Kalua and 11 others v Attorney General (Civil Cause 16 of 2023) [2024] MWHCCiv 3 (25 March 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NUMBER 16 OF 2023 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN ERENT RESTA siaseese sinter seeainsnen attic tiesay sauisssancuanemeumonsmese: 15} EMMANUEL MWAMBAZL....sce...0-. ano BEV AS CBC MBG aaciieswnesccinnsuisiansractacecnesmemsvgrcmnennxavesasamaces ar FASTEL MALATA.......ccssse SMART TAMU. scungusssssesvisocsansenssssnexsassssttesuntnsribasudnpsisvemsose B° SOLOMON GEOFFREY.....sssssssscessesecssstsasssessasaceceserousecescososce ot DAVIE LIPENGA oy ssssevscecssorseansssssesseevendvatssnsvenenvessnecasveseseeenmeeee mm SPIE OY PGR ccnssrsnenionsonsssagiaaistssnddintansamconeaseveemeseuasaees: gt SEERA, MALT OWED sssicswcnncceonenienssneta desannonenivaninunvenasssqaseinaisaiaan son git TIRH ALA MEUMBILA o.scsivsscssssassacsanseesseoversnverisennassavsennonse 10"! WELPORD- KON YAN exe eviixansncsiistonenncnesninepiasnevtanssieiainnucevases “ai FRENCH CHINTAPASA.....,...c00.2-cccssesssssessssssosessasersessuseonneeees i : AND ATTORNEY GENERAL (MALAWI POLICE SERVICE) eeesssseeseeeeees-. q CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Mbulo, Counsel for the Claimants Defendant, absent with just cause. The application is for a witho of default judgment Mrs F. M. Luwe, Senior Court Clerk CLAIMANT CLAIMANT CLAIMANT sseeeeseeeereees4 lt CLAIMANT CLAIMANT CLAIMANT 4 CLAIMANT 4 CLAIMANT CLAIMANT ) CLAIMANT CLAIMANT CLAIMANT EFENDANT lit notice order JUDGMENT 1 BACKGROUND TO THIS JUDGMENT 1.1 By a specially-endorsed summons dated 28"" July, 2023 the Claim this legal action against the Defendant. Attached to this su statement of case dated 10 July, 2023 and a list of documents alsa 2023. The Claimants also filed two sworn statements also dated which verified the statement of case and the list of documents: 1.2 Paragraph | of the statement of case dated 10" July, 2023 3 Claimants are alleged employees of the Malawi Police Servi various districts of this country: 1.3 Paragraph 4 of the statement of case dated 10 July, 2023 further Claimants allegedly successfully underwent alleged intervie recruitment into the Malawi Police Service allegedly in 2015; 1.4 Paragraph 5 of the statement of case dated 10! July, 2023 further Claimants allegedly joined the Malawi Police Service in alleged! The Claimants are alleged holders of alleged degrees from al universities whose particulars the Claimants did not state. These Ants commenced mmons were a dated 10" July. in July, 2023 ulleged that the ce allegedly in alleged that the vs for alleged alleged that the Ny March, 2017. egedly various alleged degrees were allegedly accepted by the Malawi Police Service allegedly during the alleged interviews for recruitment which allegedly took place in allegedly 1 rO1S: 1.5 Paragraph 7 of the statement of case dated 10% July, 2023 alleged that the Defendant allegedly gave the Claimants the alleged entry grade allegedly the entry grade for allegedly MSCE holders in the Service. This was allegedly contrary to the entry grades for gradu service which are allegedly grade I for first degree holders an honours degree holders: of N which is Malawi Police Ates in the civil d grade H for 1.6 Paragraph 8 of the statement of case dated 10!" July, 2023 alleged that allegedly on I“ July. 2017 the Defendant allegedly implemented some all reforms. The Claimants gave no particulars of these alleged stru These alleged structural reforms allegedly led into an alleged ty peed structural ctural reforms. o-step upward adjustment of alleged salary grades. This was allegedly done in a npanner that was allegedly discriminatory to the Claimants who are allegedly gradua 1.7 Paragraph 9 of the statement of case dated 10" July, 2023 alleged t March 2023 the Defendant allegedly implemented the alleged str 2 fes: nat allegedly in uctural reforms 1.8 Paragraph 10 of the statement of case dated 10% July, 2023 1.9 By an ex parte application for default judgment dated 2™ Oc with regard to allegedly police officers who were allegedly in the before 1° July, 2017. The Claimants were allegedly excluded. allegedly remain on salary grade 1 while allegedly their all allegedly from the same alleged 2016 intake are allegedly on salar Claimants allegedly wrote the Inspector General. They allege assisted, It is against this alleged background that the Claimants sq reliefs of: (a) An order that upon allegedly signing the GP1 Form were allegedly to be on Grade I and should allegedly therefore be { allegedly with effect from 23" March. 