In this article our legal analyst JOAB CHISONI exposes the gaps and the conspiracy in the Brian Banda judgement which questions the integrity of the entire ruling.
There are a few observations from the ‘Brian Banda judgment’ which is dated 22nd December 2023.
Paragraph 1 of the judgment mentions that “the IRC Form was filed on 28th day of September 2022 and was served on Respondent on 26th October 2022 at 2:45 pm”.
Paragraph 2 of the same mentions that the Applicant obtained a default judgment on 7th November 2022. This was so because the Respondent had not yet filed a reply as to whether to contest or not to contest the Applicant’s application.
The Industrial Relations Court Procedure Rules provides the period within which the Respondent must file a response as to whether they intend to contest or not to contest the application. According to Rule 12 (3) the Respondent must file the response within 14 days from the date of service.
It was when the 14 days expire without response that the Court may proceed to enter a default judgment in favour of the Applicant. For avoidance of doubt, Rule 26 Sub-rule 1 paragraph (a) specifically state in respect of default judgment that “the Registrar shall enter judgment by default against a party if the party does not respond to a statement of claim or an application within the prescribed TIME LIMIT or any extension granted by the Court within which to deliver a response”.
Calculating the number of days from 26th October 2022 (when the Respondent was served) to 7th November 2022 (when default judgment was entered), it gives exactly 12 days inclusive Saturdays and Sundays.
According Rule 2 of the Industrial Relations Court (Procedure) Rules a day is interpreted to mean “any day other than a Saturday, Sunday or public holiday”.
Taking this into consideration, the total number of days spent from date of service to date of entering default judgment reduce to 8 days (i.e. excluding Saturday 29th October 2022; Sunday 30th October 2022; Saturday 5th November 2022 and Sunday 6th November 2022).
From the foregoing, it axiomatically shows that the default judgment (which was entered just after 8 days instead of 14 days) WAS, in the circumstances, PREMATURE. That aspect provides a ground for challenging that default judgment.
On the same 7th November 2022 when the Applicant obtained a default judgment, the Respondent filed a motion to set aside that default judgment and that motion was scheduled to be heard on the 20th day of June 2023. On that appointed day, the Respondent “did not appear in court and no reason was given to the Court on their absence on their absence”, effectively paving way for the motion to be dismissed. This is according to paragraph 3 of the default judgment dated 22nd December 2023 currently making headlines.
This meant that the 7th November 2022 default judgment which was in favor of Brian, awarding him compensation had to stand. The next step: The Court issued a notice of hearing of the assessment trial and this was, according to paragraph 4 of the judgment, served on the Respondent on 11th August 2023, the service of which was acknowledged by one C. Chitsonga from the Attorney General Chambers.
Counsel, Aubrey Maseko, from the AG Chambers filed a motion for stay of assessment trial proceedings pending hearing of an application to set aside the default judgment which was entered on 22nd November 2022 and the Court had set 25th August 2023 as the date of hearing of that motion.
While the Court mentioned in the judgment at para 3 that due to non-appearance of the Respondent in court on 20th June 2023 for the hearing of application to set aside the default judgment was dismissed, the judgment is illuminating further that the application for a hearing to set aside the assessment of damages trial PENDING AN APPLICATION TO SET ASIDE THE DEFAULT JUDGMENT was scheduled to be heard on 25th August 2023. The judgment further says this (25th August 2023) was the same day when the assessment of damages was to be heard.
25th August 2023 came and, according to the judgment, Counsel from the AG Chambers never showed up nor did he communicate with the Court or fellow Counsel for the Applicant as to why the absence.
However, Counsel from the AG Chambers has claimed that while the matter was scheduled to be heard at 2:00pm on the said 25th August 2023, he left his base station in Lilongwe at the crack of dawn and arrived at the hearing venue by 10:00 am. Nevertheless, he mentions, the Court had changed the timing from 2:00 pm to 8:30 am such that by that time he was still in transit thereby no show in the Courtroom.
If this claim that the timing was rescheduled from 2:00 pm to 8:30 am without the same being communicated to him beforehand is anything truthful, then there has been a serious maladministration which is open to a challenge. But should it happen that such a claim is actually false, then Counsel has a lot of questions to answer and opening himself for disciplinary actions in his office.
According to the Court records as proclaimed in the judgment, this was the 3rd time this Counsel failed to show up in Court to attend to his own application/motion hearing.
This is the point at which red flags are starting to appear as regards the sincerity of the Counsel from the AG Chambers in effectively representing the matter. It begins to smell of a move within a scheme calculated at aiding the Applicant to secure default judgment.
If I were a journalist, I would be at the Capital Hill by now to give this Counsel a few questions. Further, if I were the Attorney General, I would probe into the actions of this Counsel who was carrying my office flag in that delegated duty to understand his true allegiance in the matter.