Portland Cement Company v Chikhaza (3 of 2010) [2010] MWSC 14 (27 July 2010)

JUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE M. S. C. A. Civil Appeal No. 03 of 2010 (Being Fligh Courl Civil Cause No. 1581 of 2006) BETWEEN: PORTLAND CEMENT COMPANY (1e7 4) LTD. .. .. APPELLANT -AND- GILTON CHAKHAZA . RESPONDENT BEFORE: THE HON THE CHIEF JUSTICE, L. G. MUI\LO SC, JA THE HON. JUSTICE NYIRENDA SC, JA THE HOI.{. JUSTICE TWEA JA lJlaya, Counsel for the Appellant Mpaka, Counsel for the Respondent Mr Balakasi - Official interpreter JUDGMENT Twea JA, This appeal is peculiar. The respondent brought an action claiming unfair disrnissal and defamation against the appellant rvho was his employer. There \^/ere nulnerous applications in the Court beiow between the filing of the case, on 12tl'May, 2006, and the colnmencement of trial, on 9tl'July 2007. When trial commenced on 9th July, 2009 both parties raised preliminary issues. What is of relevance to this appeal is the application by the defendant then, that the matter was essentially a labour matter and should be transferred for trial in the Industrial Relations Court, hereinafler referred to as the IRC. It rnust be mentioned that the objection to the iurisdiction of the court below was somewhat ambivalent, so too was the response thereto. Be this as it rnay the court in its order said:- "l would therefore direct as foliows: in vieu, of the fact that the case herein has mixed claims. part of which the IRC has no jurisdiction while this Court has jurisdiction on both clairns and within the spirit of avoiding multiplication of actions, the matter should proceed for trial before this Court and as regards to costs the court will at its final determination of the case invite the parlies to address it on costs and an appropriate order should be made of course bearing in mind that if the labour related claims were to be tried in the industrial Relations court no order as to costs would have been made. Signed (Potani .l) 9.0.07 This extract was not part of the record of appeal. This court had to resoft to the trial record to understand the appeal and cross appeal. It is also imporlant to rnention that the trial record was not transcribed; the above quotation was therefore, derived directl),from the Judge's notes. The trial proceeded as directed by the Judge in the couft belou'. The Judge delivered his judgrnent on 29"' May 2008 in favour of the plaintiff on both claims. Altirough the record of appeal is silent, it shows that soon after the judgrnent the parlies raised the issue of costs with the Judge. He made the follorvins order:- "On costs, in vieu' of the directions made by the couft at the commencement of the hearing of this matter, the parties are at liberty to address the court on that aspect bearing in mind that the plaintiff s claim in relation to the termination of his employment should ordinarily have been blought before the Industrial Relations Court in which b1, law. costs are not recoverable and that this Court onh' entertained the matter as it also has a claim for defamation over which the Industrial Relations Coutl has not jurisdiction". The case was adiourned generally. for counsel to make submrssrons on costs. It is not ciear what happened thereafter, but the record of appeal shows that the parlies appeared before the Assistant Registrar for assessment of damages. The order of assessment was delivered on 17"' December 2008. The record of appeal is unclear as to what happened tl'rereafter. However, the trial court record shows that the parties appeared before the courl belou, and the Registrar on several occasions in respect of: the award of compensation, matters of enforcement, the true construction of the order of assessrnent for compensation, consent order of cornpensation paid into court and payment out of cour'L. Last but not least, the record of appeal shows that the parties appeared before the trial Judge and addressed him on the issue of costs. The Judge deliveled his ruling on 7"' October, 2009. In his ruiing the Judge below examined the law in relations to costs in respect of cases that could have been brought in tire lower courts under Sections 3 0 and 3 i of the Courts Act and Secti on 7 2 of the Labour Relations Act, which restrict award of costs in the Industrial Relations Court. In the end the Judge rnade the following order - "Thepresent case is such that if it were not forthe claim on defamation, the Coufi would have insisted that the proceedings should be before the Industrial Relations Coufi in order to give full efficacy to Section 110(2) of the Constitution and in line with the prevailing judicial policy, so to speak. in such a scenario, the piaintiff would not have been entitled to any costs as per Section 72 of the Labour Relations Act. The inclination of the coufi is tl-rerefole that the just and fair rrallner of exercising its discretion on costs wouid be to award the plaintiff fifty percent of the costs of the proceedings a1 High Court scale representing costs incidental to the claim on dei-amation and such costs to be taxed by the Registrar if not agreed by the parties". On 21" October 2009 the defendant filed notice of appeal against the Judge's ruling. The part of the ruling that the appellant was complaining about was the order to bear "50oh of the costs". The appellant filed four grounds of appeal. However, at the hearing, three were u,ithdrawn. The only ground that remained read as follows: "3.3 The learned . Tudge erred in holding that the defendant is liable to pay 50% of the party and party costs". This leaves us in no doubt that the only issue is costs. The plaintiff cross-appealed on 22nd November, 2009. The plaintiff/respondent complained against the whole decision of the courl below. The cross appeal was on tiilee grounds: (a) that the court belorn' failed to apply Section 30 of Couft's Act (b) that the courl below erred in holding that had it not been for the claim on defamation trial would have been had in the Industrial Relations Courl (c) that the lower Courl erred in puryorting to enforce polic), decisions at the expense of the rights of the parlies. The respondent prayed for full or enhanced or confirmation of costs and dismissal of the appellant's appeal. When the appeal was called this courl intimated that it had difficulty in appreciating what was at issue and also the referring back to various directions, rulings, judgments