Chaoloka v The Attorney General (Ministre of Finance & Economic Affairs) (IRC MATTER 1294 of 2022) [2025] MWHC 5 (3 February 2025)

1 THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT PRINCIPAL REGISTRY MATTER NO. IRC 1294 OF 2022 In the dispute between: SAMUEL CHAOLOKA (Representing himself and all other civil servants on contributory pension scheme)………………..………………….….……..…………APPLICANTS -AND- THE ATTORNEY GENERAL (MINISTER OF FINANCE & ECONOMIC AFFAIRS)……….….. RESPONDENT CORAM: TAMANDA C. NYIMBA : Deputy Chairperson Mr. Chancy Gondwe : Counsel for the Applicants Mr. Thabo Chakaka Nyirenda : Attorney General, for the Respondent R. Msimuko (Mrs) : Court Clerk RULING 1 This ruling should have been rendered much earlier than today. However, for reasons beyond this Court’s control and for which the applicants in the presence of their legal practitioner were fully apprised of off record, the decision could not be attained with the expected or ordinary dispatch. 2 By their motion filed under rule 25(1)(m)(i) of the Industrial Relations Court (Procedure) Rules (henceforward “IRC Rules”) as read with rule 16(1) of the IRC Rules, the applicants sought what they cited as an interim order/injunctive relief that the respondent should stop deductions from the applicants’ salaries in respect of a contributory pension scheme up until hearing and determination of their substantive action or until thorough consultations and justifications are made by the respondent in relation to the discriminatory nature of implementation of a contributory pension scheme on civil servants not least junior servants and those that were recruited in the civil service from a given period. 2 3 The applicants’ substantive action condensed background – as garnered from the applicants’ IRC Form 1 particularly in the section particularizing the alleged trade dispute – is as follows: 4 The applicants are civil servants on contributory pension scheme working in different Ministries and Departments of the Government. The respondent is legal advisor to the Government. The responsible Minister under the Pensions Act 2010 (henceforth “the Act”) is the Minister of Finance (hereinafter “the Minister”). 5 The Act was promulgated to provide for mandatory pension, and for matters relating to the supervision and regulation of pension funds and umbrella funds, and for matters connected therewith and incidental thereto. The Act gives powers to the Minister – in consultation with the Minister for Labour and the Registrar – to exempt any class or category of employers or employees from complying with the requirements of the Act. 6 In the year 2017, Government through the Ministry of Labour with or without the knowledge of the Ministries/Departments involved, introduced a mandatory pension contribution scheme allegedly without any justification nor consultations with the applicants. The idea was that those who were below 35 years of age at that time working in Government Ministries/Departments be deducted a sum of K5,000.00 every month for the lowest grade adjustable upwards automatically according to the grades and increment as a contribution towards their pension retirement package. The policy was also to apply to new recruits in all Ministries/Departments of Government. 7 It is asserted by the applicants that Government through the Ministry of Finance made an undertaking that after 5 years of consistent deductions, junior civil servants would access their pension but Government has decided not to honour the said undertaking. The applicants further allege that implementation of the mandatory pension scheme was discriminatory as it only targeted those civil servants below 35 years of age as well as new recruits despite the fact that all civil servants retire at the same mandatory retirement age of 60. 8 Thus, the applicants sought the following reliefs: (a) A declaration that implementation of the contributory pension scheme is discriminatory in relation to junior civil servants and as such it is an unfair 3 labour practice under sections 20(1) and 31(1) of the Constitution of the Republic of Malawi respectively; (b) Damages for unfair labour practice; (c) In the interim an Order that the respondent should stop deductions on the applicants’ salaries for the contributory pension scheme up until hearing and determination of this matter or until thorough consultations and justifications are made by the respondent in relation to the discriminatory nature of the implementation of the contributory pension scheme for junior civil servants and for those just being recruited in the civil service. 9 The third or final relief above is what the applicants have elevated to the motion subject of this Court’s ruling herein. 