Winga v Electoral Commission (Civil Cause 2707 of 1999) [2002] MWHC 86 (29 May 2002)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 2707 OF 1999 BETWEEN: STUART Wy tiGiecinne awe xerear tees eaverenemenecas DEFENDANT -and- THE ELECTORAL COM MISSION eva: svsa renee ana verornes DEFENDANT CORAM: HON. JUSTICE A. C. CHIPETA R. M. Msisha, SC; of Counsel for the Plaintiff Chisanga/Mhango; of Counsel for the Defendant Chingana (Mrs); Official Interpreter RULING The plaintiff has in this case sued the defendant for damages for breach of contract of employment and at the same time he has sought declarations to the effect that his dismissal from employment is a violation of his contractual and constitutional rights. Following commencement of this action the plaintiff took out a Summons for Summary Judgment in the matter, alleging that the defendant has no defence to the plaintiff's claim and that the defence it served, following its indication of intent to defend the action, is a mere sham regard being had to the Electoral Commission Act. In his ruling on this Summons, which was in the course of hearing converted to a different application altogether, the learned Registrar held in favour of the plaintiff. The defendant has expressed dissatisfaction with this ruling and has consequently appealed to this court with a view that the learned Registrar’s ruling be reversed. 2 With reference to Section 8 of the Courts Act and the High Court (Exercise of Jurisdiction of Registrar) Rules made under it and to Order 58 rule 1 of the Rules of Supreme Court, I am mindful of the fact that an appeal from the Registrar’s decision in Chambers comes to me by way of rehearing. This means that I have to treat the application the Registrar handled as if it was coming before me for the first time. In such case, as Note 58/1/2: under Order 58 rule 1 of the Rules of Supreme Court makes it quite clear, I am in no way bound by the decision given by the learned Registrar although, as I grapple with the case, I do need to give it the weight it deserves. It is therefore my obligation to look at the matter with an open and free mind as I am not in any way fettered by the Registrar’s earlier exercise of discretion in the determination of this Summons. The brief facts of the case are that the plaintiff was on 1st October, 1998 appointed Chief Elections Officer by the defendant for a term of five years. He duly took up that appointment, but within his first year of office, specifically on 27th May, 1999, he was advised by the defendant of the termination of his employment with it. In relation to these facts it is the plaintiff's stand in the case and in this Summons that, per Section 12(2) of the Electoral Commission Act (Act No. 11 of 1998) which provides that the Chief Elections Officer shall hold office for a period of five years, the defendant has no power to terminate the plaintiff's appointment as it has purported to do. In reaction to the same facts, however, the defendant, although it did not file any affidavit in opposition, argues that it acted quite lawfully in so terminating the plaintiff's employment before the expiry of five years and that it is the plaintiff who has misconstrued the law in this regard. On its part the defendant has pleaded in aid Section 12(1) of the Electoral Commission Act, which provides for written terms and conditions in relation to this same post, as well as the contract of employment the parties herein entered into, which, inter alia, makes provision 3 for termination of this employment on the giving of some specified notice or on payment in lieu of such notice. I observe that as drawn the Summons for Summary Judgment was not aligned with any particular legal provision although I think the Registrar’s ruling rightly ascribed it to Order 14 of the Rules of Supreme Court. I further observe, as the notes of the Registrar and his ruling indicate, that it was during the hearing of the Summons that learned Counsel for the parties reached an agreement to have the Summons herein treated as if it was taken out under Order 14A of the Rules of Supreme Court. This I note the court duly agreed with and that it accordingly hereafter proceeded on that basis. My study of the notes of the hearing before the Registrar has revealed that the plaintiff began by fully arguing the Summons herein as one for Summary Judgment. It was only as the defendant was commencing its arguments against the Summons that its learned Counsel, Mr Chisanga, expressed the view that the case hinges on the interpretation of Section 12 of the Electoral Commission Act and that in his view therefore the application should instead proceed under O.14A of the Rules of Supreme Court. At this point learned Counsel for the plaintiff, Mr Msisha SC, agreed with the proposal from the defence and the court then sanctioned progress of arguments on that new basis. Initially when I observed this I was apprehensive about whether it was regular to alter an application just like that as happened herein, especially when nothing like amending the Original Summons followed. Order 14A rule 2, however, speedily stepped in to resolve this anxiety as, it will be noticed, it even permits applications of this sort to be made orally and in the course of any other interlocutory application to the court, including obviously a Summons for Summary