Kamlete v AG (Civil Cause 925 of 1995) [1996] MWHCCiv 16 (19 July 1996)

BETWEEN:- L W J KAMLETE '\ f.) ~• . . . . . . . . . . - . . . . l :...: ~ . 1-.~ ; °: J,,--_,_~~} . • • • PLAINTIFF - I ·--·-- - and - ATTORNEY GENERAL DEFENDANT CORAM: _ Msosa, J Ng'ombe, Counsel for the Plaintiff Unrepresented, Counsel for the Defendant Kadyakale, Officia l Interpreter ORIGINATING SUMMONS The plaintiff following:- by this originating summ ons prays for the (a) A declaration employment of unjustified, unlawful and an human righls. that tile the plaintiff interdiction or termination of the the public servic e was infringement to the plaintiff's from (b) A declaration that tt1e removal of the the plaintiff from public service aforesaid was a breach of conditions of service under t he Public Service Act in so far as no reasons no were given opport,unity wa s gi ven is required by Section 43 of the constitution of the Repu blic nf Malawi. and the plaintiff to be heard as tile plaintiff to removal such for to ( c ) A de c 1 a ration that the inform at i on tl1e media the false and malicious and only in particular f' ass e d on or caused to be Independ ent to intended the the good name, reputation and character of passed on to Newspaper was damage plaintiff. The plaintiff also seeks the fol lowing orders : (a) That he be re-instated Controller (P6) unconcli tional ly ancl into his post as Chief Assistan t t11at if any payments on H IG J...1 rnuq,- - 2 - account of salaries and other allowances had been withdrawn or witheld by reason of the interdiction be paid over to the plaintiff forthwith. (b) That the defendant do publish or cause to be published local newspapers and in the the Government Gazettes an apology and a reversal of the story that has appeared in the media concerning the plaintiff. in (c) That he be paid a fair compensation for injury and damage suffered through the conduct of the defendant. ( d ) That in the alternative or/and in the defendant having reached a accordingly retired with his full service scheme of retirement. addition to the foregoing, point of retirement be benefits under the public the facts he relies on. in support of his application The plaintiff swore an affidavit The plaintiff was which discloses the Civil Service Commission as Chief Assistant employed by The Secretary to ttie Treasury, by his letter Cont r oller (P6). the dated 14th August, 1995 It was func t ions and stated in order to facilitate the investigations that were taking place at the material time as he was He was interdicted on half pay. The alleged acts of misconduct were not spec i fied. interdicted him rluties as Chi.ef Assistant Controller. in the letter tl1at this was done in certain acts of misconduct. from exercising implicated The applicant s tates that he was aware of certain al legations that had earlier to his interdiction, appeared in the newspaper called "The Independent" dated March 29, 1996 which published an a rt i c I e u n d e r U1 e h e a cl i n g " C u s t om s : Se r i o u s F r a u d " . T h e p a p e r made all sorts of accusations of corruption and bribery against him. from inside the Department of Customs and Excise. information came the article the And according to to to the responded the Secretary the Treasury the move would clear his name. He Meanwhile, he the advised further investigations as advised him that he had instructed a firm of legal practioners to T h e a c t the to plaintiff's the for Treasury plai ntiff. There was no response to any of the two letters. interdiction. that he welcomed legal practitioner wrote r i g 11 t s we r e p r o t e c t e d • the Secretary confirming they were letter of t o e n s u r e f o r h i m , t h a t h i s acting indeed that He to the Officer-In-Charge of Police Later the plaintiff wrote seeking clearance after he had the Police had completed investigating the case and had found no fault in him. The Officer-in - Charge letter and advised him that the Senior State Advocate who had perused the Police docket concerning his case found no sufficient evidence to warrant his the case and that the prosecution. recornrnended closure of responded learnt that llis to Ile - 3 - interdiction against him order of The rescinded. pla i ntiff was advised from his controlling off i cer, the Secretary to the Treasury. On 1st April, 1996 the the Treasury seeking such pla i ntiff wrote clearance but up to the date of hearing of his application there was no response. to get clearance the Secretary to should be to the notice of The defendant was properly originating summons but have not entered an appearance and absent during its hearing. served with the was I remind myself of the fact that this is an orginating summons. Order 5 rule 3 of the Rules of the Supreme Court provides that proceedings by which an application to the High Court under any statute must, in the absence of any provision to the contrary, be commenced by originating summons. Rule 4(2) of the same order, provides that there are two categories of cases appropriate to begin by originating summons rather than by writ, namely:- is to be made (a) Where the sole or principal question at issue is the construction of an Act or of any instrument made under an Act or of any deed, will, contract or other document or some other question of law or (b) Cases in which there is unlikely to be any substantial dispute as to the fact. The present application has been made under Section 27(1)(a) of the Public Service Act which provide that except where a public public officer officer has service on to appointed permanent and pensionable terms shall be dismissed or otherwise instance of the Government have his services terminated at tl1e unless he a prescribed act of misconduct. absconded an established post no the public to have committed from his duties, is proved in The plaintiff's affidavit shows that he is under interdiction and investigations have revealed that he that although will not be prosecuted as there is lack of sufficient evidence, the Government has remained mute as to his fate. He, therefore, continues to be on interdiction and on half pay. the Police The plaintiff applies for several declarations or orders of this Court. The question which has exercised my mind is whether this is a proper c ase where the proceedings should have begun by originating summons and whether on th e affidavit evidence of the plaintiff the orders sought. the declarations and grant I can make My understanding of the Public Service Act is that it gives one of the instances under which the Government can dismiss or terminate the services of a On public officer appointed on permanent and pensionable terms. the provisions of Section 27(1)(a) of - 4 - the plaintiff seems to have been employed the evidence before me on permanent and pensionable that the provisions of Section 27 of the /\ct would apply in the event of termination of his services or dismissal. Further it is clear that he is under interdiction and that his services have not yet been terminated nor has he been dismis s ed. terms and I am of the view that there are alot of issues to be decided in this matter. The Cou r t will have to decide whether he has been unlawfully dismissed or his unlawfully terminated by the Government. The Court will also have to decide is responsible for the publication in the whe t her the Governemnt Independent" and if so whether the words newspaper titled "Tl1e the therein are defamatory as alleged. the question of damages to found Government consider the terms of the contract of employment. It will also be necessary there will be that to be liable. the event assessed services Then in have been is In view of all these issues, this matter is beyond the scope of the provisions of Order 5 rule 4 of the rules of the Supreme Court which determines the type of proceedings which can begin by an originating summons as opposed to a writ. the construction of The principal questions at issue in tl1is matter are not just in the contract of respect of employmnent or any other document. this matter can not the affidavit evidence which is available justly be decided on now. I consequently order that the case pro cee d as if it had begun by writ. the defendant. This is a proper case tl1at should have begun by writ. The plaintiff should serve a statement of claim on an Act or And MADE in Chambers this 19th day of July, 1996, at Blantyre. //):q..----:J ---7 (l_Q ! }{ -, ~ ~_,. Mrs/\ SE Msosa JUDGE (_ 1/