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    Chitawo Anor V MPICO (5 of 2010) 2010 MWSC 24 (8 October 2010)

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    Chitawo Anor V MPICO (5 of 2010) 2010 MWSC 24 (8 October 2010)

    Uploaded by

    Mada Banda
    19 views4 pages

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    Chitawo Anor v MPICO (5 of 2010) 2010 MWSC 24 (8 October 2010)

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    Chitawo Anor V MPICO (5 of 2010) 2010 MWSC 24 (8 October 2010)

    Uploaded by

    Mada Banda

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    © All Rights Reserved
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    of 4

    IN THE MALAWI SUPREME COURT OF APPEAL

    CIVIL APPEAL NUMBER 5 OF 201.0

    BETWEEN

    LAMSON CHTTAWO ].ST APPELLANT


    MoNrcA DzANJALIMoDZI-- - 2^o AppELLANT

    AND

    MALAWI PROPERTY INVESTMENT COMPANY LIMITED --_--- RESPONDENT

    CORAM HON. E.M. SINGINI, SC., JA

    Mr. Tandwe, of Counsel for the Appellants

    Mr. Likongwe and Mr. Mapira, of Counsel for the Respondent

    Balakasi, Court Interpreter

    RULING

    SINGINI, SC, JA

    This application comes before me sitting as single member of this Court


    under section 7 of the Supreme Court of Appeal Act (Cap, 3:03), I heard it in
    chambers on 2''d November, 201-0, As far as lcan discern, the application seel<s
    three orders of this Court, that is, an order for extension of time within which to
    appealagainst a judgment of the High Court, a second order allowing amendment
    of grounds of appeal and a third order allowing the appellants to amend their
    statement of claim (or the Claim Form, called IRC FORM 1) which they filed in the
    Industrial Relations Court.

    The appellants as employees brought a suit before the Industrial Relations


    Court against the respondent as employer for unfair termination of employment,
    Although the court gave judgment for the appellants and the respondent paid the
    damages as assessed by the court, the appellants were not satisfied with some
    aspects of the judgment and appeaied to the High Court against the judgment.
    The appellants raised some eight groundsof appeal. The High Court, too, in its
    judgment delivered on 23'd Ju|y,2010, gave judgment for the appellants and
    made an order for the assessment of damages by the Registrar which was done
    and the respondent paid the sum assessed by the Registrar which the appellants
    received. The appellants were still dissatisfied with the Resistrar's assessment of
    damages and lodged an appeal to this Court.

    In the meantime, the appellants have changed their lawyers and the new
    lawyers have advised the appellants to appeal instead against the High Court
    judgment itself and not against the order of assessment by the Registrar. With
    this development the appellants find themselves out of time to appeal against the
    High Court judgment and are thus applying to this Court for extension of time
    within which to appeal and also for an order to amend the grounds of appeal to
    re-direct them against the High Court judgment. The reason for this change of
    course or approach in appealing is that the new lawyers have advised the
    appellants that the root source of their dissatisfaction should be the High Court
    judgment itself in that although the learned judge gave judgment in their favour it
    was without making pronouncement on each of the eight grounds of appeal
    which the appellants further claim did not give sufficient or proper guidance to
    the Registrar in assessing damages payable to the appellants. They therefore filed
    with this Court summons for enlargement of time within which to appeal and for
    amendment of grounds of appeal. The summons for this application was filed on
    16'^ September this year, which is over one year after the High Court delivered its
    judgment.

    Ithink sitting as single member of this Court, I will not risk determining the
    second limb of this application for an order to amend the grounds of appeal or
    the application for an order to amend the Claim Form, Form IRC 1. lwould
    consider those two matters to be suitable for determination by a sitting of a full
    panel of this Court should the first limb of this application for an order of
    extension of time be sranted.

    I consider that my determination of the application for extension of time to


    appeal against the High Court judgment turns on a very short point of the length
    of delay in appealing and thus the failure by the appellants to have appealed
    within the prescribed time, which is a period of fourteen days if the High Court
    judgment is an interlocutory order and a period of six weeks in case of any other
    judgment as provided by section 23 of the supreme Court of AppealAct.

    I consider that it must be in very exceptional circumstances that this Court


    will, or ought to, allow extension of time to appeal where there is a delay of this
    magnitude extending to over one Vear. Indeed the law under Order l, rule 4, of
    the Supreme Court of Appeal Rules (Cap. 3:02) does give discretion to this Court
    to grant extension of time to appeal where there are good and substantial
    reasons for failure to appeal within the prescribed time.

    In my judgment I reject as not sufficient the ground of just change of


    counsel, with whatever fresh legal opinion the new counsel nray bring to the case
    as to what should have been a proper approach in filing an appeal. The converse
    of this would be to regard the incompetence or negligence or inadvertence of the
    earlier counsel, or indeed of any counsel, as constituting good ground for delay in
    filing an appeal and justifying the grant of extension of time, which I reject cannot
    be a proper ground. This would have the potential of unduly perpetuating
    litigation or allowing litigation to run out of control. Courts have the duty to bring
    litigation to a close and to avoid the unsettling of the status quo created by court
    judgments that would result from allowing appeals to be lodged long after
    judgments have been delivered and, as should be expected, have been complied
    with.

    In the present matter before me, having rejected the intervention of new
    counsel as proper ground, I consider the delay of over one year to be inordinate
    and that no other good and substantial cause has been advanced for the delav.
    The case of Mbewe v Agriculturol Development snd Morketing Corporation [1993]
    16(1) MLR, p.301 (per Justice Tambala, sitting as a Justice of Appeal and a single
    member of the Court as I am sitting in this case) is on the point where it was held
    that even if good and substantial reasons were shown for the delay, this Court
    may still refuse an application where the delay was inordinate; and in that case a
    delay of three months before bringing the application was held to have been an
    inordinately long delay. I therefore dismiss this application.

    As for the costs of attendance before me, I consider it proper to order that
    each part shall bear its own costs.

    MADE in chambers at Blantyre this 9'n day of November, 2010,

    ,1
    11 I

    t\xj-, I

    HON. E.M. StNGtNt. SC. JA

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