Judgment as is the case here. 4 This being the case Iam amply satisfied that it was quite legitimate for the parties and the Registrar to so change the type of application before the court as they did. Accordingly as I deal with this appeal I proceed on the basis that although as filed the Summons before the Registrar was one for Summary Judgment, he in the end determined it as if it was a Summons for disposal of a case on a point of law, and that the appeal herein being based on such determination, I should and will proceed on the premise that Order 14A is the parent legal provision for purposes of my determination of this appeal. I did already mention that the Registrar’s determination of the application before him lay in favour of the plaintiff. In the course of pronouncing his decision the Registrar first agreed with the parties that in terms of O.14A rule 1(a) and (b) of the Rules of Supreme Court the construction or interpretation of Section 12 of the Electoral Commission Act would determine this action with finality, subject only to any possible appeal and that there was therefore no need of going into a full trial. He next concurred with the plaintiffs view that when Section 12(2), which fixes the tenure of office for the post in question at five years, is read together with Section 12(1), which empowers the Electoral Commission to stipulate terms and conditions for that same post, the powers so conferred on the commission to stipulate terms and conditions should only be understood to relate to and to be restricted to aspects other than tenure of office. He then held that when the defendant included in the contract of employment under Clause 11(1) of the Schedule to the agreement provision for termination of the employment herein on notice or on some payment in lieu of notice, it acted ultra vires its powers. He thus in consequence concluded that the termination of the plaintiff's employment was invalid and that it amounted to a breach of the contract between the parties for which the plaintiff was entitled to damages. The defendant’s appeal charges the Registrar with the making of various errors of law in his ruling and at its end prays for a reversal of the said ruling. Actually the notice of 5 appeal contains six grounds of appeal as hereunder set out. It will be noted that in general the grounds filed herein attack the interpretation the Registrar gave to Section 12(2) vis-a-vis Section 12(1) of the Act and also vis-a-vis Clause 11(1) of the schedule to the contract of employment between the parties. The assertions in the Notice of appeal are thus to the effect that on a proper construction of the material provisions herein, it amounted to multiple errors of law on the Registrar’s part (i) to conclude that the termination of employment herein was wrongful and in contravention of S.12 (2); (ii) that as viewed by the Appellant the Registrar lent undue weight to the provisions of S. 12(2) and insufficient or no consideration to the effect of S. 12(1) and the contract of employment, (iii) that he failed to give effect to reciprocal contractual provisions of the contract of employment negotiated between the parties, (iv) that he erroneously interpretated Section 12 (1) and (2) bere, (v) that he also erred in his holding to the effect that Clause 11(1) of the contract of employment was ultra vires the Electoral Commission Act, and (vi) that he was wrong when he granted summary judgment to the plaintiff for damages for breach of contract. In the argument of the appeal the defendant did not particularly follow the order set by the six grounds it had raised in its Notice of Appeal, although, I must say, the cumulative effect of the arguments presented was to the same effect. 6 The first point the defendant took up in this appeal was that per paragraph 11 of the Schedule to the contract of employment which the plaintiff signed in 1998 it had power, on giving due notice or making payment to the plaintiff in lieu of such notice, to terminate his employment herein any time before the expiry of the period of five years he was appointed for. In regard to the statement “The Chief Elections Officer shall hold office for a period of five years...” in S. 12(2) of the Electoral Commission Act, the defendant argued that the word “Shall” is not mandatory but merely directory or permissive and that in meaning it has the same effect as if the word “May” had been used. In this regard reference was made to the cases of Ackers -vs- Howard (1886)16 Q. B. D. 739 and Kirby -vs- North British Insurance (1896)2 Q. B. 99 which in the construction of two different statutes held differently on the meaning of the word “Shall” used therein to demonstrate the point that there are times when “Shall” is merely directory and that it need not always be treated as carrying a peremptory mandate. The next point the defendant took up in pursuit of its appeal was that Section 12(2) should not be read in isolation but along with Section 12(1) which allows for the terms and conditions that are to apply in the five year employment in question to be agreed upon between the parties and to be embodied in a contract of employment as happened with the termination clause herein. Resorting to principles of statutory interpretation the defendant argued that words used in a statute must prima facie be given their