Kamwana v The Minister of Education Science and Technology (Civil Cause 1623 of 1994) [1994] MWHCCiv 31 (25 October 1994)

IN THE H IGH COUR'.r O? MALAWI PRINCIPAL REGISTRY CI VIL CAUSE NO. 1623 OF 1994 BETWEEN : RO SE KAMWANA. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . PL AINTIFF AND THE MINISTER OF EDUCATION SC IENCE AND TECHNOLOGY . . . . . . . . . . . . . . . . . . . DEFENDAN T CORAM : KUMANGE , ACTING ;JUDGE Nampot a, Couns e l for the p laintiff Nyi rend a, Off ic ial Interpreter ; I -.: • ·-,··•· By a n o riginat i ng s ummons the plaintiff, a prima ry s chool RUI,ING t eacher b rin gs this action against her employer, the Minis try of Educatio n et c seeking some declaratory o r ders so as to enf orce p erforma nc e of th e c ontract of employment. The summo ns wa s s upporte d by her aff i davit. Having b e en satisfi e d tha t se rvice o f proce s s was duly e f f ec t ed on the defendant minis t ry , o rdered , purs uant to Orde r 35 Rule 1 of the Rules o f Supreme Court , t ype of e vide nce th a t Mr Nampota, Counsel for the p l c:1i nt.if f t endered , wa s i n no way different from that contain e d in t he a ffidav it , an d only o ne exhibit was attached to it . Couns el made submi ss ions in support of the plaintiff's ca s e . A syn ~>psis o f the nature of th e remedy she is seeking from the cou rt i s of t he fo J.l o win g de c la r ator y orders:- t h at t he case be h eard in absence of the def e ndant. The I (a ) That s he is s t ill an employee of the Gove r nment in th e te a ch i ng p r o fessi o n. (b ) Tha t sh e b e r e tired on me d i cal grounds as per h er doctor's a dv ic e. (c ) That she be p a id aJ.l her du e s f r om Ja nua r y 1 993 when th e d ef en d ant stopped paying her saJ.ary, plu s h er re ti r eme n t du e s. (d ) Th at what. e ver money will be found due und e r (c) above in terest at t h e normal bank lending r at e b e pai d on • 1- l .·c.. . i . (e) Costs for th i s action. - 2 - I must admit that this action though appears to be s i mpl e, b ut upon analysing the substantive law vis-a-vis the adje c t iv al law, provokes a hair-splitting problem when one's mind va s s ilate s between th e two. The facts are as follows:- The plaintiff had worke d for a lmost two decades. Through natural upheavals she found that she had contracted a disease of consumptive nature. A p h ys ician's diagnos i s came up with positive results of pu lmon a ry t ub e rculo s is. Her physician at the Queen Elizabeth Centr al Hos p i tal advised h e r not to continue teaching. He also i nf ormed t he defendant about her health problems in a letter dated 1 3th Ma r c h 1991. sh ould be retired forthwith since the plaintiff always exp e ri e nc e d a lot of fatigue and some breathlessness du e to h er c o nsumptive condition. In that letter the doctor recommended that s h e Whether the Ministry replied to the physician or no t the Instead, however, the Ministry of pl aintiff does not know. Educ a t i on forced h e r to keep on working. By January 199 3 the abnve stat e d fatigue condition disabled her from teaching, and she t herefore stopp e d working in that month. The Ministr y conti nued paying h e r up to September 1993. The sweet juice then st opped flowing. She now leaves in utter abject poverty . Her fre quent efforts to persuade the Ministry to retire her a s per t h e d o c tor s recommendations was received with unpleasant and r ude remarks from the officials of the Ministry on Distri ct, Re gi o n a l a nd National level. She therefore had no cho ic e b u t to br in g this action for the above stated declarations. On the substantive legal observation, I totally agr ee with Mr Nampota's submission that the plaintiff's job was of th e type t h a t is p e nsionable under clause 1:815 (3) of The Public Service Re gu l ation s . By that clause a pensionable officer may re tire on me di ca l gr o unds if he/she has completed 10 years of continuo u s se r vi c e . At th e time the doctor made his recommendation ( as per ex hibit Rl) the plaintiff had completed 23 years of cont i n uous se r vice . Under clause 1:185:4 justice has been manifestl y shown by further providing