Malawi Savings Bank Limited (FDH Bank Limited) v Chikaonda and 211 Others (Miscellaneous Civil Application 75 of 2022) [2023] MWHCCiv 26 (25 January 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION MISCELLANEOUS CIVIL APPLICATION NO. 75 OF 2022 (Being IRC Matter No. 222 of 2016) (Before Honourable Justice Mambulasa) BETWEEN: MALAWI SAVINGS BANK LTD (FDH BANK LTD) ............. APPLICANT -AND- JUSTIN CHIKAONDA, EZEKIEL MANGANI & 210 OTHERS... .cccccescenccccnsencenennccceseesneesseeenenasee res eaeneneeas RESPONDENTS CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Alfred Majamanda, Advocate for the Applicant Mr. Obet Chitatu, Court Clerk ORDER MAMBULASA, J [4] Introduction The Applicant is secking a without notice order for suspension of assessment of compensation proceedings in the Industrial Relations Court pending an inter partes hearing of the same application. The application is said to have been taken out under Order 10, rules 3 and 4 of the Courts (High Court) (Civil Procedure) Rules, 2017 and under the Court’s inherent jurisdiction. The facts of this application are not complicated at all. The Respondents instituted legal proceedings against the Applicant in the said Industrial Relations Court, claiming among other things, compensation for unfair dismissal. On 13" April, 2022 the Industrial Relations Court delivered its judgment in favour of the Respondents and directed that the matter goes before the Assistant Registrar of that court for assessment of compensation payable to them. The Applicant being dissatisfied with the judgment of the Industrial Relations Court filed a Notice of Appeal on 28" April, 2022. The said Notice of Appeal has been exhibited to the present application. One of the Applicant’s grounds of appeal is that the lower court erred in law when it directed that the matter should go before the Assistant Registrar of that court for assessment of compensation. [7] [8] The Applicant states that there is no point for the Assistant Registrar of the Industrial Relations Court conducting the assessment of compensation because he does not have jurisdiction to do so in the first place and that secondly, any process or proceeding undertaken by him would, in law, be a nullity. For that reason, the Applicant applied for stay of assessment of compensation proceedings in the Industrial Relations Court and the Chairperson of that court declined to grant the order sought. The Chairperson then directed that the assessment of compensation proceedings should proceed before the Deputy Chairperson of the court. The date for the assessment of compensation is yet to be set, hence, the present application again for suspension of the same in this Court. Issue for Determination The only issue for determination before this Court is whether or not the order for suspension of assessment of compensation proceedings in the Industrial Relations Court should be granted pending the hearing and determination of the inter partes hearing of the same application? The Law The law on suspension of proceedings is well settled. There is no need to restate it here for reasons of brevity of this order.! It will certainly be borne in mind when coming up with a position in this application. | See for instance, Malawi Revenue Authority -vs- Nadeem Munshi Civil Appeal Cause No. 67 of 2013 (High Court of Malawi) (Principal Registry) (Unreported); Malawi Housing Corporation - 3 [10] [11] [12] In Premium Tama -vs- Mambala & Others’ the Supreme Court of Appeal for Malawi held that for as long as damages have not been quantified the judgment remains inchoate incapable of enforcement. To that end, parties should only appeal where the court has dealt with issues of both liability and damages to finality. The Supreme Court of Appeal for Malawi has maintained that position in other cases such as JTI Leaf (Malawi) Limited -vs- Kad Kapachika,’? Aon Malawi Limited -vs- Garry Tamani Makolo* and Toyota Malawi Limited -vs- Jacques Mariette.’ Of course, the approach taken by the Supreme Court of Appeal for Malawi has not been without criticism.° The Supreme Court of Appeal for Malawi has taken a similar approach even where a party has raised an issue relating to the question of jurisdiction of the court. In Almeida -vs- Almeida’ the court refused to hear an appeal against a preliminary decision of the High Court that it had jurisdiction over a divorce vs- Koman Franklin Nyasulu [2007] MLR 214; Mike Appel & Gatto Limited -vs- Saulosi K Chilima [2013] MLR 231 (SCA). 2 MSCA Civil Appeal No. 72 of 2016 (Unreported). 3 MSCA Civil Appeal No. 52 of 2016 (Sitting at Lilongwe) (Unreported). 4 MSCA Civil Appeal No. 16 of 2016 (Unreported). 5 MSCA Civil Appeal No. 62 of 2016 (Unreported). 6 See for instance, Khumbo Bonzoe Soko, “Introduction to Appellate Practice” A Paper presented at the Malawi Law Society Annual General Meeting and Conference at Sunbird Nkopola Lodge in Mangochi in the year 2020. 