Malawi Confederation of Chambers of Commerce and Industry v Mvula and 5 Others (Civil Appeal 13 of 2014) [2018] MWHC 1255 (21 May 2018)

IN THE HIGH COURT OF MALAWI — ~ HIGH COURT PRINCIPAL REGISTRTY CIVIL APPEAL NO 13 OF 2014 Le BEING MATTER NO. IRC 172 OF 2011 LIBRARY = BETWEEN MALAWI CONFEDERATION OF CHAMBERS OF COMMERCE AND INDUSTRY.............:secseccseceecescesceececasceeeeeceeeeses APPELLANT REHEMA MVULA AND 5 OTHERG...............ccsececeeceeeeceeceescesssseseeeness RESPONDENTS CORAM: THE HON. JUSTICE D. T. K. MADISE Mr. Masumbu, Counsel for the Appellant Mr. Samuti Phiri, Counsel for the Respondent Mr. M. Manda Official Interpreter Madise, J JUDGMENT 1.0 Introduction 1.1 The six Respondents in this matter took out form J in the Industrial Relations Court on 23rd February, 2011 claiming unfair dismissal following a restructuring exercise following a recommendation of a consultant the Appellant had Engaged. The decision to implement the termination of the Respondents happened on 31st December, 2010. 1.2 The Respondents challenged jointly and severally the implementation of the restructuring exercise which apparently was done without proper consultations. This was apparent as the Appellant had employed new staff to fill the vacancies left by the Respondents. 1.3 In the court below the Appellant admitted liability and judgment was entered In favor of the Respondents. The Matter then went for assessment. The court below made its order on 21st February, 2014 and ruled that the Appellant should pay for loss of fuel, airtime, fixed line Units, medical aid and cost of loss of Use of motor vehicle. The court further ordered payment of withheld pension benefits and made an award which was Uplifted by 50% to cushion devaluation of the Malawi kwacha, 1.4 Being unsatisfied with the order of assessment, the Appellant has appealed to this court. I’m mindful that appeals in this Court are by way of rehearing of all the evidence, the law applied and the reasons for the decision arrived at. 2.0 The Grounds of Appeal 1. The Industrial Relations Court erred in law in awarding the applicants reliefs beyond what they had sought in their pleadings. 2. The Industrial Relations Court erred in law in ignoring the cardinal principle of the law of pleadings that a party is bound by its pleadings. The Industrial Relations Court erred in law in treating devaluation as being synomous with and /or the same as inflation. The Industrial Relations Court erred in law in failing to appreciate that an inflation rate is different from a devaluation rate. The Industrial Relations Court erred in law in granting a blanket 50 percent Uplifting of the claims by the applicants when the majority of the applicant's claims already took into account the devaluation and inflationary factors and were as such already uplifted. The Industrial Relations Court, in. this regard, erred in making double compensation to the applicants. The Industrial Relations Court erred in law in Uplifting the applicants’ benefits by 50 percent to take into account the devaluation aspect when devaluation of Malawi Kwacha only took place in May, 2012, and could, therefore, not extend to the entire 33 months period in relation to the applicants’ claims. The Industrial Relations Court erred in law in failing to appreciate that the second applicant did not suffer any loss and or damage from the devaluation of Malawi Kwacha but actually benefited from the same. The Industrial Relations Court erred in law in failing to deal with the fifth applicant's failure to mitigate her losses and damages by the clear lack of evidence showing that she had looked for alternative employment and had attended interviews. 3.0 The Facts 3.1 What appeared in the Industrial Relations Court form 1 is as follows. Reliefs Sought 1 - BK Damages for unlawful termination of employment Constitutional damages for unfair labour practices Reinstatement Other relief as the court may seem fit 3.1 As | have already stated that judgment was entered for the Respondents by consent and the matter went for assessment. The Appellant has not challenged the other awards the Industrial Relations Court made. What they are challenging is the 50 percent uplifting of the awards. 4.0 The Arguments 4.1 The Appellant was of the view that the Industrial Relations Court had already factored in devaluation of the kwacha when it made the first award. In that regard there was no jurisdiction for Uplifting the award by 50 percent as this was not specifically pleaded in the summons (form 1). The Appellant argued that both parties to the case were bond by their pleadings. 