and orders. The parties indicated that what was in issue was the "50o/o costs ordel'" by the court belou, and that referring back to various directions, rulings, judgments and orders was essential in supporl of their arguments. This Court allowed them to proceed to be heard in the hope that issues could become clearer. Unfortunately, it transpired that both parties were unhappy with the order for costs, according to their understanding. This Court indicated that the issues raised were pre-mature and most likely that both parties had rnisinterpreted the Judge's order. After duly listening to the parlies, it is our finding that the appeal and cross-appeal must fail. First, we will consider the referring back to various directions, rulings, judgments and orders in the court below and then the appeal against costs. Notwithstanding the stated grounds of appeal, the parties attacked the decision of the courl below directing that trial on both claims: unfair dismissal and defamation, be in the High Court. We would have rnade comrnents on this direction and reasons thereof had the matter been properly before us. More par1icularly, in respect of Section 43 of the Constitution, the need to give the real reasons for tl-re dismissal of an employee, the reasonableness of employer's conduct and how an employer arrives at and communicates a decision to dismiss an employee. In our view the cases of Juwadu V Malawi Revenue Authoritv 2005 MLLR 397, Ahernetltt, V Mott, Hav ancl Antlerson 1974 ICR 323. CA and F. F. Chsvula V The Attornev General Civil Cause 10 of 2009 would have been instructive. Be this as it *uy, the direction in issue was given on 9'h July 2007 none of the parties appealed. The judgment on the issues was given on 29"' May 2008. We would have made comments on the judgment had the matter been properly brought. Some such issues worth commenting on have already been referred to above. However, it is significant to note that the internal communication of corporate decisions and what amounts to publication thereof was not seriouslv considered when determinins the claim for defamation. All we can say for now is that there was no appeal and that, since then, several orders have been made on the.judgment. By attacking the decisions made before the order for costs the parties were, in effect, appealing to this Court to reverse them. We find that such a procedure is not suppofted by Section 23 of the Supreme Courl of Appeai Act. If either of them was aggrieved they should have appealed against the direction, within 74 days, or the judgment, within six weeks thereof, or, at least, sought leave to appeal out of time. None of them did any such thing as far as the record of appeal is concerned or from perusal of the record of the trial couft. Allowing the parlies to proceed in such a manner would therefore be contraryto Section 23 of the Supreme Court of Appeal Act and tantamount to allowing an appeal through the back door. It is impoftant for us to point out that this is a matter of jurisdiction. it does not matter that both parties are complaining about the same issue. This Courl has jurisdiction to hear and determine only such appeals as are regularly and procedurally brought before it. Jurisdiction, being a matter of law, cannot be confered b1, agreement or acquiescence of the par-ties. We now come to the issue of the appeal against the order for costs. Section 21 of he Supreme Court of Appeal Act provides as follows - "2L An appeal shall lie to the Court fiom an,v judgment of the High Court or any Judge thereof in any civil cause or matter:. . .. And provided further that no appeal shall lie witliout the leave of a member of tire Court or of the High Court or of the . Tudge wiro made or gave the .judgment in question where the judgment (not being a jr.rdgn'rent to which Section 68 (1) of the Constitution applies) is - b) An order of the High Court or any .ludge thereof made with consent of the pafties or an order as to costs onll, r.r'hich bv iau, is left to the discretion of the High Court". It is important for us to point out that the Section 68(1) of the Constitution referred to in this Section refers to the 1965 Republican Constitution which provided for appeals that would lie to this court as of right. It is also imperative to note that Sections 68 - 72 of the New Constitution, which dealt with the Senate, were all repealed by Act No 4 of 2001. Section 21 of the Supreme Cour"t of Appeal Act is amply supported by Order 59lIl30 and 31 of the Supreme Courl Practice Rules" which esuallv provide that no appeal shall lie without leave of the court below or any Judge thereof against a consent order or an order for costs only. Our law and rules are clear therefore, that this Court has no jurisdiction to entefiain an appeal against costs oniy where the Judge exercised his discretion judicially and has not given leave to appeal or where leave to appeal has not been obtained. The exceptions to this is where the Judge did not exercise any discretion at all or exercised such discretion otherwise than judicially: Scherer V Countine Svstents Ltd [19861 2 ALL E. R. 529. This is what is known as the "Scherer principle" - The procedure in such a case is that the appeal is set down after the notice of appeal is sen,ed. The onus then iies on the appellant to show that the appeal, sought without leave, falls under the principle. This would be heard as a preliminary issue before the substantive appeal. When this appeal rvas called we enquired from the panies as to the nature of their appeals and gave them the benefit of doubt. However, it is our view that the parties did not establish that the Judge in the courl below failed to exercise his discretion or that he exercised his discretion otherwise than judicially. Consequently, we find that this Court has no jr-rrisdiction to hear such appeal against costs. As we observed during the hearing, the matters before us may have been brought prematurely or that the parties are labouring under a misinterpretation of the Judge's order. Be this as it rnay, the matters are still within the jurisdiction of the Court belou,. It is our iudgment therefore, that both the appeal and cross-appeal rnust fail for being irnproperly brought before this Court. We make no order as to costs. Pronouncecl in Open Court this 28'r' day of July 2010 at Blantyre. L. G. Munlo SC, CHIEF JUSTICE A. K. C. Nyirenda SC, JA. Twea JA