Gladys Chamba v Malawi Broadcasting Corporation and Old Mutual Life Assurance Company Malawi Limited (IRC Matter Number 606 OF 2018) [2026] MWIRC 16 (21 May 2026)

sA REPUBLIC OF MALAWI IN THE INDUSTRIAL RELATIONS COURT OF MALAWI PRINCIPAL REGISTRY IRC MATTER NUMBER 606 OF 2018 BETWEEN: GLADYS CHAMBA………………..……………………...………………………………...APPLICANT AND MALAWI BROADCASTING CORPORATION…………..………..……………….1ST RESPONDENT OLD MUTUAL LIFE ASSURANCE COMPANY MALAWI LIMITED…………..2ND RESPONDENT

Coram

WYSON CHAMDIMBA NKHATA (DEPUTY CHAIRPERSON) Mr. Sepulo - of Counsel for the Applicant Mr. Lapukeni – Representative of the 1st Respondent Ms. Chitwanga - of Counsel for the 2nd Respondent Mr. Zakaria - Court Clerk and Official Interpreter RULING ON MOTION TO DISMISS THE MATTER FOR BEING STATUTE-BARRED

Introduction

This ruling concerns the Respondents’ Notice of Motion to dismiss the Applicant’s claim on the ground that it is statute-barred. The motion is brought pursuant to Rule 16(1) and (2) of the Industrial Relations Court (Procedure) Rules, 1999, as read with section 4 of the Limitation Act and the Court’s inherent jurisdiction. The application arises from a pension-related dispute in which the Applicant seeks an account of her terminal and pension benefits and payment of any pension benefits found due. The Respondents contend that the Applicant’s cause of action arose in or about March or April 2010, when she received pension benefits which she considered inadequate. Their position is that the proceedings before this Court were commenced in 2018, approximately eight years after the cause of action arose, and are therefore outside the six-year limitation period prescribed under section 4 of the Limitation Act. On that basis, they invite the Court to dismiss the matter without proceeding to a hearing on the merits. The Applicant opposes the motion. Her position is that the matter was not first commenced in 2018. She contends that she commenced proceedings in the High Court by Originating Summons filed on 10th January 2011 and issued on 12th January 2011, well within the six-year limitation period. She further contends that the proceedings now before this Court are a continuation of that earlier matter following the High Court’s judgment of 29th August 2018, by which the matter was transferred to the Industrial Relations Court and she was directed to comply with the procedure and practice obtaining in this Court. At the hearing of the motion, Counsel for the Respondents argued that filing proceedings in the High Court did not interrupt the running of time because the High Court was not the proper forum for the labour dispute. Gladys Chamba v Malawi Broadcasting Corporation & Another, IRC Matter No. 606 of 2018 Page 1

Counsel submitted that the proceedings in the High Court were incompetent, that such incompetence could not be cured by referral or transfer to this Court, and that time continued to run until the Applicant filed IRC Form 1 in 2018. Counsel for the Applicant, while accepting that the cause of action arose around 2010, argued that the action was validly commenced in the High Court in 2011 and was later transferred to this Court. He submitted that the transfer did not create a fresh claim but preserved and continued the earlier proceedings. The issue for determination is therefore whether, for purposes of limitation, the Applicant’s action should be treated as having been commenced in 2011 when she filed the Originating Summons in the High Court, or in 2018 when she filed IRC Form 1 following the High Court’s direction. The answer to that question will determine whether the claim is statute-barred and whether the Respondents’ motion should succeed. THE RESPONDENTS’ CASE IN SUPPORT OF THE MOTION The Respondents’ case is that the Applicant’s claim is statute-barred and should be dismissed at this stage. The motion was brought pursuant to Rule 16(1) and (2) of the Industrial Relations Court (Procedure) Rules, 1999, as read with section 4 of the Limitation Act and the Court’s inherent jurisdiction. The First Respondent relies on the affidavit sworn by Valentine Lapukeni, its Legal and Compliance Officer, and on the oral and written submissions advanced in support of the motion. The First Respondent also adopts the Second Respondent’s affidavit and skeleton arguments in so far as they apply to it. In the affidavit in support, the First Respondent states that the Applicant’s cause of action is founded on events which occurred on or before March 2010. Its position is that, after the Applicant exited employment, she was paid all her terminal dues in accordance with the Malawi Broadcasting Corporation Pension Fund Rules applicable at the time. The First Respondent refers to its Statement of Reply, IRC Form 2, where it had pleaded that the Applicant received pension payments, including a withdrawal in July 1999, a refund in May 2004, compensation following the Ombudsman’s determination, and a further pension withdrawal in March 2010. The First Respondent therefore treats