natural and ordinary meaning unless they result in some absurdity and that in construing a Section of an enactment one needs to look at the provision in question as a whole, allowing each of its portions to throw light on the rest of the provision. Citing the case of Jennings -vs- Kelly (1940)A. C. 206 as authority on these principles of construction the defendant argued that while it accepts that S. 12(2) fixes tenure at 5 years, it takes the same to be subject to the clause catering for termination of employment on notice or on 7 payment in lieu of notice as this is one of the terms and conditions agreed upon in the contract of employment pursuant to the mandate given by S. 12(1) of the Electoral Commission Act. After this in my observation the defendant’s arguments because a little more academic and desperate and | think | need not quite repeat them here as I did not find them very helpful for purposes of my resolution of the problem at hand. I must mention however that they covered areas such as how to deal with subject-matters provided for by two legal provisions one being qualified and the other being unqualified, how to ascertain and give effect to the presumed intention of the framers of any given statute if it is obscure, and about the need to avoid contradictory interpretation of provisions found in one and the same Section in a given statute. At the end of the defendant’s arguments more cases were cited to shed further light on the many meanings the word “Shall” is capable of bearing and Stroud’s Judicial Dictionary was also referred to in order to lend additional weight to this discourse. Responding to the appeal the plaintiff began by observing that all the exhibits he has exhibited, to wit, the letters of appointment issued by the Chairman of the Electoral Commission to him (exhibits “MM1” and “MM2”) and the contract of employment (exhibit “MM3”) fully acknowledge the fact that his appointment was for five years. He then indicated that the ultimate question this court has to decide is whether S. 12(2) of the Electoral Commission Act, which has fixed the tenure of office for the post of Chief Elections Officer at this five years, leaves any room for the parties to depart from that tenure. For the court to better appreciate that the tenure of office as provided for in S. 12(2) is mandatory, the plaintiff invited it to compare the provisions pertaining to the appointment of the Chief Elections Officer under S. 12 herein with those in S. 13, which deals with the appointment of professional, technical and administrative officers as well as the appointment of support staff for the same Electoral 8 Commission and to note the conspicuous absence of the tenure provision when it comes to appointment for that other category of employees. The meaning of this, it was submitted, is that as regards the office of Chief Elections officer S. 12(1) allows the parties to agree all other terms and conditions except the term or condition as to tenure which is pre-determined by legislation and that there is nothing absurd about this. In fact Mr Msisha, SC submitted that there is no conflict between Subsections (1) and (2) of S. 12 of the Electoral Commission Act. He added that the whole employment law is full of instances where the law has taken away the freedom of the parties to contract in relation to certain terms. For example Mr Msisha SC referred to the law in relation to the fixing of minimum wages as leaving the parties no discretion to agree otherwise on what should be paid at the minimum. Reference was also made to pages 628 to 659 of the 16th edition of Halsbury’s Laws of England for further instances of when the law has stepped in to pre-determine given terms in a contract of employment situation, which terms are then implied into the contract for the parties to comply with. It was thus submitted that in this case the tenure of five years has been supplied by statute for the office of Chief Elections Officer and that this cannot be subverted by trying to change the meaning of “Shall” to “May” as the defendant has tried to argue in its appeal. The “Shall” used by the legislation in S. 12(2) is mandatory, it was submitted, and on a literal and natural understanding of that term there is nothing vague, outrageous, or absurd about that mandatory meaning. Following this the plaintiff argued that Section 12(1) and S. 12(2) of the Electoral Commission Act are quite clear and not at all in conflict with each other. In his understanding Subsection (1) says to the parties that they can agree on all other terms and conditions while Subsection (2) says that it has taken away from the agreement of the parties the subject of tenure and has fixed it at five years. In this situation where Parliament has so fixed the tenure, it was forcefully argued that neither of the two parties herein alone nor both parties acting 9 together could override this prescription. The lower court, it was contended, did find that in stipulating a clause for earlier termination of this employment the parties had tried to override S. 12(2) and that the clause therefore ought to be struck out as being invalid. The plaintiff maintained his argument that “Shall” should be understood to have been used in S. 12(2) as a “Shall” and not as a “May”. The court was thus asked to first assess the ordinary meaning of that