Msosa & Others v FDH Bank Limited (Miscellaneous Civil Application 7 of 2023) [2023] MWSC 23 (8 March 2023)

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 a n affidavit in opposition which is sworn by Ulemu Kambwiri, the Legal Manager of FDH Bank plc . 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 th 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 rd September 2021 the High Court overturned the subordinate court’s decision.

3. The affidavit evidence shows that o n 1 st 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 c opy of th e 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 24th January 2023. The applicant’s legal practitioner avers that a s 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 not iced 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 aver s 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 reas oning was based on the following authorities:

i. Order III r 3 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 I r 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 jurisdic tion 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 24th 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 "SM5".

7. The applicants concede that no appeal was made due to their failure to seek proper leave in accordance with the law. However, t he applicants are still aggrieved with the High Court’s decision of 3rd 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 redundancy. Th ey 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 interest s 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 t he 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 plc, MSCA Miscellaneous Civil Application No. 1 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 informe d 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 wa s an abuse of the process of the court. They argue that the appeal having been dismissed, th e case came to an end and the court is functus officio . Additionally, the respondent states that the applicants ha d 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.”

The respondent also refer s to the case of Longwe v Council of University of Malawi, MSCA Civil Appeal No. 35 of 2000 where the Supreme Court of Appeal ruled that:

"The court will prevent the improper use of its machinery and will in a proper case summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.”

The respondent argue s that allowing the application would violate practice rules and effectively re -open the case, despite its dismissal. They refer to Katsala JA's dissenting opinion in Ngwira & Chiumia v Ngwira, MSCA Civil Appeal No.16 of 2020 where His Lordship emphasized that procedural justice is essential to substantive justice and that failure to comply with procedural prescriptions is an abuse of court process.

11. The respondent in their affidavit note that the notice of appeal was filed within the requisite time and find it perplexing that the applicants seek to enlarge time for appealing against the High Court judgment . It is contended that the application is a desperate attempt to revive the appeal which was dismissed by the full bench of the Supreme Court of Appeal. The respondent believes the final ruling on 2 4 January 2023 ended the applicants' case. Thus, the current application violates the functus officio rule by trying to reopen the matter in the same court. The respondent relies on two cases: Charles Mwasi & others v Malawi Revenue Authority , Civil Appeal No. 13 of 2015 and Chandler v Alberta Association of Architects (1989) 2 S.C.R

848. The latter case set out the general principle that a court's final decision cannot be reopened once a formal judgment is drawn up and entered. The respondent urges the court to dismiss the application as it is functus officio and should not tolerate the tactics devised by the applicants.

12. The respondent contends that, unless the court dismisses the application for the above grounds, the court must find that the reasons for seeking an extension of the appeal period are not good and substantial. The respondent argues that the applicants’ affidavit evidence reveals that the major reason for the present application was the mistake of their lawyer who failed to obtain leave to appeal , which could not be a substantial reason for th e Court to

consider the application. The respondent states that it was confused as to why the applicants' counsel did not check if the leave to appeal was granted after filing the ex-parte application mentioned in paragraph 6 of the applicant’s affidavit. The respondent doubts the applicants' allegation that they filed an application for leave to appeal on 1st October 2021, given the speed at which the appeal was prepared and ready for hearing in December 2022. They suspect the application was wrongfully made on 19th January 2023 in the High Court.

13. The respondent argue s that the applicants' counsel was negligent for not checking if the leave to appeal application was processed and the respondent should not be prejudiced as a result. The respondent claim s that if the applicants' counsel had dummy copies of the application for leave to appeal, they should have mentioned it during the Supreme Court of Appeal hearing on 24th January 2023. It is also submitted that counsel for the applicants would have referred to the dummy copies of such an application when he was erroneously seeking leave to appeal in the High Court on 19 th January 2023 (as shown in "Exhibit "SM 3" of the affidavit in support). The respondent cites Mwaungulu v Malawi News and others [1995] 2 MLR 549 and Mbewe v ADMARC [1993] 16

(1) MLR 301 as precedent on this issue. In Mbewe v ADMARC it was stated that:

“In the instant application, I am not satisfied that the plaintiff's affidavit and his evidence during cross -examination disclose good, substantial and or satisfactory reasons for failure to appeal within the prescribed period. It seems to me that it was simply due to negligence on the part of both the plaintiff and his counsel that they did not give notice of intention to appeal within the statutory period.” The respondent submits that the claim of filing the leave to appeal in October 2021 is an afterthought and granting the application would contradict the principle of finality in litigation.

14. The respondent argue s that even if the reasons given in the application are valid, the delay is inordinate. The respondent emphasizes that past cases have shown that even with good and substantial reasons and arguable grounds for appeal, an application for enlargement of time may be declined due to inordinate delay. They refer to Mbewe v ADMARC, where a three-month delay

was found to be inordinate. The respondent not es that in this case, the application is being made more than a year and five months after the High Court's judgment on 3rd September 2021. Citing Star FM v Celtel Malawi Limited (2012) MLR 380 (SCA) and Thusita Perera v Leasing and Finance Company Ltd, M. Kaporo t/a Meks Variety Centre and Colombo Agencies [2007] MLR 412 (SCA) the respondent argues that if the applicant could not explain why they didn't appeal within the time limit, the court doesn't need to verify if the grounds in the notice of appeal are arguable. The respondent prays for dismissal of the applicants’ application with costs as it is in the interest of justice to end the legal proceedings. Analysis and Determination

15. The applicants seek a court order to enlarge time to enable them to appeal against the judgment of the High Court out of time: National Bank of Malawi v Khoswe [2005] MLR 320 (SCA). As noted by the respondent, the applicants seek an extension of time to appeal the High Court judgment based on two