10 In arguing the motion, the parties deployed several arguments and counter-arguments. I express my profound gratitude to Counsel for their helpful oral and written submissions Nonetheless, as will become clear, it is pointless to comprehensively reproduce or cite the parties’ said submissions. I shall only summarize the more potent contentions (or those that ultimately influence resolution of this matter) in a sentence or two. 11 In that regard, in resisting the motion, the learned Attorney General Thabo Chakaka Nyirenda for the respondent, advanced the following grounds: (a) the applicants’ motion and suit cannot stand for failure to comply with section 4 of the Civil Procedure (Suits By and Against the Government and Public Officers) Act; (b) the applicants’ motion is irregular for failure to define the group or class purportedly represented with sufficient clearness and precision; (c) this Court does not have equitable jurisdiction to grant injunctions; (d) the applicants’ affidavit is irregular for passing off mere conjectures and/or speculating facts; (e) the applicants do not have urgent need to be protected through issuance of the Order they sought; (f) the applicant, Mr. Samuel Chaoloka, lacks mandate to bring an action on behalf of the junior civil servants; (g) this Court does not have jurisdiction to entertain constitutional questions; 4 (h) the applicants’ action is irregular for raising matters fit for judicial review and that this Court does not have jurisdiction to entertain matters fit for judicial review. 12 Essentially, this Court shall dispose of the motion herein as well as the applicants’ main suit by only considering grounds (a) and (h) as enumerated above. As will be appreciated from my reasoning to be let loose in a moment, a consideration of the rest of the remaining arguments (to wit, grounds (b), (c), (d), (e), (f) and (g)) would be an unwarranted overkill. 13 And so, in tackling the applicants’ arguments, I shall only focus on the arguments learned Counsel Gondwe marshalled in response to the respondent’s grounds (a) and (h). 14 Reacting to the respondent’s ground (a), learned Counsel Gondwe tersely argued that since the substantive matter was brought together with an urgent interlocutory application for interim relief (brought in terms of rule 25(1)(m)(i) as read with rule 16(1) of the IRC Rules) before hearing of the said substantive matter, there was no need or requirement for the applicants to issue a notice to the respondent as dictated by section 4 of the Civil Procedure (Suits By and Against the Government and Public Officers) Act before the applicants could commence the present proceedings. 15 Concerning ground (h), he similarly pithily contended that the substantive issues in the applicants’ main action are not challenging the decision-making process but rather implementation by the Minister (in relation to all junior civil servants and those who are just being recruited in the civil service) of the contributory pension scheme under the Act. That rolling out of the scheme has been rushed without any consultation and is perpetrating discrimination in the manner it is being implemented. 16 I turn to evaluation of the pertinent grounds in light of the applicable law. 17 Commencing with ground (a), the law in section 4 of the Civil Procedure (Suits By and Against the Government and Public Officers) Act is clear. It enacts that: “No suit shall be instituted against the Government, or against any public officer until the expiration of three months next after notice in writing has been, in the case of the Government, delivered to or left at the office of the Attorney General, and in the case of a public officer, delivered to him or left at his office, stating the 5 cause of action, the name, description and place of residence of the plaintiff and the relief which he claims.” 18 This statutory provision has been authoritatively construed at the highest level of our court hierarchy in a plethora of cases to the degree that it is now settled that failure to comply with section 4 of the Civil Procedure (Suits By and Against the Government and Public Officers) Act renders the action a nullity. To show this state of affairs, I extensively quote from one decision pronounced by the Supreme Court of Appeal in the case of Jumbe v. Kasema and Anor1. The Court said: “[….] it is mandatory that any person desirous of commencing a suit against Government has to comply with section 4 of the Act by giving what has overtime been referred to as the ‘Mandatory Notice.’ This Court in Dr. Bakili Muluzi v. The Director of the Anti-Corruption Bureau [MSCA Civil Appeal No. 17 of 2005 (Unreported)], made the following observations regarding failure to give notice before commencing proceedings against the Malawi Government: “According to section 9 of the Constitution, the responsibility of this Court is to interpret, protect and enforce the Constitution and all laws (emphasis supplied by us). This court is mandated to protect and enforce all laws which obviously include section 4 of the Civil Procedure (Suits by or Against Government or public Officers) Act. The appellant was therefore required to comply with Section 4 before commencing his action against the respondent.” This Court sees no reason why it should differ with the dictum above. The Court has also found the dictum of Chimasula Phiri J. in Kamanga v. Attorney General [1995] 2 MLR 687 very illuminating. He correctly noted as follows: “It is a known fact that Government is a colossal organization operating from Nsanje to Chitipa and Mchinji to Mangochi. The Attorney–General is based in Lilongwe. Notwithstanding that modern technology facilitates transmission of communication, there are still vast areas where this modern technology is still underdeveloped. The Attorney General is not and cannot always be present where a wrong is committed and may not even know of it until upon receipt of 1 MSCA Miscellaneous Civil Application 46 of 2023) [2024] MWSC 2 (11 January 2024). 