word as used in the provision and if that be clear to then give effect to that meaning. As regards the many cases cited to help with the exercise of determining whether the word “Shall” has been used in a “mandatory” or in a “permissive” or “directory” sense in this case Mr Msisha, SC warned that it will be dangerous to borrow interpretations of this word from its use in statutes dealing with entirely different subject-matters or from its use in criminal law and to on that basis hold that in this case too the “Shall” used in merely permissive. The court was thus urged to take great care before yielding to the argument that under S. 12(2) of the Electoral Commission Act the “Shall” therein is not a mandatory one. Grammatically understanding $.12(2) which clearly emphasizes five years both for appointment and re-appointment, it was submitted, that there is no room to come to a conclusion other than that the “Shall” used in relation to that period of time is a mandatory one. In further buttressing the fixture of the tenure of office in this case the plaintiff even had recourse to the decision of the late Honounable Justice Kumitsonyo when in this same case he was confronted with a Summons for Mandatory injunction and held that the tenure of office herein was a fixed one. I have with keen interest gone through all the arguments advanced on behalf of the parties in this case and have even taken occasion to revisit them more than once. I am convinced following this detailed scrutiny that the exercise of understanding S.12(1) and S.12(2) of the Electoral Commission Act and the effect they have on the termination clause in the 10 contract of employment entered into by the parties herein is not as complicated as argument has tended to make it. To my mind S.12 in its Subsections (1) and (2) is coached in such plain and unambiguous language that, prima facie, it does not call for the employment of any complicated rules of interpretation. On a plain and sober reading of these provisions I do not at all experience the conflict or controversy alleged to exist between them. It is accordingly my view that one does not have to go beyond the natural and ordinary meaning of the words used in these two Subsections to resolve the concerns expressed by the parties in this matter. Thus proceeding on such plain and literal construction of the provisions herein, it is my considered view, and on this I fully agree with the holding of the learned Registrar and the argument of the plaintiff, that as far as the tenure of office for the post of the Chief Elections Officer is concerned, Section 12(2) is the final authority. My understanding of the word “Shall”, therefore, as used in that Subsection is that it is mandatory and that it is peremptory in its requirement that when a person is appointed to that position he will be appointed for a period no more than and no less than the period of five years prescribed therein, be it on first appointment or on re-appointment. In the manner this provision stands I am quite convinced that it does not leave any room for the Electoral Commission to provide for any other tenure of office for this post, whether shorter or longer, than the period of five years fixed herein. Given however that I accept that Section 12(2), as duly argued by the plaintiff, has thus taken away the discretion of the parties to abridge or to lengthen the tenure of office fixed in this case, after listening to all the parties had to offer in their arguments, it strikes me that there remains one central question I ought to answer beyond the one the plaintiff posed as the ultimate question in this case. I do believe that it is the answer to that question that will determine whether or not the defendant’s appeal herein is or is not meritorious. The question in issue actually is whether on a strict understanding of the legal situation the termination clause now under attack 11 inserted in the contract of employment by virtue of the Electoral Commission’s exercise of the power under S. 12(1) of the Act does indeed defy the tenure of office prescribed under S. 12(2) of the Act. In other words the question is whether genuinely and truthfully speaking the argument of the plaintiff and the holding of the Registrar can be said to hold water when they treat the mere inclusion of this termination clause as providing or having the effect of providing a tenure of office different from the one prescribed and fixed by law. It will be observed that in all material documents pertaining to the plaintiffs appointment, the defendant did openly acknowledge and recognize the authority of S. 12(2) on the issue of tenure. Two letters of appointments being the plaintiffs exhibits “MM1” and “MM2”, and the contract of employment itself, being the plaintiffs exhibit “MM3”, all clearly and uniformly demonstrate that the plaintiffs appointment to the post of Chief Elections Officer herein was for a period no more than and no less than five years. In the circumstances as they stand I have no doubt in my mind that the defendant did all this in due obedience to the legally prescribed tenure provision of law. Now while so recognizing the finality of S. 12(2) on this point of tenure of office, it has also to be accepted that Section 12(1) is a sister provision in this Section which, in the absence of any qualifying direction