CIVIL CAUSE NO. 687 OF 2001
MALAWI TELECOMMUNICATIONS LTD...............DEFENDANT
The Defendants, in all the three causes, filed their respective notices of intention to defend the proceedings so commenced by the Plaintiffs herein. Although the matters before me were taken out separately I will deal with them together because of the reasons that will become obvious later in this ruling. As a matter of fact the reasons for the findings of fact, in one cause, apply with equal force in respect of the other matters as well. It is for this reason that I have found it convenient to write one opinion and adopt same in connection with the other two matters.
The Plaintiffs have filed, and sworn, affidavits in support of their respective applications. On the other hand the Defendants have filed affidavits in opposition to the Plaintiffs’ said applications. The affidavits in opposition have been sworn by Counsel for the Defendants.
The Originating Summonses
In the Originating Summonses, issued on the said 15th of March 2001,
the Plaintiffs are seeking this courts’ determination on a number of
A. Armstrong Kamphoni -vs- Malawi Telecommunications Ltd
It is his prayer that this court should order:-
(1) That the Defendant, has wrongfully and unlawfully terminated the Plaintiffs’ contract of employment;
(3) That the Plaintiff is entitled to be paid the sum of MK3,204,626.00 as underpayment for terminal benefits under the contract of employment;
(4) That the Defendant do pay 15% of the sum due to the Plaintiff as collection charges;
(5) That the Defendant be condemned to pay the costs of these proceedings.
B. Mary Kaunde -vs- Malawi Telecommunications Ltd
As regards Mary Kaunde it is being prayed by her that this court should make the following orders in respect of her action:-
(1) That the Defendant has wrongfully terminated the Plaintiff’s contract of employment;
(2) That the Plaintiff is entitled to compensation for wrongful and unlawful termination of the contract of employment;
(3) That the Plaintiff is entitled to severance pay in addition to compensation for wrongful and unlawful termination of employment;
(4) That the Defendant be condemned to pay costs.
C. In respect of the case of Noah Chimpeni -vs- Malawi Television (MTV) Ltd it is on record that the Plaintiff wants this court to adjudge as follows:-
(1) That the Defendant wrongfully and unlawfully terminated the contract
of employment between the Plaintiff and the Defendant;
(3) That the Plaintiff is entitled to severance pay in addition to compensation for wrongful and unlawful termination of the employment;
(4) That the Defendant be condemned to pay costs;
(5) That the Plaintiff is entitled to repatriation package.
In all the Originating Summonses there is no indications as regards the provision under which the applications are brought. Even though the Plaintiffs have not indicated that their applications are brought under the Employment Act it has transpired, during arguments, that their applications are made under Act No. 16 of 1996 - The Employment Act. Indeed, the essence of the applications is that the Plaintiffs are relying on the provisions of the said Employment Act and that they want to enforce the remedies that are available to an employee, under the said Employment Act. These are remedies that are obtainable where an employees’ rights and/or freedoms are breached by an employer.
The evidence in all the three cases is by way of written statements sworn by the deponents. The deponents were not cross-examined on the matters of fact deponed to in their affidavits in support, and in opposition, to the applications herein.
“The Industrial Relations Court shall not be bound by the rules of evidence in civil proceedings.”
Indeed, pursuant to Section 71(3) of the said Labour Relations Act the Industrial Relations Court may receive hearsay evidence which is otherwise inadmissible in a court of law.