6 notice. In such a case he has to get briefed. If no provision for notice existed, would it be prudent to expect Attorney–General to get briefed and prepare a defence within 14 or 28 days? I think not. Therefore, knowing that ethics require legal practitioners as officers of the court to assist the court and not to mislead it by sham defences, it is my view that in all suits against the Government there must be a prior written notice served on the Attorney–General.” This Court strongly agrees with this statement. It is adopted by this Court as its own. There is no choice by a litigant when it comes to commencing a legal action against government. It is mandatory that there must be a prior written notice served on the Attorney General’s office before instituting a suit against Government through the office of the Attorney General. The position is different where an aggrieved person is seeking a declaratory order from the court. There is no other conclusion than that section 4 of the Civil Procedure (Suits by or Against Government or Public Officers) Act is expressed in mandatory terms since the provision uses the word “shall”. This demands that any person who wants to commence an action against the Government through the office of the Attorney General has to comply with the said provision without fail. Additionally, the said provision has no exceptions. In spite of this provision, the Applicant commenced the action in the Court below against the Government without serving the office of the Attorney General with the pre-suit notice described under section 4 of the Civil Procedure (Suits by or Against Government or Public Officers) Act. This was contrary to one of the laws of this country. If this matter had come on appeal Court would not have hesitated to enforce and/or protect the said law and dismissed the appeal on that ground the action had been commenced in contravention of section 4 of the Civil Procedure (Suits by or Against Government or Public Officers) Act”. 19 This Court is bound by these expressions of the law. Thus, applying the foregoing authoritative statements of law to the present action, first, I cannot help to note that the applicants unequivocally admitted that they did not comply with section 4 of the Civil Procedure (Suits By and Against the Government and Public Officers) Act. The reason they advanced is that they did not see the need to meet the terms of section 4 because their substantive matter was brought together with an urgent interlocutory application 7 for interim relief before hearing of the said substantive matter. However, as per the law just laid bare, that admission totally unravels or annihilates the applicants’ action. 20 Succinctly put, section 4 of the Civil Procedure (Suits By or Against Government or Public Officers) Act cannot be wished away. It is mandatory that there must be a prior written notice served on the Attorney General’s office before instituting a suit against Government through the office of the Attorney General. By their own admission, the applicants are in blatant breach of this consequential statutory dictate. This means that the applicants’ present motion as well as their substantive claim whereon the motion was grounded are both a nullity culminating in dismissal thereof. I so rule. 21 Before I move on to consider ground (h), I notice that the Court in the Jumbe case2 – citing the case of The Democratic Progressive Party v. The Attorney General (On behalf of The President of Malawi)3 – stated that the rigour of section 4 of the Civil Procedure (Suits By or Against Government or Public Officers) Act is different where an aggrieved person is seeking a declaratory order from the court. 22 In this connection, it is this Court’s observation that, in their substantive claim, the applicants herein sought: “a declaration that the implementation of the contributory pension scheme is discriminatory in relation to junior civil servants and as such it is an unfair labour practice under sections 20(1) and 31(1) of the Constitution of the Republic of Malawi respectively”. Thus, it may be argued that since the applicants are pursuing a declaratory order in these terms, then they are excused from complying with section 4 of the Civil Procedure (Suits By or Against Government or Public Officers) Act. In my considered view, that cannot be true in the circumstances of the instant matter. My reasons follow. 