2017: (b) a uniform im alleged July, 2017 structural reforms so that the salaries and Claimants allegedly get adjusted two grades upwards: (c) salary alleged difference in alleged increased salaries from allegedly 15 allegedly 30" June, 2017: (d) salary arrears being the alleged dif allegedly increased salaries and current salaries from allegedly 1° | alleged rate of MK53, 885.00 per month: and (e) costs of this actio Claimants applied for an order that a default judgment should be the Defendant on the ground of the alleged failure of the Def defence within the alleged prescribed time. The application was this court pursuant to Order 12 rules 6 and 7 of the Courts (Hig Procedure) Rules, 2017 (“the 2017 Rules”) and the alleged inhe of this court. It was supported by a sworn statement dated 22" § (“Application Supporting Sworn Statement”) which Counsel fo swore. | APPLICATION SUPPORTING SWORN STATEMENT ALLEG, 2.1 Paragraph 3 of the Application Supporting Sworn Statement Claimants allegedly commenced the present proceedings against thd way of summons specially endorsed on 12% July, 2023: 2.2 Paragraph 4 of the Application Supporting Sworn Statement sté August, 2023 the Defendant allegedly got served with the alleged spe summons; ervice allegedly The Claimants pged colleagues y grade G: and Alleged that the Hly did not get ught the alleged s the Claimants egarded as such plementation of ositions of the rears being the April, 2017 to ference between uly, 2017 at the n. ober, 2023 the entered against rndant to file a brought before h Court) (Civil ent jurisdiction eptember, 2023 the Claimants ATIONS stated that the Defendant by ted that on 9" cially endorsed 2.3 Paragraph 5 of the Application Supporting Sworn Statement Defendant allegedly acknowledged receipt of the alleged summons. T] a return of service on the file of this court: 2.4 Paragraph 6 of the Application Supporting Sworn Statement state the Defendant allegedly failed to file a defence to the alleged claims a and 2.5 Paragraph 7 of the Application Supporting Sworn Statement stat allegedly be in the interest of justice if a default judgment got ent Defendant on all the alleged claims of the Claimants. THE EVIDENCE 3.1 The Claimants did not produce and exhibit any evidential do Application Supporting Sworn Statement. 3.2 In their list of documents dated 10 July, 2023 the Claimant exhibited a certified copy of a demand letter dated 5" April, 2023 thrd allegedly notified the Attorney General about their intended suit. THE LAW ON DEFAULT JUDGMENTS 4.1 UNDER THE 2017 RULES 4.1.1 Order 12 rule 6(a)(i) of the 2017 Rules states that where a deff file and serve a response or a defence within 14 days after summons...the claimant may file a sworn statement as a “proof of g stated that the here is allegedly 1 that since then f the Claimants: ed that it would pred against the fFument in their s produced and ugh which they pendant does not service of the ervice’ that the summons and response in Form 2 were served on the defendant as ee by Order 5 rule 7, and he may apply for a judgment in default to be entered against the defendant. 4.1.2 Order 12 rule 7(1) of the 2017 Rules states that an application fa default for ... unliquidated monetary claims ... judgment together with a sworn statement in support of the application 4.1.3 Order 12 rule 8(1) of the 2017 Rules states that this court may e in default for the claimant under. rule 7 without a hearing for ||. monetary claims 4.1.4 Order 25 of the 2017 Rules provides for the powers and function Section 2 of the Courts Act defines “Registrar” as the Registrar of the includes an Assistant Registrar, der this Order ra judgment in may be made by filing a draft of the nter a judgment . unliquidated s of Registrars. High Court and 4.1.5 Order 25 rule I(h) of the 2017 Rules states that subject to th e direction of a Judge the Registrar may exercise the jurisdiction, powers and functions of the court to make, or refuse to make. an order on entering of a judgment in default. OTHER LAWS OF RELEVANCE TO THIS APPLICATION 5.1 UNDER THE 1994 CONSTITUTION OF THE REPUBLIC GO 5.1.1 Section 152 of the 1994 Constitution of the Republic o Constitution”) establishes the Malawi Police Service which is cons Act of Parliament under which its various divisions and functions are 5.1.2 Section 155(1) of the Constitution establishes the Police Serv with such powers and functions as this Constitution or an Act of Pa on it. 3.1.3 Section 155 (2) of the Constitution gives the Police Service power to appoint persons to hold offices in the Malawi Police Service to appoint any person into the office of Inspector General who accd 134(1) of the Constitution is the Head of the Malawi Police Service. 5.2 UNDER THE POLICE ACT (CAP. 13:01 OF THE LAWS OF 5.2.1 Section 2 of the Police Act (Cap. 13:01 of the Laws of Mala Act”) defines a “police officer” as any member of the Police Service. F MALAWI F Malawi (“the lituted under an specified. ce Commission rliament confers Commission the It has no power rding to section MALAWI) vi) (“the Police 5.2.2 Section 6(1) of the Police Act states that police officers are ranked in order of precedence and command the rank of Inspector General being the mos of a constable being the most junior. 