IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CASE NO. 198 OF 2006
FINLESS B. CHIBWEYA………………….….………………………...PLAINTIFF
CORAM: MANDA, SENIOR DEPUTY REGISTRAR
Nankhuni for the plaintiff
Bakuwa for the defendant
This is a Summons for Summary Judgement which was taken out by the plaintiff under Order 14 of the Rules of the Supreme Court. The application was supported by an affidavit sworn by Mr. Gift Nankhuni Nkhoma, counsel for the plaintiff. The application is opposed by the defendants.
The background of this matter is that the plaintiff was until the 18th of December 2002, an employee of the defendant and at the time her employment was terminated she was a Depot Manager for Liwonde. Before she was posted to Liwonde, the plaintiff was depot manager for Salima and had to be moved after there had been allegations that she had stolen 800 bags of the Targeted Input Programme (TIP) Fertiliser, which allegations turned out to be not true, suffice to say that following these allegations the plaintiff was suspended and was also apparently detained by salaam police for 24 hours. Whilst at Liwonde, there were further allegations that the plaintiff had made some fake authorization of movement of 200 bags of the TIP fertiliser from the defendant’s depot and that she had also falsified sales receipts for 234 bags of maize. Following these allegations, the defendant suspended the plaintiff and eventually terminated her services after a disciplinary hearing and paid her only severance pay. On this basis the plaintiff thus claims damages for defamation, false imprisonment, inconvenience and wrongful and unfair termination of services, and an account for her pension benefits.
This summons only relate to the plaintiff’s last claim for pension benefits which were never paid. In this regard it was the plaintiff’s submission that the defendant has no defence on the ground that the Employment Act is very clear that on termination, an employee is entitled to both a severance allowance and pension benefits. It should of course be mentioned that at the time that the defendant was terminating the plaintiff’s services, there had been a purported amendment, by the Minister, of the 6th Schedule of the Employment Act made under S.35 (1) of the Act, to the effect that on termination of employment, an employee would either be entitled to severance pay or pension benefits, whichever was higher, as opposed to both as provided by Parliament. Indeed, it was on the basis of the purported amendment that the defendants paid the plaintiff only the severance pay, it being higher in the circumstances. Indeed it was the defendant’s submission that at the time of making the payment the law was that the plaintiff could not be paid both severance pay and pension benefits, that the changes on this position happened after the fact and could therefore not apply retrospectively.
It is not being disputed by the plaintiff that she was dismissed in December 2002 and that at the time there was in force the Employment Act (First Schedule) (Amendment) Order of 2002. It is also not being disputed that this order was only declared invalid by the High Court on 5th November 2004, in the case of The State v Attorney General (Minister of Labour and Vocational Training) ex parte Mary Khawela and Six Others Misc. Civil Cause No. 7 of 2004 (unreported). What the plaintiff was arguing was that the Khawela case did have retrospective effect and that this was decided in the case of Lawson Harry Bakasi v Sugar Corporation of Malawi Civil Cause No. 559 of 2004.
I did have occasion to go through the decision in the Bakasi Case and it does not state that the Khawela case has retrospective effect. Indeed the word retrospective in only discussed in the context of the application of the subsidiary legislation on Mr. Bakasi, who had retired before the subsidiary legislation had come into effect. Indeed there would not have been occasion for the court in the Bakasi Case, to hold that another decision of the court could have retrospective effect because judgments of the High Court are only binding on the parties to the case and any subsequent actions and can never have any retrospective effect.
Further, if we are to consider Bennion on Statutory Interpretation, which Mr. Bakuwa cited in his submissions and is also referred to by Justice Chipeta in the Bakasi case, it is quite clear that where subsidiary legislation goes beyond the powers allowed it by the enabling Act is said to be ultra vires the parent Act, such becomes ineffective on a declaration to that effect by a court of competent jurisdiction (emphasis supplied). In this instance the declaration was made on 5th November 2004 as such that is the date on which the Amendment Order became ineffective. Before that date the order was effective and hence could be applied by the defendant on termination of the plaintiff’s services.
Having said this it is the finding of this court that the plaintiff’s summons for summary judgment fails. The costs will be in the cause. I should also point out that in terms of procedure this summons should have been taken out under Order 14A because the plaintiff really was asking the court to make a determination on a point of law.
Made in Chambers this…………….day of………………………………….2006
SENIOR DEPUTY REGISTRAR