Press Corporation Plc v Benard Ndau and Others (Being High Court of Malawi, Miscellaneous Civil Appeal No. 24 of 2025; MSCA Miscellaneous Civil Application 42 of 2025) [2026] MWSC 4 (12 May 2026)

1 IN THE MALAWI SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA MISCELLANEOUS CIVIL APPLICATION NO. 42 OF 2025 [Being Miscettaneous civit Appeat No 74 Of 2025, High Court of Matawi, Principal Registryl PRESS CORPORATION PLC APPLICANT AND BENARD NDAU 1ST RESPONDENT ELIZABEHT MAFENI DR GEORGE PATRIDGE 3RD RESPONDENT CORAM: HON. JUSTICE L P CHIKOPA SC DEPUry CHIEF JUSTICE Mpaka, P [Mr.] of Counsel for The Applicant Suzi J B [Mr.] of Counsel for The Respondents C Masiyano [Mr.], Cterk RULING/ORDER BETWEEN 2ND RESPONDENT 2 The three respondents were at atl materiat times the appticant's emptoyees. Their services have since been terminated. The lndustrial Retations Court[lRC] found such termination unfair and awarded damages therefor as fottows: b. MK8,258,294,707.52 for the second respondent; and c. MK3,274,349,696.10 for the third respondent. The sum total was MK14,117,516,793.49 payable within 10 days from the date of the compensation opinion namety Aprit 25, 2025. Citing inabitity to pay within the stiputated time and a generat dissatisfaction with the totality of the IRC's judgment the appticant sought a stay of the above judgment/order. ln a ruting dated May 15,2025, the IRC granted a stay but onty on condition that the appticant pays each of the respondents 70% of their award' The appticant escatated the matter to the High court. They not onty sought to appeat against the IRC's judgment but atso apptied for a totat stay of the said judgment pending the determination and hearing of the contemplated appeat. Fotlowing an inter partes hearing at which the respondents prayed for the vacation of the above order and the appticant for a complete stay the High court, in a ruting dated August 11, 2025, sustained the stay but only on condition that the appticant paid75% of the compensation awarded in the IRC to the respondents pro rata. Up from the 70% ordered by the lRC. The appticant further escatated the case to this court. They apptied for a total stay of execution pending the determination of the appeal in the court below. The appl.ication was granted ex parte pending an inter portes apptication of the same itk. Before we coutd hear the said apptication, the respondents brought their own apptication. They prayed that we vacated the stay granted herein. The appticant BACKGROUND a. MK2,684,872,389.87 for the first respondent; 3 atso brought in a pretiminary objection. Because of what we say hereinafter about them we wi[[ not outline them. We, several procedura[ hiccups notwithstanding, heard the apptications and the pretiminary objection. This is the ruling in respect thereof. THE ISSUES There are in truth two issue to be determined in this matter. First is whether or not to sustain the stay order granted ex parte to the appticant- lf yes on what terms if at att. A simpte enough question as matters goes in this court. simpte because the facts before us are targety not in dispute. Neither is the appticable taw or practice of this court in relation to grants or vacation of stays. second is whether or not this court has the requisite jurisdiction to hear and determine the apptication before us. For the record the merits of, more especiatly the appticant's application, witt onty become relevant if we come to the conctusion that we have jurisdiction to hear and determine this matter. THE LAWTHE PRACTICE Like we have stated above the law and practice of this court in retation to grants and vacations of stays is not in much dispute if at att. lf we might reiterate it, it is to the effect that whether or not to grant a stay is in the judicious discretion of the court hearing the apptication. Further that a court witl onty grant a stay if it is, in the view of that court, in the interests of justice so to do. And where, as is the case herein, a court's exercise of its discretion is catled into question such decision witt not be set aside unless it is ctearty untenabte or against the law. See Telekom Networks Malawi plc v Eric Thomson & 43 Others, MSCA Miscettaneous civil Apptication Number 2'l of 2025[unreported], Mike Appel & Gatto v saulosi chilima 2013 MLR 231 and Dr A P Mutharika & Electoral commission v Dr s K chilima & Dr L Chakwera MSCA Constitutional Appeal Number 1 of 2020. ln exercising their discretion vis o vis stays courts take various retevant considerations/ principLes into account. The courts witl therefore not, as a matter 4 of practice deprive successful titigants of the fruits of a [ega[ tussle. Courts wi[[ atso [ook at the prospects of the appeal. lf it tooks more likety to succeed a stay witt most tikety be granted. The reverse is equally true. A successfu[ litigant's abitity to pay back the judgment sums in the event of a successful appeal is atso a relevant consideration. lt they took tess tike[y to pay back the court wi[[ grant a stay because courts generatty frown upon nugatory appeats. ln view of the nature of the dispute before us and of how we intend to resolve it we think we should atso say something about the Repubtican constitution. Especiatty sections 41 and 104 thereof' section 41 [2] provides that every person has the right to access any court of law or any other tribunat with jurisdiction for finat settlement of legat issues. subsection 3 provides that every person has the