that, even in cases where an employe e h as no t c omple t ed 10 y e ar s , the Minister may, in special c i rcumstan c es, award such pension or gratuity as it appear s app ropriat e to him so to do. He re is a sick lady who has put in 23 years of cont i nu ous se r v ice and i s met by a blatant stand of rebu f fal by her e mp loyer not to grant her any benefits despite this admir able p r ovi sion. in human de c ision is to force the plaintiff to continue wo rking as i f s he is indispensable at the school. It would app e ar the rea s on for such unfair an d Onc e a person falls sick and the disease contracted - 3 - t e rms of th e employment contract. i n statutes of variuos types and climaxed in t he Public appea rs to be one wh i ch is difficult to wipe out from a person, the b est an employer can do is to let that employee go an d rest. There must therefo r e be fair terminal benefits that wi ll flow fro m the servi c e c o n tract, th e terms are no secret at all. They are embodie d Servi c e re g ulations. Whosoever is behind such decision, u nless the p laint i ff is accused, charged and found, guilty of some offenc e , balk in g cl a ss of the executive. Secre tary for Educat i on s hould have the compassion to as sist such a te acher the very moment the doctor wrote the letter above capt i o ned. i s sailing i n the devils bandwagon of the bilking and I am of the opinion ~hat the If it is a c i vil Be fore making my fin a l decision over this matter, I would like to make a brief obs e rvation of the adjectival law. That is the l a w r el ating to the procedure. Ca ses brought against a Ministry, a department or a n y Public Of fice r are governed by The Civil Procedure (Suit s by or Again st th e Governme nt o r Public Officers) Act (Cap 6:01) . Although the nature o f cla i ms and _pr e sentation of evidenc e may not be different from ca s es involving private individuals , there is nonet heless one s i gnificant aspect worth bearing in mi nd by both bench and bar alike. It is section 4 of that Act. It partly read s as follows: "No s uit shall be in s tituted against the Government or a g ainst a public officer . . . . . . . . . . . . . . . . . . . until the expi r ation of two months next after notice in writi ng has b e en . . . . . . . . . . . . . . . . . delivered to or left at the o ffice o f th e Attorn e y Genenal, or delivered or left at the p ubli c officers office . . . . . . . . . . . . " The re are Common Law Cases and Statutory provision s in contract wh i ch restrict their enforcement unless the plain tiff If the pl aintiff first ma de a demand upon the defendant to pay. elect s t o institute legal action without making the prerequisite dema nd t o the defend a nt to pay, and should the defendant show to the co u r t that such a pr e requisite demand was never made, the act i on s hou l d fail. It should fail not due to substantive legal pri n ci ple but on the basis of a procedural defect. To me ntion a few the following cases can fail unless the rule to deman d is stric t ly ob s erved. ( a ) Bills of Exchange, promissory notes and ch e qu es, give n o right of action till a demand is first made (Bills of Exchange Act Section 45 to 48 and 92 to 93) . ( b ) A bank balance has been held not to become owing till t h e dep o sitor first claims to withdraw it from the Joachimson vs Swiss Bank Corporation (1 921) bank. - 4 - 3I< B 110. Arab Bank vs Barclays Bank (1953) 2 Q. B . 25 7. (c ) A bailer of chattels at will cannot sue for th e i r return until they have been demanded and refu se d - Beaman vs A. R . T. S. (1949) KB 550. The same applies to suit against a surety and an agen t c a lled upo n to ac count for funds. In aJ.l the above cases, 2s substantive legal pr i ncipl e , it i s a defence if an action is commenced without first de man din g p a y ment , and whether the form of demand is to be oral o r in wr iting , i t varies with each type of cases under review. A capable and i ngeneous counsel will first resort to the a d jectival as pect of such cases when it comes to testimo ny. The p l a intiff has to prove to the court that he made a dema nd o f t he s u bject matter of the ac