Counsel for the Applicant is directed to prepare a notice of hearing of assessment of compensation. Delivered in chambers this 17 day of January 2024 at Blantyre. \ A Ri So c SU Na Ne Nos J PETER M. E KANDULU DEPUTY CHAIRPERSON 10