right to an effective remedy by a court of taw or tribunat for acts viotating the rights and freedoms granted to him or her by the Constitution or any other law. section 104[1] estabtishes the Supreme court of Appeat[scA] and grants it such jurisdiction and powers as may be conferred on it by the constitution or any other taw. ln subsection 2 the Constitution estabtishes the SCA as the highest appellate court in Matawi having jurisdiction to hear appeats from the High court and such other courts and tribunats as an Act of Partiament may prescribe. There are other taws/practices appticabte in this court. Rather than set them out now we think it best that they, where necessary, be referred to in the body of this ruting. THE PARTIES' ARGUMENTS The Respondents They pray that the stay be vacated. ln the atternative that we should not tamper with the conditions attached to it by the court betow. Not necessarity in that order they raised four grounds therefor. 5 Firstly, that this court has no jurisdiction to hear the apptication before us. To the respondent this is an appetlate court. lt deals with appeats. Anticipated or actuat. When it deats with apptications other than appeals it deats with them in the context of such appeats. ln the present instance there is no appeal, actual or pending, in this court between the parties. lf anything, there is an appeal from the IRC in the court betow between the parties, We shoutd not, according to the respondents, therefore be entertaining an apptication for stay in this court retating to a matter that is stilt pending determination in the court betow. on that basis alone the respondents urged us to dismiss this apptication with costs. secondty the respondents contend that the apptication now before us is not the same one that was in the court betow. And because we are, when we are sitting on appeat, supposed to rehear the dispute, in other words to proceed on the very material that was before the court betow, the apptication before us is to that extent incompetent/ irregutar and shoutd be dismissed with costs. See Christina chithila & others v central East African Railways Ltd Miscettaneous civil Apptication Number 13 of 2021[unreported]. Thirdty the respondents contend that the above issues notwithstanding this apptication shoutd be dismissed in any event. lt is without merit. The justice of this matter in their view tilts towards not granting a stay or not varying the conditions on which the court betow granted the stay herein. see Mike Appel and Gatto v Sautosi chilima[supra]. According to the respondents the appticant's appeal has no prospects of success. The facts and the appticabte taw [eave little doubt that any appeal wilt be without success. Lastty, the respondents contended that the applicant shoutd not be altowed to use its own or the respondents' atteged impecuniosity as basis for being granted a stay' The appLicant's atteged impecuniosity remains unproven. The respondents on the other hand cannot, by any stretch of the imagination, be described as persons of littte or no means. To the contrary the respondents are persons of substantial means. They are more than capabte of paying back any monies paid to them 6 pursuant to this case shoutd it become necessary to do so. The specter of a nugatory appeal does not therefore even arise. The respondents, accordingty pray that the applicant's prayer for a stay be dismissed and also that their apptication for a vacation be granted with costs. The ApoIicant Its arguments are the reverse of the respondents'. lt contends that this court has jurisdiction to hear and determine this application. ln its view this is an apptication for stay pending an appeal in the High court. The High court and this court have concurrent jurisdiction in so far as stay is concerned. To that extent this apptication is property before us. The appticant is atso of the view that this court as the ultimate court in this jurisdiction has or shoutd have supervisory powers over the courts betow it. It therefore retains the power to order a stay of execution or proceedings in matters that are substantivety on appeat in the High Court or the courts betow it' On whether or not the apptication before us is the very same one that was before the court bel,ow the appticant responds in the positive. The substance of the apptication is the same. The facts in support thereof are also the same' Fourthty the appticant contends that this is a proper case in which a stay of execution pending appeat shoutd be granted. The interests of justice titt more towards the grant of a stay than a deniat. The appticant made mention of the high prospects of their appeal's success and of the quantum of the money invotved being so targe it is unrealistic to expect the respondents to be in a position to refund it in the event of a successful appeat' The appticant thus prays on the one hand that the respondents' application be dismissed and on the other that the stay granted herein should not only be sustained but atso that the 75% condition be removed the status to subsist until the appeat in the High court is heard/determined. or until further order of this court. THIS COURT'S CONSIDERATION OF THE ISSUES 7 Like we have said above shorn of the staggering amounts of money involved, the voluminous paperwork and lengthy addresses what we have before us is just another apptication for a stay. The appticant is looking for an order atlowing it not to pay the sums awarded