5.2.3 Section 75(1)(c) of the Police Act states that where any polid himself or herself wronged by the Inspector General ...in respec complaint not being redressed...he or she may complain to the Commission. 5.2.4 Section 75(2) of the Police Act states that ...the Police Service upon receiving a complaint under this section must cause the complai into and must if on enquiry it is determined that there is some merit take such steps as may be necessary for giving such redress to the com of the matter complained of as a case requires. 5.2.5 Section 75(3) of the Police Act states that every complaint must manner that standing orders or rules or regulations made under this Ac { t senior and that e officer thinks of his or her Police Service Commission... to be enquired the complaint plaint in respect be made in the prescribe. 5.3 UNDER THE EMPLOYMENT ACT (CAP. 55:01 OF TI MALAWI) 3.3.1 Section 2(2) of the Employment Act (Cap. 55:01 of the Laws qd that this Act does not apply to the police. It only applies to those who civilian capacities within the Malawi Police Service. 5.4 UNDER THE NATIONAL REGISTRATION ACT (CAP. LAWS OF MALAWI) 5.4.1 The National Registration Act [Cap. 24:01 of the Laws of ] operational on I* August, 2015. Section 3 of this Act establis Registration System. It states that the National Registration Syste| Population Register. 5.4.2 Section 4 of this Act provides for the appointment of a Dire Director for National Registration by the responsible Minister. 5.4.3 Section 7(1)(a) of this Act mandates the Director for Nationa keep or cause to be kept and maintained a national register of all citizens of this country above the age of 16 years. Section 7(1)(b) of the Director for National Registration to include in the national regis and maintains or causes to be kept and maintained all persons who aré HE LAWS OF f Malawi) states are employed in 24:01 OF THE Malawi] became hes a National m consists of a ptor and Deputy Registration to persons who are this Act allows er that he keeps t of or above the age of 16 years who while they are not citizens of this country have been granted permanent residence, temporary employment or business permits to 4 the Immigration Act (Cap. 15:03 of the Laws of Malawi). 5.4.4 Section 8 of the National Registration Act spells out th registration that the Director for National Registration records in the dependent on whether they are for a Malawian or a non-Malawian citi 5.4.5 Section 13(1) of this Act allows the Director for National Reg an identity card to every person registered under this Act. An ider under this Act is prima facie proof of the particulars of an individual register contains under section 17 of this Act. Regulation 12 Registration Regulations allows the Director for National Registra identity card after receipt of an application for registration in the nat the prescribed form and manner. Form NR4 contained in the Schedul eside here under > particulars of national register 7On. stration to issue tity card issued that the national f the National ion to issue an ional register in le to the Act isa depiction of the national identity card for Malawian citizens wh contained in the same Schedule is the depiction of an identity card fd citizens. In terms of Regulation 19 of the National Registration Re NR7 is a depiction of the national register that the Director for Nati keeps and maintains or causes to be kept and maintained. 5.4.6 All citizens of Malawi were required pursuant to Regulati( National Registration Regulations to comply with the requirements { the national register within 3 years of these Regulations coming into fi DETERMINATION OF THE APPLICATION OF THE CLAIMA 6.1 Through their ex parte application for default judgment dated 2" the Claimants sought that this court should enter a default judgn] Defendant. This application called upon this court to decide whether judgment should be entered against the Defendant for the reliefs of: ( ile Form NR5 r non-Malawian gulations Form nal Registration n 59(1) of the r registration in ree, NTS October, 2023 ent against the or not a default A) An order that upon allegedly signing the GP1 Forms the Claimants were allegedly to be on Grade | and should allegedly therefore be regarded as such allegedly with ¢ March, 2017: (b) a uniform implementation of alleged July, 2017 st so that the salaries and positions of the Claimants allegedly get adju upwards; (c) salary arrears being the alleged difference in alleged in from allegedly 1* April, 2017 to allegedly 30" June, 2017; (d) salary alleged difference between allegedly increased salaries and curret ffect from 23"¢ uctural reforms sted two grades creased salaries rrears being the salaries from allegedly I“ July, 2017 at the alleged rate of MK53, 885.00 per month; and (e) costs of this action that the Claimants particularized in their statement of July, 2023. The Claimants did not file any skeleton arguments. 