Attorney General v Mukuru Money Transfer (Civil Cause 204 of 2021) [2022] MWHCCiv 26 (23 March 2022)

Kenyatta Nyirenda, _ JUDICIARY IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY (CIVIL DIVISION) CIVIL CAUSE NO 204 OF 2021 a ‘BEEWEEN ” ESTHER CHIVIYA tt CLAIMANT THE ATTORNEY GENERAL veciescssesssspeveseevesseeee vcoeeeee 8? DEFENDANT MUKURU MONEY TRANSFER oeeeseccieseeees sesiesstedet soa 2M? DEFENDANT CORAM:. THE HONOURABLE J uSTICE KENYATTA NYIRENDA Claimant, appeared in person | Mr. Chikwakwa, Counsel for.the 2" Defendant Mr. Fenty Kachingwe, Court Cleric oe nb "RULING. Kenyatta ir enda, ai _ This is my, ruling on an application by the Claimant for summary judgement. The application is brought under Order 12, 1.23, of the Court (High Court) (Civil Procedure) Rules [Her einaiter referred to as “CPR” _ The action herein was commenced by the Claimant by a specially endorsed writ of summons issued on 17" December 2020. Her claim against the 1 Defendant is for damages for false imprisonment and loss of employment, She also claims damages against the 2m Defendant for unfair ter mination of employment. . On 6" May 2021, the Claimant filed with the Court an. application for default judgement against the 1% Defendant on the ground that the 1 Defendant had filed neither a defence nor a response. The application was granted by the Assistant Registrar ‘on 7 May 2021. The Court notes that the Claimant has talcen no follow- up steps to obtain a for mal order and have it, executed against the I! Defendant. 1 Esther Chiviya v. Attorney Generai & Mukuru Money Transfer Kenyatta Nyirenda, 4. On 28'" April 2021, the 2°4 Defendant filed the following Defence: op 10. The second defendant refers to par der aphs 24 to 40 of the statement of case and contends that the claim against-the second defendliint i is purely a labour matter. The ‘appropriate foruin to determine the claimant’s claim against the second defendant is the Industrial Relations Court. The second defendant repeats paragraph | above.and will move the court to dismiss the claimants claim against the second defendant for-being filed in a wrong forum. Alternatively, the second defendant will move the court to transfer the claimant's .elaini against the second. defendant to the Industrial Relations Court. The second defendant refers to the claimant’s statément of case and contends that the statement of case has not been properly drafted. It is not a concise statement of the case. It contains or refers to evidence that is intended to be relied on by the claimant in support of her case. The second defendant will move the Court for an - order directing that Claimant gets legal aid assistance to drafi the statement of case i manner that conforms with ihe rules of. pr ocedure. . Notwithstanding paragraphs. i, 2 and 3 above, the second defendant denies paragraph 24 of the statement of case. in that the contract of employment was lawfully ierminated. The second defendant summar ily dismissed the claimant and in that case, there was no obligation pay her in lieu of! notice or pi ovide her a notice of: term ination of the contr ‘act of employment. ~ In or about 2" August 3019, the second defendant received a report iat one of its branches located at Mzimba was robbed, The robbers had gotten away with K14,373,314.00 which was left in office drawers by the claimant and her office mate, instead of being locked in a cash vault as was provided in the second defendant’ § standard operating procedures. oS The second defendent inter ‘nally inve stigated the robber y. The claimant was one of the people questioned during the investigations. T he fi ndihgs of the investigations necessitated the calling of the, claimant to a disciplinar, ‘y hearing. — 7; he claimant was called for a di. seiplinar ‘y hearing on or about 22™ November 2019 and consequently summarily dismissed’ upon being found guilty of misconducts. _.. The claimant was found guilly. of gTOss ne ‘gligence and unauthorized absence from > work. The second. defeirdint Tost the sum of KI4,373,31 4 00 due to claimant’ S FOSS negligence. The second defendant was thus. ju stip edi in summarily dismissing the claimant. : the action should be dismissed with costs. COUNTERCLAIM in the event the Courts entertains the claimant’s claim against the second defendant, the second defendant repeats 5 to 8 above and contends that due to the claimant's gross negligence, in that she failed: to adhere: to standard operating ' procedures by leaving cash in the office drav wers instead of cash vault, the second ‘ dejéndant lost the sun of K14, 373,3 314. 00. 2 Esther Chiviya Vv. Attorney General & Mukuru Money Transfer dl. 12.° Kenyatta Nyirenda, J. The second defendant claims from claimant the sum of K14,373,314.00 plus interest at commercial bank lending rate from gra August 2 2019«to date of payment by the claimant... The claimant als 56 Claims costs of the counter claim." The application for summary judgement is supported bya a statement sworn by the Claimant herself wherein she deposes as follows: . os “7. . 