in the IRC until the appea[ in the High Court is heard and determined. The respondents on the other hand want to be receive the proceeds of their success in the IRC yesterday. We witt endeavor not to betabour the issues. Accordingty, we witt say it upfront that if it were not for the contestation about jurisdiction, we would have had no probtem in granting a fu[[ stay in this matter. We have tooked at the interests of justice, the merits/demerits of the appeal and the need not to keep successfut titigants away from the fruits of their success. we came to the conctusion that the court betow erroneously exercised its discretion. we are in agreement with the reasoning in christina chithila v CEAR to the effect that it .is not in the best interests of justice to, with an appeat pending, hand over huge sums of money to successful titigants in the name of atlowing successful titigants enjoy the fruits of their success. The question whether they woutd be abte to return such sums in the event of a successfut appeat atways arises, And there is, in our judgment, more sense in withhotding such sums than in paying them out. More harm woutd be caused by a faiture to refund than a detayed pay out. we agree that the respondents are not the poorest Malawians around and woutd, maybe, not have much difficutty in restoring the compensation. we have a slightty different perspective on the foregoing scenario. Because the respondents are not persons without means it must be that they do not need the compensation as much as necessitous persons would. ln other words, they can, for some reasonable time, tive without the awarded sums. But should they, because of passage of time thereby be occasioned any harm, we are sure that ways will be found to make good that harm. An award of interest is one such way. lt woutd reimburse any financiat toss. And so would managing the appeat herein with sPeed. lt woutd keep any losses to the teast possibte minimum. on whether this court has Jurisdiction to hear and determine this matter we, with the greatest respect, betieve that there are factuat and conceptual 8 As we understand the story [and there is reatty no doubt about it] the IRC awarded the respondents compensation in the total sum of K14,'117,576,793.49 the same to be paid within ten days from April 25, 2025. The facts atso show that the lRC, on apptication by the appticant, granted a stay of the foregoing order on condition that 70% of the compensation awarded was paid to the respondents. The appticant was dissatisfied. lt escatated the matter to the High court. on two fronts in our understanding of the facts. First on appeat against the totality of the IRC's decision i.e. against Liabitity and compensation and secondly on an apptication for an order totatty staying the IRC's decision of Aprit 25,2025' The High court upon hearing the application for stay sustained the stay but varied the condition upon which it was granted. lt increased the amount of compensation payabte upfront from707oto75%of the total sum awarded' The appticant was unhappy stitl. lt brought the matter of the stay into this court. we granted a temporary stay and catted the parties for an inter portes hearing to determine whether or not the stay order shoutd subsist until the appeat was futty disposed of. A few things stand out from the above narration and the parties' arguments. First is that if there is an appeal in this matter it is the appeat by the appticant against the decision of the lRc on tiabitity and the quantum of damages. That appea[ is in the High Court. lt witt be with that court untit finat determination or it is otherwise disposed of. second is that the onty question in this matter on which the High court has, to our knowtedge, expressed an opinion is that of stay pending appeat' We have hereinabove set out the nature and extent thereof. Thirdty it is atso a fact that the issue before this court is not the applicant's tiabitity or tevel of compensation to the respondents. lt is not, strictty speaking, even whether or not to grant a stay. The same has atready been granted by the High court and the lRC. The issue, in our view, is the propriety of the condition on misapprehensions that have muddied the jurisdictional debate and unfortunatety led to the respondents coming to the wrong conclusion. 9 which the order of stay was granted. Namety that the applicant should pay upfront 75% of the compensation awarded. We must therefore disagree with the respondents' suggestion that there is, on appeal in this court, a decision of the IRC or of the High Court about the appticant's tiabitity to the respondents or the quantum of damages payabte to them. Fourthl.y it is common knowtedge, and again the parties hereto agree, that stay orders are by their very nature interim. They are meant to preserve the stotus guo white the substantive matter journeys around/atong these courts. Having Looked at the arguments from both sides, the case and [egistative authorities and having subjected att of the above to anatysis we agree that this is an appettate court. That generalty, matters indeed come here by way of actual or contemplated apPeats. It is equatty true however that this court's jurisdiction goes beyond the above referred to narrow path. lt is obvious from section 104 of the Repubtican constitution that this court has originat jurisdiction. lt is atso trite that there are instances where this court hears apptications other than by way of appea[' Apptications