mtingwi v malawi application no 0012013 2013 afchpr 3 15 march 2013

AFRICAN UNION UNION AFRICAINE UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES ' RIGHTS COUR AFRICAINE DES DROITS DE L' HOMME ET DES PEUPLES IN THE MATTER OF ERNEST FRANCIS MTINGWI v. REPUBLIC OF MALAWI APPLICATION No. 001 /2013 DECISION Th e Court composed of: Sophia A B AKUFFO , President Fatsah OUGUERGOUZ, Vice President; Bernard M NGOEPE, Gerard NIYUI\IGEKO, Augustine S L. RAMADHANI , Elsie N THOMPSON , Sylva1n ORE . Ben KIOKO , El Hadji GUISSE and Kimelabalou ABA - Judges; and Robert ENO - Registrar, In the matter of: ERNEST FRANCIS MTINGWI V. REPUBLIC OF MALAWI Having regard to the above stated application and having deliberated thereon, the Court decides as follows. The Facts 1 In his application , the Applicant alleges as follows: - - That he, Ernest Francis Mtingwi (hereinafter referred to as the Applicant), was employed by the Malawi Revenue Authority (MRA), a state agency of the Republic of Malawi (hereinafter referred to as the Respondent), on a 4-year contract for the period of 1 January, 2003 to 31 December, 2006 , - That on 4 November, 2004, the Board of Directors of the Malawi Revenue Authonty held an extra-ordinary meet1ng at 2 n1ght at which a resolution to immediately terminate his contract of employment was passed , and approved - That he was informed of the term1nation of his contract the following mornmg 2. The Applicant sued the MRA for damages for wrongful and unfair termination of employment in the High Court of Malawi, Civil Cause No 3389 of 2004: Ernest F. Mtingwi v. Malawi Revenue Authority 3 The matter was heard in the H1gh Court of Malawi on 24 March 2005 , and the Court declared the dism1ssal unlawful and ordered that three months salary and benefits be paid to the Appl1cant because the Applicant's contract was terminated w1th1out notice. 4 According to the Applicant, after the award of damages, he found that a number of items of benefits as damages were accidentally om1tted during the preparation of exh1b1ts submitted to the Registrar, and therefore the order of assessment of damages did not reflect or embody the manifest intention of the High Court order on damages. According to the Applicant, benefits that were in the contract of employment and conditions of serv1ce of MRA were accidentally omitted . 5 An application was made to the High Court in January 2007 by the Applicant wh 1ch broug ht to the attention of the Court the said accidental om1ss1ons and asked the Court to consider correcting 3 it. The Application was placed before His Honor, Ass1stant Registrar Chigona , who determined that there were no accidental omissions in the order of assessment of damages and dismissed the Application 6 The Applicant then appealed to a Judge in chambers. The appeal was placed before Hon. Justice Kamwambe of the High Court who ruled that there were indeed accidental omissions 1n the order of assessment of damages. 7. The MRA then appealed the ruling to the Malawi Supreme Court of Appeal. On 28 May 2010 , the Malawi Supreme Court allowed the appeal and dismissed the H1gh Court judgment of Kamwambe J. 8. The Applicant has appealed against the ruling of the Malawi Supreme Court of Appeal to the African Court on Human and Peoples' Rights , praying the latter for: • "A Reversal of the lower court's order; • An order that the words "all terminal benefits" in the contract of employment between the Applicant and MRA means salary and benefits as per the contract of employment and conditions of service of MRA to the end of the contract of employment; • An order that all items of terminal benefits that were accidentally omitted for the rema1nder of the contract of 4 employment to be paid to the Appl tcant as damages for the unlawful dismissal of the Applicant; • Costs of this action" Procedure 9 The application dated 17 January, 2013 , was received at the Reg istry of the Court on 1 February, 2013 , and was regtstered as Appltcation 001/2013 - Ernest Francis Mttngwi v. the Republ tc of Malawi 10. On 6 February , 2013 , the Registrar wrote to the Applicant acknowledging receipt of the application Applicable Law 11 . In accordance wtth Article 22 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an Afncan Court on Human and Peoples' Rights (the Protocol ) and Rule 8(2) of the Rules of Court (the Rules) , Justtce Duncan Tambala , member of the Court of Malawian national tty, recused himself. 12. Having regard to Article 3 of the Protocol , the Court deliberated on tts competence to receive the application 13. Article 3(1) of the Protocol provides that the jurisdiction of the Court shall extend to all cases and disputes submitted to 1t concerning the interpretation and application of "the Charter, thts Protocol and any other relevant Human Rights instrument ratified by the States concerned" 5 14. The Court notes that it does not have any appellate JUrisdiction to receive and cons1der appeals in respect of cases already decided upon by domestic and/or regional and similar Courts. 15. As this is an appeal by the Applicant against the decision of the Malawi Supreme Court of Appeal, a domestic Court in the Respondent State, the Court concludes that, it does not have the jurisd tction to recetve the appl1cat1on . 16 For these reasons , THE COURT, unanimously. 1. Finds that, in terms of Arttcle 3 of the Protocol , it has no jurisdiction to recetve the application instituted by Mr Ernest Francis Mtingwi against the Republ ic of Malawi. ii. Rules that this application be and the same is hereby struck out for want of jurisdiction. Done at Arusha , this fifteenth day of March,Two Thousand and Thirteen , in Engltsh and French , the English text being authoritative Signed· Robert ENO, Registrar.~ 6