t i o n before commencing action. Th e way t o prove this fact has to be done by tendering "the let ter of d e mand '' . Tha t letter must be exhibited . Failure to exhib it s u c h a letter may compel the bench to dismiss the action h o wsoever goo d the cla im may be. In the case now under review, Mr Nampota did not prove to It is a statutory requ irement me th i s pr oce dural requirement. u n d e r section 4 of Cap 6:01, that the plaintiff must first write a f orm of no tice to t he defendant. The notice must con tain the r el ief whi c h the plaintiff claims. c o n ta i n two facets . Firstly the nature of claim demanded, and s e condly , the intention by the pla intif f to commence action wit hin two mo nths from the date of that letter. It is n ot only o f procedura l convenience that such notice should be gi ven, but i t i s of practical necessity that a demand in form of n oti ce be ma de in writing to the defendant. wr itten , then "No action can be instituted". It simply me ans wh at it says. s ta tutory pro vision was not observed then the court cannot grant a n y relief to the plaintiff. If the court is informed in evidence that th e If such a letter has not been In practice such lette rs In this case Mr Nampota did not prove to the court wh ether If the case was properly defended, and that t h is action was commenced after the two months prerequi site n o tice was wr itten. s t atutory provision proved infringed, I would have thrown t he p l a intiffs cl aim all out. Since the case is not defended, I do n o t want to act on speculations . But to me, s t a tutory ru le of procedur e and any litigant suing the Stat e f u lly devoid of such demand notice, cannot succeed. He or she wi ll have to first prove his or her observance of this rul e. Th at ca n only be achieved by tendering the Notice itself a s an e x hibit . Coming to t he plaintiff's case it fal ls under th e a b ove unfort unate situation . I feel this i s a - 5 -· But s ince there is proof to the satisfaction of th e cou r t, that t her e was due s ervic e of process, and having heard no thing fro m the d e fendant, let alon e , his intention to defend, I hold the vi e w that the notic e was written and served before ac tion. I f an y t hi ng at al l to the contrary, I leave that to the defe ndant as an app e llate remedy. After all equity assist s only the v i gill a nt and not the indollent. Finally th er efore, I am of the view that the plaint iff has bee n a vi c tim of oppressive and inconsiderate policy. She must get the b e nefit of her claims. Consequently I order as fo llows:- (a) That the plaintiff is all along an employee un der the a uspic e s of the Ministry of Education, and tha t she s hould get her salary from January 1993 to dat e of her retirement. (b) That u n d e r the sanction of the doctors letter d ated 13th March 1991, the plaintiff must be retire d at least three months from the date of this judgment. (c) That up to th e date of her retirement the plai ntiff should b e paid her leave grant for the years s he never g ot it up to the date of h e r retiremen t . (d ) That all the plaintiff's retirement benefits b e pa i d up in accordance with Rules and conditions of t he Civil Se rvice Regulations. Th e p laintif f has claimed interest at the Bank's ru ling le nd i ng ra t e on all what will be found due. The plainti f f is c l a iming r e muneration, which will be in a form of salary. There is no way a n employer can p a y inte r est on arrears of sa l a ry unle ss t here is proof i n evidence that the defendant invested the money in some lucrative business. Here, the facts ar e d i f fer e nt. The plaintiff used to get money from the co n s olidate d fund. for m of investment. Furthermore Mr Nampota has submitted to the cou rt no authority to back up this claim and I dismiss it. I do not think that that fund is pu t in any Th e a c tual amount that may be found due to the pla intiff may be ca lc ulated by the defendant, failing which, be comp uted be fore th e Registra r . The ac tion s ucceeds with costs for the plaintiff. Decl a red and ordered in Chambers this 25th day of October 199 4. D SL KUMANGE ACTING JUDGE