for leave for judiciat review or to appeat are examptes that easity come to mind. They do not come here by way of appeat' They are made afresh in this court. Apptications for extension of time within which to appeat are another exampte. They are made in this court. But not by way of appeat' Yet another exampte are apptications for stay. when the High court refuses to grant them, they come to this court not on appeat because they are part of a class of matters over which this court and the one betow enjoy concurrent jurisdiction. A recent exampte is the christina chithila v CEAR case referred to above. Secondty, it appears to us that agreeing with the respondents' arguments on jurisdiction in the instant matter woutd produce tegatty untenabte consequences. lt woutd be against the spirit and intendment of the Repubtican Constitution. Section a1[2] and [3] provides that atL persons are by taw entitted to access the courts for finat setttement/ determination of their tegat issues and thereafter to effective 10 remedies. Denying the applicant access to this court for a final determination on the stay issue ctearly goes against section 41[2] and [3]. It would also go against section 20 of the Repubtican Constitution. That section guarantees alt persons, natural and legat, equality under the taw. lt prohibits discrimination on any basis. lt is trite that a stay only seeks to preserve the sfotus quo white a matter moves along the justice system. Atl titigants in the appticant's position are, at the very teast and whatever the result might be, permitted a hearing and determination on the guestion of stay. Whether there should be a stay pending an appeal or not. They are granted one if the interests of justice so dictate. Conversely, it witt be denied if the interests of justice weigh more towards a deniat. The appticant has an appeal in the court betow. They are seeking a preservation of the status quo pending the hearing and determination of that appea[. That court has refused to grant them a stay pending that appeat. This court and the one betow enjoy concurrent jurisdiction on stays. Refusing the appticant audience in this court for a final determination on the stay question woutd, in our view be tantamount to discrimination and unequal treatment of simitarly ptaced persons. lt woutd offend the spirit and intendment of the abovementioned section 20. Above att it woutd project two most unwelcome untruths. Firstly, that the appticant has been or is being denied a stay because it is not in the interests of justice that one be granted and secondty effectively constitute the court betow as a court of tast resort in this jurisdiction. A court whose decision is final. The tegat reatity is that such is not the case. The substantive [aw and the rutes of procedure in this country shoutd therefore be interpreted in a manner that reftects that [ega[ reatity. We off course do appreciate that the Repubtican Constitution clearly stipulates that access is to courts with jurisdiction. See section 4l[2] of the Repubtican Constitution. That the taw does not a[[ow every Jim and Jack to watk into a court of their fancy, papers in hand and demand that their matter be heard. A[[ we are saying is jurisdiction as a concept shoutd be apptied in a manner that enhances access to the courts rather than inhibits the practicat extents of sections 20 and 41[2] and [3] aforementioned. So that the onty limitations on access to the courts and effective remedies altowable in terms of section 44 of the Republican 11 Constitution shatL be those that are tawfut, reasonabte, recognized by international human rights standards, necessary in an open and democratic society and those that do not negate the very essence of the right to access to the courts and effective remedies. Having therefore looked at atl of the above including the Christina Chinthila v CEAR case we are of the most considered view that the respondents' contention that this court has no jurisdiction to hear and determine the application before us is without merit. DETER\ INATION For the reasons outtined above we find conclude firstly that this court has jurisdiction to hear and determine the matter before us. secondty, that the court betow wrongty exercised its discretion when it granted a stay order herein but only on condition that 75% of the compensation is immediateLy payabte. The condition was and continues not to be, in our judgment, in the interests of justice. Accordingty, and white we maintain the stay order granted by the court below in this matter, we set aside the condition on which it was granted. ln its ptace is entered one requiring the appticant to, within 28 days from this date, deposit with the court betow a guarantee from a futty registered, certified and prudentiatty regutated Matawian bank made out in favour of the Sheriff of Malawi in the sum of MK2OO,O00,O0O.00 as security for any financiat orders that maybe made herein against the appLicant. This order witt subsist untit further order of this or any other court of competent jurisdiction. And to ensure that these proceedings move with minimum detay we also order that the parties herein should before the expiry of 28 days from the date hereof attend the Registrar of the court betow and with him/her agree on a timetable to, in keeping with the High Court's sentiments, speedity dispose of this matter. Costs shat[ be in the cause. 72 Dated at Btantyre this day 12th day of May, 2026 LPC DEPUTY HI CE