the March 2010 payment as the latest possible date from which the Applicant’s complaint about pension benefits could have arisen. The First Respondent further states that the Applicant commenced the present matter before this Court in October 2018, more than eight years after the alleged cause of action arose. It asserts that the Applicant neither sought nor obtained leave of Court to bring the claim out of time. Nor, according to the First Respondent, did the Applicant plead any explanation capable of extending or suspending the limitation period. On that basis, the First Respondent’s position is that the action was commenced outside the statutory period and is therefore legally incompetent. Through the adoption of the Second Respondent’s affidavit and skeleton arguments, the First Respondent aligns itself with the argument that a pension-related claim of this nature is contractual in character and falls within section 4 of the Limitation Act. The Respondents submit that section 4 prescribes a six-year limitation period for actions founded on simple contract and that once the Applicant failed to commence competent proceedings within six years from March or April 2010, the right to pursue the claim through litigation became unenforceable. A central part of the Respondents’ case is that the proceedings filed in the High Court in 2011 did not save the Applicant from the operation of limitation. Counsel submitted that the High Court found that it did not possess original jurisdiction to hear the labour dispute as a court of first instance and that the matter ought to have been filed in the Industrial Relations Court from the beginning. The Respondents argue that the High Gladys Chamba v Malawi Broadcasting Corporation & Another, IRC Matter No. 606 of 2018 Page 2 Court proceedings were therefore incompetent and could not be treated as proceedings which interrupted time for purposes of limitation. The Respondents further submit that the High Court judgment did not state that the matter, once brought before the Industrial Relations Court, would be treated as a continuation of competent High Court proceedings for purposes of limitation. Their position is that an action commenced in the wrong forum is invalid and incompetent. On that reasoning, an incompetent action cannot be transferred in a manner that cures the original defect or converts it into a valid action. The Respondents therefore argue that the filing of the Originating Summons in the High Court in 2011 did not stop time from running. The Respondents also submit that the Limitation Act itself provides specific circumstances in which time may be postponed, suspended, extended, or caused to run afresh, and that filing proceedings in a wrong forum is not one of them. They referred to the provisions of the Limitation Act which recognise limited circumstances in which the running of time may be affected, including disability, acknowledgment, part payment, fraud, and mistake. Their submission is that the Applicant’s situation does not fall within any recognised statutory exception. Consequently, time continued to run from March or April 2010 until the Applicant filed IRC Form 1 in this Court in 2018. The Respondents further place weight on the Applicant’s duty to act diligently. They submit that it was the Applicant’s responsibility, through her legal practitioners, to choose the proper forum. They argue that the Applicant cannot simply rely on the High Court proceedings to avoid limitation when the claim had been commenced before a court which, according to the Respondents, was not the competent court of first instance for labour matters. They emphasise that the Originating Summons was filed in 2011 and the High Court judgment was delivered only in 2018, leaving a substantial period during which the Applicant could have considered whether the claim had been properly instituted and taken steps to regularise the position. The Respondents also contend that delay has caused or is likely to cause prejudice. They submit that if the matter proceeds to trial after such delay, questions of prejudice, availability of records, faded recollection, currency devaluation, and the practical consequences of the lapse of time may arise. Their underlying position is that the delay supports dismissal because the action was brought outside the statutory period and no legally recognised basis has been shown to save it. The Respondents therefore characterise the claim as frivolous, vexatious and an abuse of the Court’s process. In the affidavit, Mr Lapukeni states that the Applicant’s failure to commence the action within the statutory time limit undermines orderly conduct and management of proceedings and goes to the interests of justice. The Respondents’ prayer is that, since the matter was commenced outside the limitation period, without leave, justification, or a recognised statutory basis for extension, the Court should dismiss it without proceeding to the merits. In summary, the Respondents’ case is that the Applicant’s