6.2 The Claimants were not identified and they therefore remained before this court considering their allegation that they are security s who allegedly work within the Malawi Police Service. This court ded default judgment against the Defendant for the following reasons. It is case dated 10" unidentifiable ector personnel lines to enter a BO ordered. 6.2.1 This court observed that while the Claimants alleged the njatters that are particularized in sub paragraphs 1.2 through 1.8 of this judgmd Defendant they produced and exhibited no evidence whatsoever in th Supporting Sworn Statement that proved that they are police officer section 2 of the Police Act let alone employed in the Malawi Police § nt against the eir Application 8 as defined in bervice. It is so ordered. The Claimants did not give this court any particulars of numbers and ranks within the Malawi Police Service. Having themselves, particularized their employee numbers and ranks wit Police Service this court found it impossible to know the appointing Claimants in terms of whether it was the Police Service Commission General of Police. It is so ordered. The Claimants did also not producd evidence in their Application Supporting Sworn Statement that con hold any degrees. It is so ordered. They also did not produce and Application Supporting Sworn Statement any evidence that confirn them and other alleged police officers whose particulars the Claima there were the alleged salary discrepancies such that the a discrimination was made out and proved against the Defendant. It ig their list of documents dated 10" July, 2023 the Claimants only listed of the statutory demand letter dated 5" April, 2023 that they all t their employee not identified hin the Malawi authority for the or the Inspector and exhibit any rirmed that they exhibit in their hed that among s did not state ged claim of so ordered. In a certified copy Pgedly sent the Attorney General in purported compliance with section 4 of the Civil Procedure (Suits by or against the Government or Public Officers) Act (Cap. 6:01 Malawi). Section 4 of the Civil Procedure (Suits by or against the Public Officers) Act be Government...until the expiration of three months next after notice states that no suit can instituted been delivered to or left at the office of the Attorney General. The w intended suit must state the cause of action the name descriptior bf the Laws of Government or against the in writing has ritten notice of and place of residence of the plaintiff and the claimed relief. In addition to this statutory provision Order 8 rule 19 of the 2017 Rules states that all documents required the Government for the purpose of or in connection with any proced the Government must be served on the Attorney General. It is the con 0 be served on dings...against sidered opinion of this court that the Claimants having not stated the cause of action ip their demand letter to the Attorney General dated 5" April, 2023 they failed, neglec to comply with the mandatory statutory legal requirement of section Procedure (Suits by or against the Government or Public Officers) Ad ed and refused 4 of the Civil t read together with Order 8 rule 19(1) of the 2017 Rules even if the Attorney General received it. It is so ordered. This demand letter was also not sufficient as evidenc many allegations that the Claimants made against the Defendant in the case dated 10" July, 2023 with regard to their alleged status as alleged 8 e to prove the ir statement of police officers their alleged employment within the Malawi Police Service and the al conditions of the alleged employment on a balance of probabilitid application. It is so ordered. 6.2.2 This court noted that the Claimants did also not produce and leged terms and s in the present exhibit certified copies of their pay slips for them to prove and discharge the burden af proof that they had on a balance of probabilities that they are in paid employment w Police Service. In any event having substantially based their claims that they were allegedly discriminated against the Claimants were produce and exhibit certified copies of the pay slips of their all allegedly from the same alleged 2016 intake who are allegedly on while the Claimants allegedly remain on salary grade I. It is so ordered. 