Issue For Determination
Law and Finding
It is common cause that the Plaintiffs are relying on the provisions of the Employment Act and are desirous of obtaining reliefs under the said Employment Act. It is clear in my mind that under the said Employment Act the tribunal that is competent to deal with complaints under the said Employment Act is the Industrial Relations Court. This is clear when one reads Section 3, together with Sections 7, 62, 63 and 64, of the Employment Act. Indeed, the said Employment Act has provided that the Industrial Relations Court is the Court that should entertain and hear applications for the enforcement of the fundamental rights provided for under the said Act No. 16 of 1996. Further, the tenor of the provisions of Section 64 as read with Section 65 of the Labour Relations Act is, in my view, a clear testimony of the fact that the High Court will hear labour related matters when such cases are brought before it on appeal, on a question of law or jurisdiction, from the Industrial Relations Court which has original jurisdiction to hear and determine all labour disputes. Furthermore, I adopt the reasoning of my learned brother judge, Honourable Justice Chipeta, in the case of Hyghten Lemani Mungoni -vs- The Registered Trustees of Development of Malawi Traders Trust (Dematt) Civil Cause No 686 of 2001, who opined that labour related disputes should first be taken before the Industrial Relations Court before being brought to the High Court.
“Next, learned Senior Counsel contended that this court is competent to hear the petition on the basis of Section 108 of the new Constitution of the Republic of Malawi, which provides that the High Court “shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.”---
It is to be observed, however, that although this is the position, the
High Court has to look at the matter from a practical point of view.
In my judgment, it would be both inappropriate and wrong for the High Court
to proceed and assume jurisdiction over proceedings which fall within the
jurisdiction of a subordinate court simply because the High Court has,
as we have just seen, unlimited original jurisdiction. Such an approach
would create confusion, as parties would be left to their whims to bring
proceedings willy-nilly in the High Court or in a subordinate court, as
they pleased. This would also open the flood gates for trivial cases
to come before the High Court. In short, the High Court should recognise
the subordinate courts and decline jurisdiction in matters over which the
subordinate courts have jurisdiction unless exceptional circumstances exist
which necessitate or require its intervention, that is, the intervention
of the High Court.
I have considered Section 41(2) of the Constitution which gives every
person in this country the right to have access to any court of law.
With respect, I don’t think that in saying the petitioner should bring
her petition before a subordinate court, she is thereby being denied this
right, since, as I have shown, there are competent lower courts with powers
and jurisdiction over this type of cases. Indeed, this court would
still be available later on in the event of an appeal. In short,
I am unable to find any exceptional circumstances in the instant case such
as would justify the intervention of this court---” (emphasis supplied
Finally I wish to observe that the choice of the court before which to commence labour related proceedings is an important one because it has a bearing on the question of recovery of costs as well as on the rules of procedure and evidence. In this regard Section 71(2) and 72 of the Labour Relations Act are pertinent. It is, therefore, my view that since no costs are recoverable in the Industrial Relations Court, except in certain specified circumstances, it would be an abuse of process if a person is permitted to commence labour related proceedings in the High Court where costs of proceedings are, almost invariably, recoverable with a view to recovering those costs. In fact the Plaintiffs are costs of these labour related proceedings. Further, as earlier alluded to above, in the proceedings before the Industrial Relations Court the rules of evidence are flexible in that hearsay evidence is admissible. Now I do not think that it will be proper, and/or in the interest of justice, for this court to proceed with the hearing of these cases, which are brought under the Employment Act, and thereby deny the Defendants the opportunity to use hearsay evidence when same would have been allowed in the Industrial Relations Court. Moreover, I am of the opinion that to allow labour related proceedings to be commenced in the High Court would entail curtailing the forums that would be available to a party. In particular if these proceedings were to originate in the Industrial Relations Court the parties will have a right of appeal to the High Court and then another appeal to the Supreme Court whilst if these very same proceedings are commenced in the High Court a party will only have one right of appeal, that is, to the Supreme Court.
In view of the fact there is no adverse order made against the Plaintiffs in respect of their substantive applications, and due regard being had to the fact that ordinarily there would have been no order as to costs if these proceedings were brought before the appropriate court, I make no order as to costs of, and occasioned by, these proceedings before me. Each party shall bear its own costs. It is so ordered.
Pronounced in Chambers this 18th day of May 2001 at Principal Registry,