pension claim accrued no later than March or April 2010; that any action founded on that claim had to be brought within six years; that the filing of proceedings in the High Court in 2011 did not interrupt limitation because those proceedings were incompetent and instituted in the wrong forum; that the present proceedings were only properly commenced in this Court in 2018; and that the claim is consequently out of time. The Respondents therefore ask the Court to dismiss the matter as statute-barred. THE APPLICANT’S POSITION IN OPPOSITION TO THE MOTION The Applicant opposes the Respondents’ motion to dismiss the matter as statute-barred. Her position, as discerned from the affidavit in opposition sworn by Counsel Cassius Omar Chidothe, the Applicant’s Gladys Chamba v Malawi Broadcasting Corporation & Another, IRC Matter No. 606 of 2018 Page 3 skeleton arguments, and the oral submissions made by Counsel Sepulo at the hearing, is that the Respondents’ application proceeds on a mistaken understanding of when the action was commenced. The Applicant accepts that the dispute arose from the pension payment made in or about April 2010, but denies that the action was first commenced in this Court in 2018. Her case is that the action was commenced in the High Court in January 2011, within the six-year limitation period, and that the proceedings before this Court are a continuation of those earlier proceedings. In the affidavit in opposition, the Applicant states that she ceased to be an employee of the First Respondent through retirement and that, in April 2010, she received from the First Respondent pension benefits in the sum of MK259,319.45, which the First Respondent said had been remitted by the Second Respondent. She was dissatisfied with that amount because, according to her, it did not represent pension benefits for the whole period of her service with the First Respondent. Her case is therefore not merely that payment was delayed, but that the amount paid was incomplete and that she was underpaid. The Applicant further states that, following that dissatisfaction, she commenced proceedings in the High Court by Originating Summons filed on 10 th January 2011 and issued on 12 th January 2011. In those proceedings, she sought orders requiring the First Respondent to provide a true account of her terminal benefits, including conditions of service and other relevant documents; an order requiring the Second Respondent to provide an account of her pension benefits; an order requiring the Respondents jointly or severally to pay pension benefits to be assessed; costs; and any further relief deemed fit by the Court. Those claims, according to the Applicant, are substantially the same claims that are now before this Court. The Applicant’s position is that the High Court proceedings were not abandoned, withdrawn, struck out, or dismissed. Rather, after hearing the Originating Summons, the High Court delivered judgment on 29 th August 2018 and determined that the matter had to proceed before the Industrial Relations Court. The High Court then ordered that the proceedings be transferred to the Industrial Relations Court and directed the Applicant to comply with the procedure and practice of this Court by 31st October 2018. The Applicant says she complied with that direction by filing IRC Form 1 in this Court on 31st October 2018. On that basis, the Applicant argues that the present proceedings should not be treated as a fresh action commenced in 2018. Instead, they are said to be a procedural continuation of the proceedings earlier commenced in the High Court in 2011. The Applicant contends that the relevant date for limitation purposes is therefore January 2011, not October 2018. Since the cause of action arose in 2010 and the High Court proceedings were commenced in 2011, the Applicant maintains that the claim was brought well within the six-year period prescribed by section 4 of the Limitation Act. Counsel Sepulo advanced the same position orally at the hearing. He submitted that it was not in contention that the cause of action arose around 2010. The real dispute, in his submission, was whether the action was statute-barred having regard to the prior High Court proceedings. He argued that the matter was originally instituted in the High Court in 2011, within time, and that the High Court later transferred the matter to this Court with directions as to the form the proceedings should take. Counsel submitted that such transfer did not create a new action but preserved the existing cause of action and moved it to the appropriate forum. The Applicant further contends that limitation was interrupted or, at the very least, should be treated as having been satisfied once the action was commenced in the High Court. The Applicant’s answer to the Respondents’ argument is that a party who has instituted proceedings within time before a court should not be treated as having slept on her rights merely because that court later directs that the matter proceed before another court. The