2, f. HAT Fam self-represented in this action 7. HAT: the matters ‘of fact 1 depoire to herein are to my knowledge as @ former employee of Mukur Uf Money Tr ansfer (AMT). THAT I commenced the proceedings by way of Writ af Summons against the Attorney General being the 1° Defendant for: Jalse.. imprisonment and loss of employment among other claims stated in the Statement of Claim and Mukuru Money Transfer Limited being pid Defendant for unfair termination of employment or unfair dismissal among other claims stated in the Statement of Claim. . THAT on 28" day of April, 2021 the 2" Defendant served a defence which in strict sense is of general denial. The. second Defendant’s defence is a mere sham calculated to delay the course of justice. Now shown:io me is a copy of the said " defence unmarked but dated 28" April, 2021. ‘THAT itt the’ circumstances it would only bé fair and just, and i in the interest of justice that a summary judgement be‘entered against the Second Defendant.” The 2? Defendant is opposed to the to the application. and there is a sworn statement to that end made by Counsel Lawrence, J ohn Kapinda wherein he states as follows: aoe : . SUAUNGS ry Judginent and F respond to it as 1 do hereunder. THAT'I have read the elatieant’ Ss sworn i Statement in support of the application for Documents filed and dexchanged by the parties “ae THAT the claimant commenced the within action through summons. The action is _ against two defendants, namely, the Attorney General and Mukuru Money Transfer Limited, Inow produce and exhibit a copy of the claimant's summons ard statement of claim which is marked LKL. THAT it clear from the claimant’s statement of claim thgt the action is essentially _fwo causes of action. One equse of action is.against only the first defendant, the : Attorney General, and this. consists of claims for damages and loss due to false imprisonment, defamation, loss of dignity and mental distress. The other cause of - action is against only the second defendant, Mukuru Money Transfer Limited, and ihis consists of claims for compensation of unfair disinissal, payment for annual leave days, notice pay, and back pay. eg Esther Chiviya v. Attorney General & Mukuru Money Transfer Kenyatta Nyirenda, J. 8, 10. Ll, “72 13. THAT the second defendant filed a defence pr testing to the claim and a counter claim. I now produce and exhibit a copy of the second défendant’s defence marked : LK2.. THAT upon receipt of the second defendant’ Ss defence and counter claim, the claimant filed a document titled “statement of claim against the second defendant” which was an abridged version of the initial statement of claim that was filed by the claimant. I now produce and exhibit a copy yof this dééument marked LK3, “FHAT the abridged version of the statement of elaim was - accompanied by a document that appears to be a defence to thé'second defendant's counter claim. The document started with par agraph 6 and there was no heading to tt. li was also accompanied by the claimant's sworn statement in support of the claimant's defence to second defendant's counterclaim. T now produce and exhibit the claimant’s. “defence to. counterclaim” and-the sworn statement in support of élaimant’s defence to counterclaim which are marked LK4. THAT both parties filed and served on each other statement of issues for the purposes of mediation. To the surprise of the second defendant, the second was served with a filed objection to mediation purportedly made under Order 13 rule (2) (6). The claimant did not specify the procedure rules that provided for the said Order 13-rule (2) (b). I now produce and. exhibit a copy of the objection to mediation mar. ked LKS, oh Particulars of secon d defendant *s defence . THAT I refer to paragraph'4 of the claimant’ s sworn statement in support of the application Jor summary judgment and state that the second defendant's defence, which is exhibit marked LK2, is nota general denial as alleged by the claimant. It is neither sham nor intended to delay the wheels of justice. THAT the second defendant raised he followin issues in their defence: a Forum coriveniens L3.] L he second defendant pointed out that the cause of action against the second defendant is purely a labour matter, as such, the appropriate forum to handle the claimant’s claims against the second defendant was the Industrial Relations Court. I refer paragraphs I. and 2 of the second defendant's defence. 13.2 The second defendant further stated its intention to-have the cause of action against the second defendant transferred to the Industrial Relations Court or be dismissed for the High Court is not the appropriate forum to deal with the claim against the second defendant. — - Esther Chiviya v. Attorney General & Mukuru Money Transfer = «+ Kenyatta Nyirenda, J. 13:3 13.4 Inappropriate drafting g of the statement "of case The second. defendant pointed out tha the claimant’ s statement of case “contained. evidence that the claimant intended to rely in support of her case. The second. defendant further pointed out:that the claimant’s statement of ‘case was not concise, L refer to paragraph 3 of the second defendant's defence. 