Msosa and Others v FDH Bank Limited (Miscellaneous Civil Application 7 of 2023) [2023] MWSC 5 (8 March 2023)

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REPUBLIC OF MALAWI IN THE MALAWI SUPREME COURT OF APPEAL MISCELLANEOUS CIVIL APPLICATION No. 7 OF 2023

BETWEEN:

LIMBANI MSOSA & OTHERS APPLICANTS

AND

FDH BANK LIMITED RESPONDENT

Ruling

1. The applicants filed a motion seeking an order enlarging the time for

appealing against the High Court’s decision, under section 23 (2) of the Supreme Court of Appeal Act as read with Order III rule 4 of the Supreme Court of Appeal Rules. The application is supported by grounds stated in an affidavit in support sworn by Shepher Mumba, the legal practitioner for the applicants. The respondent opposes the applicants’ motion through an affidavit in opposition which is swom by Ulemu Kambwiri, the Legal Manager of FDH Bank ple, The parties also filed skeleton arguments in support and in opposition to the application which were relied upon by counsel for both parties at the hearing. The application was initially made ex parte but having examined the matter on 20" February 2023, it was ordered that the motion be brought by way of inter partes hearing to afford the respondent opportunity to be heard on the application

The Applicants’ Case

2. In the applicants’ affidavit supporting an extension of the appeal period against the High Court's decision, the legal practitioner depones that the applicants were employees of the respondent who were declared redundant in

2016, They commenced a legal action in the Industrial Relations Court alleging unfair dismissal due to lack of consultation. Their action was successful. In turn the respondent lodged an appeal in the High Court and in a judgment dated 3% September 2021 the High Court overturned the subordinate court’s decision.

3. The affidavit evidence shows that on 1 October 2021, which was a period within the six weeks as is required by law, the applicants lodged a notice of appeal. A copy of the notice of appeal is marked and exhibited as "SMI". On the same day, the applicants filed an ex parte application for leave to appeal and retained a dummy copy of the said application that was duly stamped as evidence of the filing process, A copy of the application is marked and exhibited as "SM2"

4. The documents in support of the appeal having been processed, the appeal ‘was entered and set down for hearing in the Malawi Supreme Court of Appeal on 24" January 2023. The applicant's legal practitioner avers that as he was preparing for the hearing of the appeal, he noted that there was no order for leave to appeal. When he checked on the court’s file he noticed that the documents of the ex parte application that he had prepared were not on the case file. He states that he prepared a new set of documents for the application for leave by making a few changes to the original application and presented it for consideration before the Judge of the court below, who proceed to make an order granting leave to appeal. A copy of the application and the order for leave were marked and exhibited as "SM3" and "SM4", respectively.

5. The legal practitioner avers that, at that stage, he took the documents of the application for leave before the High Court because after considering the relevant rules he formed the wrong impression that the High Court was a competent court where the applicants could seek leave to appeal. The legal practitioner contends that his reasoning was based on the following authorities:

i, Order III r3 of the Supreme Court of Appeal Rules provides that, leave to appeal can be granted by the court below or the Supreme Court of Appeal. Based on this provision counsel believed that the High Court had jurisdiction.

ii, Order Ir 18 of the Supreme Court of Appeal Rules provides that where the Court and the High Court have concurrent jurisdiction, then the application should first be taken to the High Court, led counsel to think that the High Court was a proper forum

iii, Order III r 19 of the Supreme Court of Appeal Rules provides that where an appeal has been entered, all applications lie to the Court. Counsel states that he formed the erroneous view that an appeal had not been entered because there was no leave to appeal and that the High Court still retained the jurisdiction on the question of leave

6. However, it is not disputed that the Court found counsel’s reasoning erroneous and clearly pointed to the fact that the application for leave at that late hour should have been made before the Supreme Court of Appeal in line with Order III rule 19 of the Supreme Court of Appeal Rules. On 24" January 2023 the full bench of the Court held that there was no competent appeal before it and dismissed the matter as shown in exhibit marked "SMS".

7. The applicants concede that no appeal was made due to their failure to seek proper leave in accordance with the law. However, the applicants are stil aggrieved with the High Court’s decision of 3" September 2021 and intend to appeal against the judgment. The applicants submit that the six weeks” time limit for bringing appeals under section 23(1)(a) and (b) of the Supreme Court of Appeal Act long expired and are crying for the leniency of the Court that they should be granted an order enlarging time within which they can appeal so that they can be heard on the question of their redundaney. They submit that the appeal raises very important issues which if determined will give an opportunity to the Malawi Supreme Court of Appeal to guide the nation regarding how mass terminations must be conducted in volatile economic conditions. The applicants assert that the Court in examining this application should also consider the interests of justice for the wider good of the applicants, the nation and industrial justice and must bear in mind that they did not deliberately flout procedures and annoy the Court

8. In support of their arguments the applicants rely on the cases of Mwaungulu v Malawi News and others {1995] 2 MLR 549, Chiume v The Attorney General 2000-2001 MLR 102 (MSCA), Barnet Nansongole v National Bank of Malawi ple, MSCA Miscellaneous Civil Application No. | of 2020 and The State v The Minister of Finance, ex parte Steven Majighaheni Gondwe, MSCA Civil Appeal No. 68 of 2016, where Chipeta, JA, stated that applicants seeking enlarged time to appeal must meet the requirements in Order III Rule 4 of the Supreme Court of Appeal Rules. In short, the applicants request the Court to extend the deadline for filing an appeal against the High Court's decision dated 3 September 2021. The applicants assert that they have good and substantive reasons for not filing an appeal within the stipulated time limit and that there are also good grounds to justify an appeal.

The Respondent's Case

9. The respondent opposes the application for an order for enlargement of the time for appealing. The legal manager stated in the affidavit in opposition that the Supreme Court of Appeal dismissed the appeal for being incompetent on 24 January 2023, and the respondent was informed so by their lawyers. The respondent argues that the applicants admitted this position in paragraph 12 of their affidavit and that exhibit "SM 5" also confirmed it.

10.The respondent asserts that seeking enlargement of time for appealing under such circumstances and have the matter re-litigated was an abuse of the process of the court. They argue that the appeal having been dismissed, the case came to an end and the court is functus officio. Additionally, the respondent states that the applicants had not demonstrated good and substantial reasons for the alleged failure to appeal within the prescribed time. The respondent cites Hunter v Chief Constable of West Midlands (1982) AC 529/0981) 3 All ER 727 at 729 (HL) where Lord Diplock explained the principle of abuse of court process in this manner:

"It is an inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring administration of justice into disrepute among right-thinking people.”

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