mischief addressed by limitation statutes, according to the Applicant, is indolence or Gladys Chamba v Malawi Broadcasting Corporation & Another, IRC Matter No. 606 of 2018 Page 4 failure to pursue a claim within the prescribed period. On her case, there was no such indolence because she acted within approximately one year of receiving the pension payment complained of. The Applicant also argues that the High Court proceedings were not a nullity. In her skeleton arguments, reliance is placed on the constitutional jurisdiction of the High Court under section 108(1) of the Constitution and the status of the Industrial Relations Court under section 110(2). The Applicant’s case is that the High Court is a superior court of record with unlimited original jurisdiction, and that proceedings commenced there are not automatically void merely because the dispute is labour-related and may more appropriately be heard by the Industrial Relations Court. The Applicant relies on authorities cited in her submissions for the proposition that labour matters filed in the High Court may be transferred to the Industrial Relations Court rather than dismissed as null proceedings. A substantial part of the Applicant’s legal position is that the Respondents’ argument treats the filing in the High Court as if it were legally meaningless. The Applicant rejects that approach. She submits that the High Court itself did not treat the matter as a nullity, because it did not dismiss or strike out the Originating Summons. It instead ordered that the proceedings be transferred to the Industrial Relations Court and required the Applicant to comply with the procedural requirements of this Court. The Applicant argues that this procedural direction is inconsistent with the Respondents’ contention that the High Court proceedings were wholly void and incapable of preserving the claim. The Applicant further submits that the Respondents’ approach would produce an unjust result. Counsel Sepulo argued that section 4 of the Limitation Act should not be applied mechanistically so as to deprive the Applicant of substantive relief where she had already commenced proceedings within time. He submitted that the purpose of limitation law should not be stretched to punish a claimant who placed her claim before a court within the statutory period and then waited for the Court to determine the proper forum. The Applicant’s position is that the delay between 2011 and 2018 was not a period during which she did nothing. The matter was pending before the High Court during that time. The Applicant also relies on the principle of substantive justice. Her skeleton arguments contend that pension benefits are deferred employment benefits earned through service and that courts should be slow to defeat such claims on technical procedural grounds where the claimant took steps within time. The Applicant argues that dismissing the matter would elevate procedural form over substantive justice, especially because the Respondents were aware of the claim from 2011 and cannot properly claim surprise arising from the 2018 filing in this Court. The Applicant also answers the Respondents’ argument on prejudice. Her position is that any prejudice flowing from the lapse of time must be considered against the fact that the Respondents knew of the claim from the High Court proceedings. The Applicant maintains that the Respondents were not confronted with the claim for the first time in 2018. The dispute had already been raised in 2011, and the Second Respondent participated by filing an affidavit in opposition in the High Court proceedings. On that reasoning, the Respondents’ prejudice argument cannot override the fact that the claim was pursued within time. The Applicant’s position is that any procedural error in the initial choice of forum should not defeat a claim which was placed before a court within the limitation period, particularly where the High Court did not dismiss the proceedings but transferred them to this Court. In essence, the Applicant’s opposition rests on five propositions. First, the cause of action may have arisen in 2010, but proceedings were commenced in the High Court in January 2011. Secondly, those proceedings were commenced within six years and therefore satisfied section 4 of the Limitation Act. Thirdly, the High Court proceedings were not null proceedings, because the High Court did not dismiss them but transferred them to this Court. Fourthly, Gladys Chamba v Malawi Broadcasting Corporation & Another, IRC Matter No. 606 of 2018 Page 5 filing IRC Form 1 in 2018 was compliance with the High Court’s procedural direction, not the commencement of a new claim. Fifthly, it would be unjust and contrary to substantive justice to dismiss a pension claim on limitation grounds where the Applicant had pursued the claim in court within time and the Respondents had notice of it from 2011. The Applicant therefore prays that the Respondents’ motion be dismissed and that the matter proceed to determination on its merits.