6.2.3 Section 75 of the Police Act deals with the mode of compla officer. Section 75(1)(c) of this Act states that where any police offic¢ or herself wronged by the Inspector General in respect of his or he being redressed...he or she may complain to the Police Service Cé court observed that in commencing their legal action before this cou did not at all utilize or demonstrate that they had utilized and failed dispute before the Police Service Commission. Section 155(1) of established the Police Service Commission with such powers and ff Constitution or an Act of Parliament confer on it. Section 13(a) of by L thin the Malawi n the allegation obliged to also ged colleagues salary grade G int by a police r thinks himself r complaint not mmission. This rt the Claimants to resolve this he Constitution unctions as this the Police Act states that it is the function of the Police Service Commission to formulate schemes of recruitment in the Malawi Police Service. Section 13(c) of the Police further function of the Police Service Commission as providing for all to the procedure for the exercise and the delegation of appointment... Section 13(d) of the Police Act finally states that it is Act spells out a matters relating its powers of the function of the Police Service Commission to adopt general measures necessafy to guarantee efficiency and transparency in relation to appointments...in. the Service. Section 14(a)(i) of the Police Act states that the Police Serv has power to appoint persons to hold...offices in the Malawi Police S of Inspector General excepted. Section l4(c) of the Police Act stateg Service Commission has the power to delegate by directions in wr powers to any member of the Commission or to any public officer of long as they are part of the Malawi Police Service. Section 14(d) of 9 Malawi Police ce Commission prvice the office that the Police iting any of its public body as the Police Act states that the Police Service Commission has the power to hear cor aggrieved police officers that relate to the exercise of delegated power the Police Act allows the Police Service Commission to require any p and give evidence before it concerning any matter which it may propé nplaints...from . Section 16 of erson to attend rly consider in the exercise of its functions and powers and may require the production of any documents relating to any such matter by any person attending before i the Police Act states that for the avoidance of doubt the fundamd contained in the Public Service Act (Cap. 1:03 of the Laws of M administration of the public service must be applied to the md administration of the Malawi Police Service. Section 31(1) of the Pd that police officers of the rank of or above the rank of inspector Inspector General are appointed by the Police Service Commission. S the Police Act states that police officers below the rank of inspector at the Inspector General in such manner as the Police Service Commiss and subject to such conditions as the Police Service Commission may| the considered opinion of this court that-these comprehensive statutory the legal basis on which the Claimants were at liberty to complain ab that they alleged in this application before the Police Service Co Claimants chose not to so complain before the Police Service Commis§ that were not made clear to this court. It is so ordered. 6.3 This court has declined to enter a default judgment that the Cl against the Defendant for the reasons stated in this judgment. This dismisses the application that the Claimants made for a default judgme against the Defendant. It is so ordered. Section 30 of the Courts Act (q Laws of Malawi) states that costs of court proceedings are in the discré Order 31 rule 1(a)(b) and (c) of the 2017 Rules amplifies this issue 3(1)(a) of the 2017 Rules states that this court has discretion as regards costs must be paid by one party to another. Order 31 rule 3(1)(b) of states that this court has discretion to decide the amount of any payal 31 rule 3(1)(c) of the 2017 Rules states that this court has discretion costs must be paid. Order 31 rule 3(2) of the 2017 Rules states that y . Section 29 of ntal principles alawi) for the nagement and lice Act states other than the ection 31(2) of e appointed by ion may direct prescribe. It is provisions are out the matters mmission. The ion for reasons Bimants sought court therefore nt to be entered bap. 3:02 of the tion of a court. Order 31 rule whether or not the 2017 Rules le costs. Order lo decide when here this court decides that costs must be paid, an unsuccessful party is ordered to paly the costs of a 10 successful party. This court exercises its discretion on costs to make no order for costs. It is so ordered. 7. THE RIGHT OF THE CLAIMANTS TO APPEAL AGAINST THIS JUDGMENT 7.1 The Claimants have a right to appeal against this judgment pursugnt to section 21 of the Supreme Court of Appeal Act (Cap. 3:01 of the Laws of Malawi). This provision states that an appeal lies to the Supreme Court of Alppeal from any judgment of the High Court or Judge in any civil cause or matter. THis court declines to grant the Claimants leave to appeal against this judgment to the Supreme Court of Appeal. It is so ordered. M. KONDOWE JUDGE 11