in the Act, ought to be ranked at par with the Subsection (2) just discussed. It will be noted that in equally clear and unequivocal language this Subsection, gives the Electoral Commission the power, in its discrection, to determine terms and conditions for this same post. It is also to be noted, from the way the Section is drafted, that neither of these two Subsections has been made subject to the other. Accordingly as they so stand side by side, apparently without yielding to each other, I apprehend that the only net and logical meaning one can draw from them, as I have already so held, is that the Commission has full mandate and freedom to determine all terms and conditions for the post of Chief i Elections Officer, per S. 12(2), except that it cannot determine or seek to determine the term or condition concerning tenure of office which has already been prescribed or otherwise imposed, and which has clearly been fixed at five years by Section 12(2) of the Electoral Commission Act. Again here if the meaning of the Registrar’s ruling is that the plaintiff’s tenure of office having been specifically thus provided for in the Act the defendant could not through use of its powers under S. 12(1) stipulate terms and conditions that alter that tenure toa period different from the five years prescribed, I would find myself in full agreement with him. In my judgment therefore if in this case the Commission had appointed or sought, while exercising the powers vested in it by virtue of Section 12(1) of the Act, through its letters of appointment or through the contract of employment, to appoint the plaintiff to the post of Chief Elections Officer for say a period of three years only or for a period of 6 years (for example), or indeed if the Commission had appointed or sought to so appoint him for any other period other than the five years fixed herein, I would not at any point in time have entertained any hesitations at all about holding the Electoral Commission in breach of Section 12(2) of the Act and pronouncing such act on its part as being definitely ultra vires the Commission’s powers. As earlier observed however prima facie all material documents of appointment supplied by the plaintiff himself in the case openly demonstrate that the Commission did not depart from or defy the prescriptions of Section 12(2) in its appointment of the plaintiff. Argument however has suggested that in merely contemplating early termination of employment in respect of this post at any stage earlier than at the end of five years, as paragraph 11(1) of the Schedule to the contract of employment provides, even though this is said to result from S. 12(1), the defendant all the same breached the tenure that has been fixed by law herein. As I see it from the ruling of the lower court the 13 Registrar bought this argument in wholesale fashion and ended up holding that it was indeed beyond the powers of the Electoral Commission in this case to provide for termination of this appointment through notice or through payment in lieu of notice. I have at great length studied Section 12(1) and Section 12(2) alongside the clause in question and critically analyzed the lot. I must say that in the end it disturbs me that the feat the Registrar was led into by the plaintiffs argument of jumping from holding that Section 12(2) fixes tenure in this case straight to the conclusion that the termination clause herein offends that fixed tenure just like that is too abrupt. To me such move appears to shortcircuit the analysis process and misses an examination of the question whether in reality the tenure clause indeed offends S. 12(2) and if so in what way. Before I go any further let me observe that neither any specific legal provision nor any specific case authority has in the full course of arguments in this case been cited to me in support of the claim that to provide for a termination clause in respect of employment with a tenure fixed under statute is unlawful or that it amounts to an interference with or a reduction of such fixed tenure. It is to be noted that in Cotrim -vs- Dos Santos (1973-74)7 M. L. R. 111 when dealing with a case where the parties had entered into a contract of employment fixed for five years, although not fixed by statute, the Hon. Chief Justice Skinner duly recognized that legally there can both be fixed term employment contracts with provision for their termination on notice and fixed term employment contracts without any provision for termination on notice. Besides it will also be noted that in Malawi, although the authority in issue is also not directly on point of a fixed term employment contract under statute, the position of the law has clearly been expressed to be that no matter how permanent a species of employment appears to be, in the absence of clear language that it cannot be terminated, it ought to be construed as being one that can be determined by reasonable notice. See: Malawi Railways Limited -vs- P. T. K. Nyasulu MSCA Civ. Appeal No. 13 of 1992 (unreported). 