IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO 1272 OF 2003
BETWEEN:
AND
DZUKA PUBLISING CO. LIMITED……………………… DEFENDANT
This is
this court’s order on assessment of damages herein pursuant to a default
judgment entered in favour of the plaintiff dated 11th June,
2003. The judgment is for payment of
pension dues wrongfully withheld from the plaintiff when he retired from the
defendant’s employment on 19th December 2002 after serving the
defendant for 17 years.
The notice
of hearing of this assessment was duly served on the defendant. The defendant did not appear at the hearing
of the assessment and that left the plaintiff’s evidence totally
uncontroverted.
The
plaintiff herein retired from the defendant’s employment on 19th
December, 2002 after working in the defendant’s employment for a period of 17
years. The plaintiff was employed on
pensionable terms and was entitled to a pension payment. The plaintiff contributed to the pension
through deductions from his salary. The
defendant also contributed a certain sum of money towards the plaintiff’s
pension. Under the pension scheme the defendant was supposed to remit the
plaintiff’s contribution to Old Mutual who administer the defendant’s
employees’ pension fund.
As it
turned out the defendant only made such remission’s for the period up to
February, 2002. That leaves out
revision of the plaintiff’s pension contributions for the period covering the
months of March to December, 2002. The
calculation of plaintiff’s pension benefits from Old Mutual for the period up
to February, 2002 show that the plaintiff is entitled to K1,143,965.49 inclusive
of interest up to the date of calculation of June, 2003 when this assessment
was done. That sum is exclusive of tax
deductible on the same and due to the Malawi Revenue authority. The defendant herein deliberately omitted to
send a pension payment form to Boabab Pensions Brokers who are the brokers for
Old Mutual Pensions’ Scheme, with the defendant’s employees.
The
plaintiff is therefore being denied his pension benefits as a result of the
defendant’s omission to act accordingly.
The plaintiff is therefore clearly entitled to his pension benefits
herein. The pension benefits are a
contractual right under the contract for the administration of the pension
scheme between the defendant and Old Mutual for the benefit of the plaintiff
herein. See Chawani v Attorney
General MSCA Civil Appeal
Number 18 of 2000. In the premises the
court orders that this assessment be an interim one covering the plaintiff’s
pension benefits for the period up to February, 2002. The plaintiff is awarded K1,143,965.49 as pension benefits due
under the defendant’s employees’ pension scheme of which the plaintiff is a
member. The figure of K1,143,965.49 is
exclusive of tax and so the court orders that a tax assessment be made by the
Malawi Revenue Authority on the sum awarded and that once the tax is deducted
the plaintiff be paid the remainder. A
final assessment of damages shall be done for the remainder of the period from
February, 2002 to December, 2002
Costs of
this action are for the plaintiff.
Made at
Blantyre this August, 2003.