Mtitima & Ors. v Electricity Supply Commission of Malawi (343 of 2005) [2018] MWHC 1123 (2 July 2018)

,...------- HIGH COURT l ............ ~ ,_18RlA.fl"f° } IN THE HIGH COURT OF MALAVJI LILONGWE HIGH COURT MATIER NUMBER 343 OF 2005 BETWEEN JOHN MTITIMA AND OTHERS-------------------------APPELLANTS AND ELECTRICITY SUPPLY COMMISSION OF MALAWI (ESCOM} LIM ITE D----------------------------------------------------RES PON DE NT CORAM: HON. JUSTICE M. C. C. MKANDAWIRE Zapinga/Nkhowani, Counsel for the Appellants Ms Sally Mtambo/Kambauwa, Counsel for the Respondent ltai, Court Interpreter RULING 1. This is an inter-parte summons on application for the discharge of a stay of execution of a judgment. The summons has been filed by the appellants who are John Mtitima and Others . In support of this application, the appellants have fi led a sworn statement and skeleton arguments. The respondent who is the Electricity Supply Commission of Malawi (ESCOM) Limited has filed a sworn statement opposing the application . 2. The facts of the application as per the appellants' sworn statement are that the appellants had filed a case against the respondent in the Industrial Relations Court claiming damages for unfair termination of employment. Having lost the case in the Industrial Relations Court, they appealed to the High Court where they were successful. The Senior Deputy Registrar thereafter assessed the damages. What follows hereunder is the chronology of events. 3. On 30th June 2016 the court passed a judgment in favour of the appellants for MK31, 265, 599.32. The respondent applied to have the judgment varied and this is clear from exhibits JZl and JZ2. It is however very clear from these documents that the parties had reached a consent agreement that the claim of unfair labour practices had to come for further assessment and that the parties had to file submissions within 14 days from the date of the order. 4 . On 25th April 2017 both parties appeared befo re the Senior Depu t y Regist ra r. The respondent however successfully applied to have the matter adjourned so that the appellants should give oral testimony. 5. On 5th May 2017 the respondent filed a notice of preliminary objection to the parading of witnesses to prove the figures filed by the appellants. The notice is JZ3 . 6. On 14th of June 2017 the court ordered that the appellants were to be deemed as permanent employees of the respondent accordingly the court had to assess the difference in salaries between the appellants and their colleagues of the same grade . This resolved paragraphs 2 of the Orders JZl and JZ2 . 7. On 3th December 2017 the court delivered its ruling on the assessment. 8. On 3rd of January 2018 the respondent obtained a stay of execution of the court order dated 3th December 2017 on the basis that they had appealed the matter. 9. It is argued by the appellants that the reason for the appeal are the same gr(_?unds that the appellant had raised in the lower court ~hich reasons were challenged and the order of the court that the appellants are permanent employees of the responde nt was not challenged. 10. The respondent in its response opposing this application has materially agreed with the chronology of events as narrated by the appellants. 11. The respondent however says that the point of departure is page 6 of the Judgment of the High Court. The respondent maintains the position that the claim for unfair labour practice was introduced during assessment proceedings in that it has never been part of the issues in the Industrial Relations Court and during the hearing of the appeal. 12. As a court, I have had the opportun ity to loo k at !RC For m 1 which is the commencement document in the Industrial Relations Court . It is very clear from that Form that there was indeed no claim of any relief for unfair labour practice as a standalone relief. I have also looked at the judgment of Mwale J dated 21st of August 2014 which judgment was in favour of the appellants . In this judgment, the judge found that the appellants were unfairly dismissed and that damages for unfair dismissal as well as the amount of severance allowance payable are to be assessed by the Registrar. The issue about damages for unfair labour practices is a very vexing issue in this matter and deserves serious scrutiny as to how it had been brought on the scene. 13 . Much as I do agree with the appellants' counsel that a successful litigant should not be deprived of fruits of his/her litigation, I however find that this is a proper case where execution of the judgment should continue to be suspended. I therefore decline to discharge the order. The application is therefore dismissed Each pa rty to meet its own costs . MADE THIS DAY OF JULY 2018 AT LILONGWE M. C. C. MKANDAWIRE JUDGE 3