7 wR, 7 The second defendant stated its intention to 1 move the Court to order that “the claimant gets legal aid 1 repr esentation so that rules of pr ocedure are followed in the matter. No valid claim forr notice pay, compensation jor unfair dismissal and related claims 13.3 13.6 The second defendant: denied that the claimant’ s contract of employment was unlawfully terminated. It contended that the employment was lawfully terminated as there were valid reasons and. lawful procedures were _ followed. I refer to paragraphs 4, 5, 6 and 7 of the second defendant's defence. The particulars of the second defendant ’s defence as pleaded were: 13.5.1 the second defendant was robbed of KI 4 ; 373, 314.00 which was le oft -in office drawers by the. claimant and her colleague 13.5.2, the leaving of the cash in office drawers was against the second defendant's standard operating procedures. The cash was supposed to be locked in a cash vault. , 13.5.3 the second defendant jinternally investigated the robbery and the claimant was one of the people- who was questioned. during the investigations. I now produce the investigation report which is ~ marked LA 6. i 13.5.4 the findings of the. investigations necessitated the. calling of the , claimant lo a disciplinar. y hearing. © oy 13.5 5 the second defendant called ihe claimant to a disciplinary hearing “on 22 November 2019 where she was found guilty of misconduct. Consequently she was sunimar ily dismissed from employment, that is, she was summarily dismissed. now produce the invitation to a disciplinary hedring and the notice of termination of employment ‘marked LK? and LK8 respectively. The second defendant further denied that the claimant was entitled to notice pay as the dismissal from employment was a summary dismissal, as such, she was not entitled to payment in liew of notice or notice of termination of the contract. I refer to paragraph 4 of the.second defendant's defence.” Esther Chiviya v. Attorney General & Mukuru Money Transfer” . "Kenyatta Nyirenda, J. Both the Claimant and the 2"! Defendant filed their respective supplementary sworn statements in support of their respective positions. “ee As already stated, this application has been brought under Order 12, rule 23, of the _ CPR which rule provides as follows: | “23. (L) The claimant may apply to the Court for assummary judgment where the defendant has filed'a defence but the claimant believes that the defendant does not have any real praspect af defending the claim. — : (2) Summary judgement shall not apply to a claim for libel, slander, false prosecution, false imprisonment, seduction or an Admiralty action in rem. Order 12, rule 25 (2) ahd rule 26 of the CPR. are also relevant and they are couched in the following*termis: = 0° > 2 a “(2) Where the Court is satisfied that —— (a) the defendant has no arguable defence to the claim or part of the claim as presented in the application; and - (b) there is no need for a trial of the ‘application or that part of the ~ application, the Court shall — (i) give judginent for the applicani jor the application or part of the application; and ms - (ii) ‘make any other order the Court deem appropriate. 26.. The Court shall not enter sunimary judgment’ dgainst a defendant where it is satisfied that there is a relevant dispute between the parties.about a fact or an arguable question of law.” a Se In order for the claimant to get a summary judgment under the CPR, the claimant must demonstrate that the defendant has no real prospect of defending the claim (see Order 12, rule.23(1), of the CPR) and that there is.no relevant dispute between the parties about a fact.or an arguable. question of law see (Order 12, rule 26, of the CPR). As was observed by the learned authors of S. Goulding Odgers on Civil Court Actions, (24% ed.,‘Sweet & Maxwell, 1996), at page, 129: . “If the evidence of the defendant is incredible in any material réspect it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence and judemeéintwill be given to the plaintiff.” Thus, the mere assertion of a given situation 6 - Esther Chiviya v. Attorney General & Mukuru Money Transfer say Be Kenyatta Nyirenda, J. does not, on its own, Showa reasonable defence. The.court must assess whether or not the defendant's assertions ure credible.” ee In the present case, the 2™ Defendant claims in its:statement of defence that the Claimant was dismissed from employtnent becalise there were valid reasons as established through a disciplinary hearing. The.2™ Defendant submitted that the requirements of sections 57 of the Employment Act were satisfied in, that the Claimant was found. guilty of»misconduct, namely, gross negligence and unauthorized absence from work. : To my mind, the matters raised by the 2nd Defendant are sufficient for the Court to find that there. is a’ relevant.dispute between the parties regarding, among other matters, the question whether or not the Claimant’s employment was unfairly terminated contrary to section 57 of the Employment Act. Ip. short, I do not agree with the Claimant’s’ assertion that “The ‘second Defendant's defence is a mere sham calculated to delay the course of justice”. In the preniises, summary judgement cannot be entered: see Order 12, rule 26, of-CPR. The application is, therefore, dismissed. Pronounced in Court this 23"! day of March. 2022 at Lilongwe in the Republic of Malawi. a Kenyatta Nyirenda _ JUDGE a