4.2 The Appellant cited Banja la Mtsogolo vs Harriet Chiomba MSCA Civil appeal No 33 of 2008 (Unreported) in that matter Tambala SC JA stated. “We are liable to believe that granting an effective remedy is to give a litigant a remedy which was not been requested in their pleadings. In the present case the Respondent requested damages for common law sort at wrongful termination of employment. She did not seek severance allowance and for the court on its own to change the pleadings and substitute the claim for unfair dismissal for that of wrongful dismissal and to grant the relief of severance allowance would be tantamount to giving a person an orange when that person asked for a mango." 4.3 The Respondents on the other hand cited Kankhwangwa_ and others vs. Liquidator, Import and Export (Malawi) Limited civil appeal No 4/2003 (Unreported). In this matter, the High Court reversed the decision of the Industrial Relations Court after it had awarded interest which was no specifically pleaded. The Malawi Supreme Court of appeal stated as follows. “We do not have q problem with the matter in which the claim for interest was pleaded in the Industrial Relations Court. We do not think that strict rules of pleading apply in that court and it is undesirable that they should, It is enough if the defendant appreciates what the plaintiff seeks from the Industrial Relations Cour. 4.4 The Respondents further argued that compensation for unfair dismissal is Provided for in section 63 (1) (c) of the Employment Act. The section provided that such Compensation must be that which a court considered just and equitable considering all the circumstances of the case. That compensation is at the discretion of the court, 4.5 In conclusion the Respondents argued that a court has power to cushion inflation as well as devaluation of the kwacha when making an award. They cited Chawani vs. Attorney General MSCA Civil Appeal No 18 of 2002 (Unreported and Frackson Chitheka vs Attorney General (Ministry of Finance) Civil Appeal No 67 of 2008 (Unreported). 5.0 The Law ee 9.1 The burden and standard of proof. The burden and standard of proof in civil matters are set out at the beginning of the trial by the state of pleadings remaining Uncharged throughout the trial. He who alleges the existence of certain facts must be the first to prove his case as aq positive is easier to Proof than a negative. See Miller vs. Minister of Pensions (1947) AUER 372. 5.2 The issue of compensation is set out in section 63 (1) (c) of the Employment Act. The section provides that such Compensation must be that which a court considers just and equitable considering all the circumstances of the case. That compensation is at the discretion of the court. 6.0 The Finding with the Appellant on the issue of pleadings when it comes to matters in the High Court. | cite with authority Banja lq Mtsogolo vs. Harriet Chiomba MSCA Civil Appead! No 33 of 2008 (Unreported) in that matter Tambala SC JA stated. “We are unable to believe that granting an effective remedy is to give a litigant a remedy which was not been requested in their pleadings. In the present case the Respondent requested damages for common law sort at wrongful termination of employment. She did not SEeK severance allowance for the court on its own to change the pleadings and substitute the claim for Unfair dismissal for that of wrongful dismissal and to grant the relief of severance allowance would be tantamount to giving a person an orange when that person asked for a mango." 6.2 Unfortunately for the Appellant, the strict rules of pleadings do not apply in the Industrial Relations Court. This is now settled law. The Malawi Supreme Court settled this matter in Kankhwangwa and others vs. liquidator, import and export (Malawi) limited, Civil Appeal No 4 of 2003 (Unreported). “We do not think that Strict rules of pleadings apply in that court (Industrial Relations C ourt) 6.3 Based on the authority of this judgment | fail to Understand how the Appellant came to this court and argued that the court below went outside the pleadings when it made its order on assessment. erred in uplifting the awards to SO percent. In my considered view the court below had the discretion to consider what was just and equitable by looking at the all 6 Used outside the ambit of the law. 6.5 Mzikamanda J. as he then was stated in Frackson Chitheka vs Attorney General Civil Appeal No 67 of 2008 (Unreported) opined as follows. "As will be seen the issue of compensation for unfair dismissal is a matter governed by the law with the discretion of the court built in......... in assessing Compensation for Unfair dismissal the court takes in account q number of factors. As regards the boost by 100 percent that was entirely in the discretion of the lower court considering the devaluation and the rate of living at the time. ! confirm that 100 % boost. 6.6 This appeal in my Considered view was jill conceived. It was simply intended to stop the Respondents from enjoying the fruits of litigation. It should not have seen the light of day in our court. | therefore confirm the 90% uplifting. | dismiss the Appeal in its entirely with costs to the Respondents. Pronounced in Open Court at Bla © Republic on 21st May, 2018. - —— Dingiswayo Madise JUDGE