7 MSCA Civil Appeal No. 49 of 2017 (Unreported). [13] [15] petition. It held that the appeal was prematurely before it as the divorce itself and custody of children issues were yet to be determined by the High Court. Analysis and Application of the Law to the Facts In this application, the Applicant contends that it is aware of the position espoused by the Supreme Court of Appeal for Malawi but submits that a special circumstance herein exists. The Applicant’s appeal is different in that it deals with an issue of jurisdiction which is so paramount and cannot be ignored in order to achieve substantial justice in a matter. It is the Applicant’s further contention that, should the assessment of compensation proceedings proceed in the Industrial Relations Court, they are likely to be set aside on appeal. The court would have thus wasted its precious time and resources on proceedings that are a nullity and would also have allowed the Industrial Relations Court to proceed with undue regard to the law and would render the Applicant’s appeal nugatory. A question that has been lingering in the mind of this Court is, what purpose will the order being sought by the Applicant serve? This question must be answered because, if the order will be granted, what will be the next step in the proceedings? The Applicant would certainly not be able to prosecute its appeal in this Court because without the assessment of compensation proceedings taking place, this Court would not be able to entertain its appeal. There would also be no movement in the matter in the Industrial Relations Court as the judgment on liability alone would not be enforceable. The Respondents would be left without an effective remedy which would not be 5 the right thing to do. At the end of the day, granting the order sought by the Applicant would, to a larger extent, be rendered superfluous. It is trite law that a court cannot make an order that serves no purpose or that would be in vain. That should not be allowed, especially, when one considers that this matter dates back to the year 2016. [16] In short, this Court adopts the approach taken by the Supreme Court of Appeal for Malawi in these matters, notwithstanding that the same has been criticised in some quarters, Case management requires that this Court too, should also, not deal with piecemeal appeals arising from one and the same case. The Tama decision and others by the Supreme Court of Appeal for Malawi are legally binding on this Court. Even the question of jurisdiction which the Applicant treats as a special circumstance in this application, the Supreme Court of Appeal for Malawi settled it in the Almeida -vs- Almeida decision. Similarly, paramount as the question of jurisdiction is, it does not qualify the present application as an exception warranting it to be treated differently from the approach set and taken by the Supreme Court of Appeal for Malawi. The fact of the matter still remains that the Industrial Relations Court judgment on liability is an inchoate one, not capable of being appealed against to this Court until there is an order on assessment of compensation by that court. [17] Even the issue about the Chairperson of the Industrial Relations Court having no power under the law to modify, amend or vary the Deputy Chairperson’s judgment on liability that the assessment should now proceed before the Deputy Chairperson and not the Assistant Registrar as initially ordered by the ® See generally, Attorney-General -vs- Guardian Newspapers Lid (No 2) [1990] 1 AC 109 and Rep -vs- Nasoni [1990] 13 MLR 400. [18] [19] Deputy Chairperson could also be taken up on appeal when there is a final judgment. This Court is quick to observe that even if the appeal by the Applicant were to succeed on the point, in the end, either the Deputy Chairperson or indeed the Chairperson ofthe Industrial Relations Court would still have to do the assessment of the compensation anyway, and could as well do it now, regardless of the impugned order by the Chairperson. Finding and Determination {n view of the foregoing, it is this Court’s finding and determination that granting an order suspending the assessment of compensation proceedings in the Industrial Relations Court would not serve any useful purpose. It would actually occasion an injustice to the Respondents as they would be left without an effective remedy, in addition to the matter just stalling, on one hand. On the other hand, there would be no risk of injustice to the Applicant, as it would still be able to file and prosecute its appeal after the assessment of compensation would have been carried out by the Industrial Relations Court. Therefore, the justice of this case, lies in declining the order sought by the Applicant. It is so declined. Made in Chambers this 25" day of January, 2023 at Blantyre, Malawi. pbs. é beg M. D. MAMBULASA JUDGE