14 Now apart from fixing the tenure of office for the post of Chief Elections Officer at five years Section 12(2) does not contain any language, clear or otherwise, to the effect that such appointment cannot be terminted. Also bearing in mind that not all fixed term employments need be without a termination clause and that S. 12(1) does not exclude the provision of such a clause when mandating the Electoral Commission to, in its discrection, determine terms and conditions for this post, I find it difficult to support the proposition or position that a fixed tenure statutory provision like $.12(2) herein cannot accommodate or stand side by side with a contract clause on termination of employment. At this point I accordingly respectfully part company with the learned argument offered on behalf of the plaintiff and with the holding of the learned Registrar to the effect that the clause herein breaches the fixed tenure and that it must vanish on sight of S. 12(2). It is in fact my considered view on this point that not every contract clause having a bearing on tenure of office can be said or be held to be a provision extending, reducing, or otherwise altering it and to be thus a provision in breach of the prescribed tenure of office. As I have already held, if in determining the terms and conditions for the post under authority of S. 12(1) the Electoral Commission undoubtedly decided to disagree with the law on the five year term and imposed or sought to impose a different term altogether, its act could openly and nakedly have been unlawful and untenable. If, however, in its endeavours to so determine the terms and conditions for this post as sanctioned by Section 12(1) of the Act the Electoral Commission merely sought to provide for eventualities in the course of the tenure of office, which eventualities could in one way or another affect the successful completion of the prescribed term, then I do not think that the Commission need be faulted on that. The way I understand it all S.12(2) does is that it closes debate on tenure of office or length of contract of appointment. It does not necessarily shut out anything or everything that seems to affect or to have an effect or a bearing on this tenure. Indeed the only suggestion 15 that it should be understood to say so comes from the plaintiff and it is not backed by any authority. Be this as it may it is a fact of life that no matter how forcefully a statute can dictate or how firmly parties may in a contract agree about the duration of their employment relationship it is inevitable that certain factors can intervene and affect the stipulated or agreed tenure. Parties do well when they recognize these inevitables and take steps at agreement stage to spell out how they are going to relate to each other when such surprises crop up. It is thus not surprising that many contracts do contain clauses that address situations where it becomes impossible to complete a fixed term or tenure of employment. For example if a person is appointed to an office for five years fixed and yet he dies before that period is over, and the terms and conditions of employment provide that death during the duration of the contract will put an end to that contract, could it be correctly argued and held that such provision has the effect of altering the length of tenure and that it is therefore in breach of the prescribed tenure of office? Can it in other words be successfully argued that the dead man should remain or be deemed to remain in office until his term expires? If such argument were made to me in a like case I think I would find it absurd. Similarly with a fixed term of employment entered into, at times when settling terms and conditions of service, it is recognized that illness could set in, physically or mentally, and that it may well assume that aggravated proportions as to render the employee affected so infirm that he/she can no longer properly perform the duties of his/her office. Now when terms and conditions for such employment provide for what should happen in such event and if in particular they provide that the employee should then relinquish his/her term of office even if his/her term of office is far from over, can it sincerely be argued and held that to so provide is to challenge the fixed tenure, even if statutory, and that such person should be kept in office until his/her term of office expires in due course of 16 time? I certainly do not think that even if I were so invited to, I could view such provision as effecting any change to tenure of office by merely hinting at possibly of an early end of contract on occurrence of such event. Actually viewed conversely, instead of the employee dying or becoming infirm in the course of his fixed tenure it could well be a question of the employer winding up or closing down, or otherwise going out of existence for whatever legitimate reason before the employee’s fixed term of employment is over. If the terms and conditions of employment seek to address that eventuality and provide for how the employee is to be treated and discharged when this happens as he is still serving his fixed term, is it to be said that in so providing, such terms and conditions violate the employee’s tenure of office? I would certainly find such argument, assuming it were made, to be verging on pedantry and would accordingly dismiss it. It is also widely recognized, I believe, and in numerous contracts for that matter, including those for a fixed term of office, that subsequent to the commencement of employment an employee can exhibit unacceptable behaviour or can so ill- perform in the carrying out of his/her duties that he/she