Opportunity Bank of Malawi Limited v Chiphwanya and Others (Civil Appeal 24 of 2019) [2020] MWHCCiv 48 (29 January 2020)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL APPEAL NO 24 OF 2019 (Being IRC, Mzuzu Registry, Matter Number.116 of 2016) BETWEEN OPPORTUNITY BANK OF MALAWI LTD......---0s0eeeeeeeeer eee APPELLANT -AND- HAROLD CHIPHWANYA AND OTHERS. ......-.:eeeeeeeeeeeeee RESPONDENTS CORAM: Honourable Justice T. R. Ligowe Ligowe J RULING L. In the order I made on 10" January, 2020, I directed that the appellant will be at liberty to apply for stay of execution after the order on assessment of compensation is delivered by the lower court. And I directed that application to be made before the lower court first. 2 The order on assessment of compensation has since been made on 21* January, 2020 and the appellant did file an inter parties application for stay of execution of the same which has been given the date of 3" February, 2020 for hearing before the Registrar of the Industrial Relations Court. Meanwhile the Industrial Relations Court issued a warrant of execution for the order of assessment of compensation on 27" January, 2020 which has already been executed by the sheriff. The appellant sought an exparte order for stay before the Registrar of the Industrial Relations Court but he declined it today. I would like to observe that Rule SA of the Industrial Relations Court (Procedure) Rules provides for judicial functions of the Registrar and Deputy Registrar of the Industrial Relations Court that they can transact all such business and exercise all such authority as may be transacted and exercised by the Chairperson or Deputy Chairperson in chambers. The rule provides for exceptions, and that is not my concern at the moment, but sub rule (2) provides that any decision of the Registrar or a Deputy Registrar may be reviewed by the Chairperson or Deputy Chairperson on application by a party to the matter or proceeding where upon the Chairperson or Deputy Chairperson may discuss the application or confirm, set aside, or vary or amend the decision of the Registrar or Deputy Registrar. The Chairperson or Deputy Chairperson may also determine the matter as if it was coming before him or her in the first instance and give such decision as the case may require, or may refer the matter back to the Registrar, or Deputy Registrar with directions for further consideration. This in my view was the appropriate way to dealing with the situation in the present matter before coming to the High Court, I would not have intervened but for the manner execution has been done and exparte stay of execution has been declined by the Registrar of the Industrial Relations Court. 10. 11. 12. L5. 14. 15. His own order of assessment of compensation delivered on 21° January, 2020 states that “the amounts ordered should be paid by the respondent within a reasonable time or the parties can agree on the mode of payment.” 1 understand this as meaning that a warrant of execution would not issue immediately until after a reasonable time and the parties have had the opportunity to discuss installments. Despite that, the applicants in the Industrial Relations Court filed a warrant of execution on 24" January, 2020 and the Registrar issued it on 27" January, 2020 and it was executed the same day. This is contrary to the very spirit of the order on assessment of compensation regarding the manner the money needed to be paid. I will for this reason grant the order of stay of execution pending the inter parties hearing on 3" February, 2020. In the sworn statement in support of the application before me now, counsel for the appellant has raised issues regarding the conduct of the Registrar with one of the parties to the case before him bordering on breach of ethical standards. I will for this reason order that the inter parties application be brought before the Deputy Chairperson on 3™ February, 2020, with the hope that he will objectively deal with the allegations. Made in chambers this 29"" day of January, 2020.