23 It is significant to appreciate that, in their main action, the applicants are pursuing two reliefs only, namely the so-called declaratory order and damages for unfair labour practice. The third relief is the urgent interim order which I have just dismissed in company with its founding claim. 24 Now, when this Court critically examined the declaratory order the applicants sought, it became patently clear that such a declaratory order, if granted, would (without more) be totally unhelpful to the applicants in terms putting a stop to the alleged discriminatory 2 As above. 3 (Civil Cause 230 of 2021; Constitutional Referral 3 of 2021) [2021] 8 contributory pension deductions. If granted, the declaratory order would only be sensible when considered together with the applicants’ second relief of damages for unfair labour practice which prayer would seamlessly flow from a finding or “a declaration that implementation of the contributory pension scheme is discriminatory in relation to junior civil servants and as such it is an unfair labour practice under sections 20(1) and 31(1) of the Constitution of the Republic of Malawi respectively”. Aside from assessment of the damages – and because that is the only relief the applicants prayed for – no other relief would accrue to the applicants pursuant to the declaration being made. 25 In these circumstances and if truth be told, it would have been perfectly in order for the applicants to cast their first relief by simply citing unfair labour practice and alluding to the alleged lack of consultations or the alleged discriminatory manner in which the contributory pension scheme was implemented in respect of junior civil servants as foundation for the said unfair labour practice. As stated earlier, the relief of damages would then naturally spring from a positive finding on a charge of unfair labour practice. 26 In my considered view, there was no need for the applicants to frame the relief in terms of a declaratory order particularly when such a declaration (without more) was not going to change the status-quo in terms of cessation of the alleged discriminatory contributory pension deductions. 27 It appears to me that by seeking a declaratory order, the applicants were trying to disingenuously get around the constraints of commencing their action by way of judicial review which at the point they launched their main action was plainly unavailable to them as will be fully explained when I get to deal with ground (h) in a jiffy. 28 In effect, what this Court is really saying is that mere formulation of a relief as declaratory in nature in the manner done by the applicants herein is not enough to pass muster and circumvent the mandatoriness of the parameters of section 4 of the Civil Procedure (Suits By or Against Government or Public Officers) Act. In my considered opinion, the applicants characterized their first relief by using the word “declaration” to delude this Court to think that a bare use of the word would extricate the applicants from the straitjacket, so to speak, that is section 4 of the Civil Procedure (Suits By or Against Government or Public Officers) Act in so far as how it operates. 9 29 Finally, I come to the respondent’s ground (h) that the applicants’ action is irregular for raising matters fit for judicial review and that this Court does not have jurisdiction to entertain matters reserved for judicial review. 30 For starters, I am in every respect won over by the respondent’s argument in that regard. Again, my reasons follow. 31 It should be recalled that the applicants contend that the substantive issues in their main action are not challenging the decision-making process but rather implementation by the Minister (in relation to all junior civil servants and those who are just being recruited in the civil service) of the contributory pension scheme under the Act; that rolling out of the scheme has been rushed without any consultation and is perpetrating discrimination in the manner it is being implemented. 32 What is unambiguous (and this also comes out clearly from the applicants themselves), is that the said implementation by the Minister was an upshot of a decision the Minister made after exercising powers that are given to the Minister under the Pension Act. Put prosaically and rhetorically, how then can the applicants confidently say that they are not challenging the decision-making process when the applicants – in the same breath – also allege that they were not consulted. Surely, the allegation about not being consulted would be one of the bases, if not the only base, for faulting implementation of the contributory pension scheme which implementation unmistakably arose from a decision taken by the Minister after exercising his powers under the Pension Act. 33 To understand the point further, it repays to pay particular attention to the following short sequence of events: 34 First, it is in the parties’ papers, and also an indisputable fact, that after the Minister exercised his powers under the Act, implementation of the contributory pension scheme started sometime in 20174. In the second place, it is also an irrefutable fact that since the applicants instituted their action in this Court on 18th December 2022, it means they waited for more than a mammoth 5 years to challenge the (im)propriety of the said implementation. 