Kamwendo v Malamulo Publishing House (MSCA Civil Appeal 36 of 2010) [2010] MWSC 22 (13 October 2010)

. IUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO.36 OF 2O1O BETWEEN: GREGORY KAMWENDO . APPLICANT - A]\D. MALAMULO PUBLISHING HOUSE... ....... RESPOI{DENT CORAM: THE HONOURABLE JUSTICE E. B TWEA Absent, Counsel for the Applicant Absent, Counsel for the Respondent Balakasi - Official Intenrreter RULING Twea, JA This Notice of Motion was brought by the applicant seeking leave to appeal out of time against the judgment of Potani J, delivered on ?3'd November, 2009. It is supported by an affidavit to which several documents, including the judgrnent in issue, are exhibited. The respondent filed an affidavit in opposition. Be this as it rnay, the respondent did not appear. The facts of the case, briefly, were that the parlies appeared before tire Industrial Relations Court, on a clairn for unlawful dismissal. The courl found that the disrnissal of the applicant, on the ground that he had contracted a polygamous marriage, was unlawful for violating Sections 57(3)(a) and 5(l) of the Ernployment Act. It ordered compensation in the sum of K200, 000.00 and damages in respect of the applicant's motor vehicle. The respondent appealed on grounds that the order of compensation was wrongly grounded on Section 5(1) of the Erirployment Act, and that it was excessive. Fufiher, that there was no basis for the order of damages in respect of the applicant's motor vehicle u,hich, in fact, was a non - runner at the time of his dismissal. The appeal was set down for hearing on 16t" November, 2009 before Potani J. The applicant lawyers did not appear on the appointed day. The matter was heard in their absence and ruling was reserved. There was confusion about the case, however, the gist of the application was that the appiicant oniy became aware of the judgment, delivered on 23'd November, 2009, on 14'n July, 2010. I acknowledge the confusion that led to the deiay in lodging an appeal. Ordinarily this would have entitled the appiicant to leave to appeal out of tirne. Be this as it may, I am obliged to consider whether the intended appeal raises issues tlrat are likely to succeed: see AGA Karim and Sons Vs AMI Rennie Press (MW) Ltd and Another, MSCA Civ. Ap. 4 of 1998. as pleaded bv the respondent. The intended appeal basically raises two issues: whether, the appeal to the court below \^/as brought contrary to Section 65(2) of the Labour Relations Act; that is, that it was on matters of fact and not law or jurisdiction and that the court erred when it disallowed damages in respect of motor vehicle. On the first issue, I think the challenge to the jurisdiction should have been argued in the court below. It was not. In my view, this ground of appeal is an afterlhought on the parl of the applicant. Even if I was wrong on this, I would still find that this ground cannot be sustained. It is clear from the arguments before the court below that there was a serious misunderstanding of Section 5 of the Ernployment Act, which is penai in nature and Section 58 of the Employment Act. The former criminalizes discrirnination of stated grounds, the latter provides that dismissal based on tlre same stated grounds, as provided in Section 57(3) (a) of the said Act, would amount to unfair dismissal. While the former attracts a fine of K10,000.00 the latter attract remedies provided in Section 65 of the said Act. The Judge in the court below took time to examine this issue and he explained. Clearly, the alr,ard of compensation made by tlie Chairperson of the Industrial Relations Court was made under Section 63(4) and (5) of the said Act. It was not a fine, under Section 5 of the Act. These are matters of lau'. With this in mind the applicant cannot be heard to say that these were matters of fact. On the second ground I agree with Potani, J that there was no propel' basis for ordering damages in respect of the motor vehicle. It was on record that the vehicle was a non - runner at the time the applicant was dismissed. Hou'the respondent could be held liable in damages was not made out. The applicant contended that the respondent failed to repatriate him to his home after termination. Repatriation of an employee depends on many factors that are subject to contract and proof. In any case there must be a nexus between repatriation of an ernployee and removal of his or her vehicles which are not capable of self - propuision, which may put remoteness of damages in issue. I find therefore, that Potani J corectly found that the grounds for such damages were not made out. I therefore find that the intended appeal does not have any prospect of succeeding. I accordingll, refuse to grant leave to appeal out of time. This application is disrnissed. Since the respondent did not appa"T, despite service, I order that each part should bear its own costs. Pronounceel in Chamber,,s on this 74'h dav of October. 2010 at Blantyre. Signed: HON. STICE TWEA, JA