ought to be relieved of his/her post before completion of term. If thus an employer includes among the terms and conditions governing such employment a provision for dismissal from employment of the employee in such event, should it honestly be argued or held that in merely making such provision available for use should appropriate occasion arise the employer is thereby reducing the tenure of office and breaching the provisions on such tenure? I very much doubt if it would be correct, assuming such argument were advanced, to so hold. Equally, I believe, it is widely acknowledged and recognised in contracts of employment, even those with fixed terms of office, that both the employer and the employee need safety valves in such contracts in case during the duration of ri their relationship they end up developing different interests and wishing to discontinue their relationship. Thus generally terms and conditions of service will be put in place and accord the employee the right to resign from office, just as they will, in like fashion, accord the employer the right to terminate the employment relationship. In either case the party taking the first step is subjected to the obligation to give due notice or to make some payment in lieu of such notice to the other party. As will be recalled I have already held that S. 12(2), apart from tying the hands of the employer on the subject of tenure by imposing the tenure of office for this post, does not go so far as to say that such appointment cannot in any event be terminated. I have also already expressed my discomfort with the speedy transition the Registrar managed from holding S. 12(2) final on the subject of tenure to concluding that the termination clause offends the tenure provision, without really discussing in what way it does so. Having combed through the arguments in the matter several times over, I have completely failed to find any point therein whereat the plaintiff points out how this clause changes or otherwise negates the fixed tenure, which has in fact been embraced by all material documents relating to the appointment of the plaintiff. Thus, just like in the case of the other eventualities I have discussed above, I sincerely fail to see how the mere provision of a term or condition on termination can, per se, amount to a shortening or otherwise alteration of the prescribed tenure herein. In the result, reverting to the central question I earlier posed, unlike the Registrar, I do not find Clause 1 1(1) herein on termination of the employment of the Chief Elections Officer at all repugnant to Section 12(2) of the Electoral Commission Act. As I have ventured to demonstrate above such clause can only render the tenure fixed under S. 12(2) nugatory if it alters or attempts to alter the fixed five year tenure to some different tenure, longer or shorter than the prescribed one and | honestly do not think that Clause 11(1) does that. Actually as coached, the clause in question does not provide that the 18 termination of the plaintiff's appointment will occur on 27th May, 1999 nor does it provide that it should occur on any other specified date before the lapse of the five years the plaintiff was appointed for. Having merely catered for a procedure or a pattern to be followed should termination or resignation crop up before the end of the mandatory five years of office, in my understanding, there was no certainty, from a reading of the material clause, that termination was going to take place. In fact it may well be that it need not have occurred at all. | cannot therefore accept argument that the mere inclusion of Clause 11(1) in this contract had the automatic effect of reducing or changing the plaintiff's tenure of office from five years to something else. It in my view requires a stretch of imagination for one to reach such a conclusion. I am well aware that the plaintiff has not been able to complete the term of office he embarked upon and that this is because the Electoral Commission opted to act on the Clause 11(1) complained against herein. Since this clause was not coached in a manner to compel the Commission to act on it at any specific time, as I have held, it did not therefore determine a different tenure of office for the plaintiff from the one S.12(2) set for him. Thus if the Electoral Commission had not chosen to act on the clause, this action could not even have arisen. Questions therefore regarding whether it was proper or not for the Electoral Commission to so invoke the clause, and whether or not this clause is or is not compliant with the plaintiff's contractual or constitutional rights are questions that cannot be adequately and effectively answered on basis of a mere interpretation of S.12(1) and (2) of the Electoral Commission Act as the Registrar held in his ruling. It is my judgment therefore that the Registrar erred in this case both when he held that this matter could be disposed of with finality on an interpretation of those two Subsections and when he granted summary judgment on the wrong assumption that the termination clause herein had the effect of cutting short the plaintiffs tenure of office which it does not. The matter ought 19 to go to trial. I accordingly hold that the defendant’s appeal should and it hereby succeeds with costs. Made in Chambers the 29th day of May, 2002 at Blantyre.