4 October 2017. 10 35 In point of fact, this was the applicants’ disingenuity I made reference to earlier on above. Indeed, the applicants surely must have appreciated that the best course of action for them to challenge the alleged discriminatory implementation of the contributory pension scheme was to go by way of judicial review wherein they would have questioned the Minister’s decision-making process when exercising his powers under the Act by charging that the Minister acted unconstitutionally or unreasonably in the Wednesbury sense or illegally and ultra vires or in whatever way they desired to frame their judicial review action. 36 The applicants could have then prayed for reliefs such as a declaration that the Minister’s decision to implement the contributory pension scheme under the Act in the manner he did was unconstitutional; a declaration that the Minister’s decision was unreasonable in the Wednesbury sense; a declaration that the Minister’s decision was unlawful and ultra vires (if the applicants found no justifiable grounds in the way the implementation was effected); a like order to certiorari quashing the said decision (the period in question was before Courts (High Court) (Civil Procedure) Rules, 2017 came into effect hence my reference to the archaic terminology then in use); a like order to prohibition restraining the Minister from implementing the pension deductions; a like order to mandamus mandating the Minister to uniformly effect pension deductions without looking at the age of the civil servant or when they joined service; and an order for costs. 37 The efficacy of the foregoing reliefs cannot be doubted at all. Certainly, not only are these reliefs diverse but also highly far-reaching than the ones the applicants sought in this Court. 38 Actually, a case with circumstances close to the present matter is Mthinda and another (on behalf of other civil servants) v. Attorney General5. This was a judicial review application under Order 53 rule 3 of the now defunct Rules of the Supreme Court. It concerned review of a unilateral decision by the respondent to change the formula for calculating pensions and gratuity of civil servants. Thus, the applicants sought on behalf of themselves and nearly 300 others a declaration that the respondent’s decision of calculating pension and gratuity was ultra vires and unconstitutional and a like order of certiorari, quashing the said decision. The applicants also sought a like order of mandamus, mandating the respondents to base the calculation of pension and gratuity 5 [2011] MLR 191 (HC). 11 for the applicants on the old formula. The Court quashed the decision of the respondent for being invalid and illegal and made an order of mandamus. 39 Reverting to the matter under consideration, it is this Court’s strong belief that had the applicants borrowed a leaf out of the applicants’ book in the Mthinda case by prosecuting their case by means of judicial review, their action stood a realistic chance of success. 40 Demonstrating further on how convenient it would have been for the applicants to prosecute their matter by way of judicial review, the applicants herein are plainly not busy bodies and have sufficient interest as they were directly affected by the Minister’s decision in exercising his statutory powers under the Act. Equally, it is certain that the applicants would have been granted leave to commence the action to have the Minister’s decision judicially reviewed. 41 The single most insurmountable hurdle the applicants faced is that they needed to have instituted their judicial review action within 3 months of the Minister’s decision or implementation. With cogent reasons, the period may be extended but in this case the applicants sat on their rights for a whooping five years plus some months. 42 It seems to me that the applicants knew that they had no chance to overcome the limitation period of 3 months for judicial review actions hence instituting their claim in this Court, the Industrial Relations Court. Unhappily, this Court has emphatically exposed how the applicants’ fell short resulting in a further reason to dismiss the applicants’ motion herein and also the main suit on which it is founded. 43 These preceding sentiments on the respondent’s ground (h) reinforce my earlier determination in ground (a). Indeed, they also cumulatively substantiate this Court’s final determination dismissing the applicants within motion and the applicants’ main suit. 44 To wrap up, this forum is a Court of first instance. As such, a party aggrieved by the decision herein, it being a final order not only declining the prayer for urgent interim relief but also dismissing the applicants’ suit in the main, is at liberty to bring to bear its right of appeal to the High Court within the dictates of section 65 (2) of the Labour Relations Act. 12 Pronounced this 3rd day of February 2025 at IRC, PRINCIPAL REGISTRY Tamanda Chris Nyimba DEPUTY CHAIRPERSON