IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE NO. 705 OF 2000

BETWEEN

CLEMENT
MVIZA ..........……………………………………………..
PLAINTIFF

-AND-

PRESS
CORPORATION LIMITED …....………………………1^ST
DEFENDANT

-AND-

CHARLES PRENTICE
………………………………………… 2^ND
DEFENDANT

CORAM
: T.R.
Ligowe : Assistant Registrar

Theu : Counsel for the Plaintiff

Njobvu : Counsel for the Defendant

RULING

This is the 1st defendant’s
application for the disposal of the plaintiff’s action herein on a
point of law under Order 14A
of the R.S.C.

The plaintiff avers in his
statement of claim that he was at all material times an employee of
the 1^st
defendant. By a partly oral and partly written agreement with the
defendant in 1982 he was required to perform additional duties
of
handling Press Trust matters for reasonable consideration to be
determined by the defendant. The plaintiff states that the agreement

can be inferred from the memo he wrote to the 1^st
defendant on 19^th
June 1997, 5^th
August 1999, 17^th
February 2000 and 2^nd
May 2000. He diligently and satisfactorily performed the said duties
but the defendant in breach of the aforesaid agreement failed
to
render the true and full account of the plaintiff’s remuneration
package for the additional duties as requested or at all
and pay him
the gross value of his services less tax. The plaintiff says he
suffered loss and damage and so he claims an account
for his said
remuneration package and an order for the payment of the same. That
is the plaintiff’s claim as against the 1^st
defendant.

In its defence the 1^st
defendant denies any agreement with the plaintiff to perform any
additional duties for Press Trust for reasonable or any consideration

and any knowledge of any such additional duties performed by the
plaintiff. That if at all the plaintiff performed additional duties

for Press Trust, the same was done as part of his normal duties and
did not entail additional remuneration. The defendant denies
being an
accounting party to the plaintiff in respect of his rendering
services to Press Trust or that it failed to render him
an account of
his remuneration or pay him the same. Further, in the alternative the
defendant states that if there was such an
agreement in 1982, which
is denied, the plaintiff waived his rights under it, in that he did
not demand or request for an account
or payment since that time.

The defendant now applies to
this court for the determination of the following questions of law
and construction:

1. 
   Whether on a proper
   construction of the letters relied upon by the plaintiff to
   establish his claim; the 1^st
   defendant is an accounting party to the plaintiff who is liable to
   render an account to the plaintiff to pay him the gross value
   of his
   services less tax;

   
   

2. 
   Whether at law the 1^st
   defendant is bound to pay the plaintiff ex-gratia payment for work
   done;

   
   

3. 
   Whether on a proper
   construction of the plaintiff’s job description the services the
   subject of this claim would attract extra
   payment apart from his
   usual pay package.

   
   

The 1^st
defendant seeks the following orders;

1. 
   That on a proper construction
   of the letters relied on by the plaintiff to establish his claim,
   the 1^st
   defendant is not an accounting party who is liable to render an
   account to the plaintiff to pay him the gross value of his services

   less tax;

   
   

2. 
   That at law the 1^st
   defendant is not bound to pay the plaintiff ex-gratia payment for
   the work done;

   
   

3. 
   That on a proper construction
   of the plaintiff’s job description the services the subject of
   this claim would not attract extra
   payment apart from his usual pay
   package since they were already contracted for and the plaintiff had
   provided no consideration
   thereof.

   
   

The summons is supported by an
affidavit sworn by Dixies Kambauwa the 1^st
defendant’s Group Operations Executive. He deposes inter alia that
the plaintiff was Registry/Administrative Clerk of the 1^st
defendant and his duties were among others to issue Local Purchase
Orders for repairs and maintenance of Mbumba houses in the Central

Region, Staff members’ houses at Area 15; to issue Local Purchase
Orders and maintenance and fuel requisitions for pool cars
and
official cars at Area 15 and Chiwengo village in Kasungu; to issue
Local Purchase Orders for purchase of uniforms for drivers,

messengers and house servants at Area 15 and Chiwengo in Kasungu; and
to perform any duty assigned by superiors. A job description
is
exhibited with a copy of the plaintiff’s memorandum attached
thereto acquiescing to the fact that the said job description
is his.
They are marked DK1 and DK2 respectively. Kambauwa further deposes
that the plaintiff was later made Assistant Administrative
Officer
and his duties were among others to purchase uniforms for drivers,
messengers and house servants for Press Trust employees,
and to
perform other duties related to the job assigned to him by superiors
from time to time. There is exhibited another job description
marked
DK3. That that time, before Press Holdings Ltd restructured to Press
Corporation Ltd, Dixies Kambauwa was the Group Corporate
Secretary
for Press Holdings Ltd and he used to assign the plaintiff Press
Trust tasks along the lines of DK1 and DK3 and he never
agreed with
him for extra payment for the performance of those duties. He was
therefore not surprised when the plaintiff in a memo
dated 19^th
June 1997 made a request for ex-gratia payment for the work. The memo
is exhibited as DK4. That the plaintiff in subsequent letters
dated
5^th
August 1998 and 17^th
February 2000, exhibited as DK5 and DK6 respectively, persisted in
reiterating his request for ex-gratia payment.

I first have to be satisfied
whether the requirements for employing the procedure under Order 14A
have been complied with. That
is whether:

(a) The defendant has given
notice of intention to defend;

(b) The question of law or
construction is suitable for determination without a full trial of
the action;

(c) Such determination will be
final as to the entire cause or matter or any claim or issue therein;

(d) The party had an
opportunity of being heard on the question of law or have
consented to on order or judgment being made
on such determination.

(a) and (d) are very simple.
The defendant gave notice of intention to defend and in fact served
its defence. The parties have had
the opportunity to be heard on this
matter.

(c) is also simple. A
determination of the questions in this case would finally determine
the claim against the 1^st
defendant on liability. In essence there is one big question. Whether
there was the alleged agreement between the plaintiff and
the 1^st
defendant enforceable by law, which agreement is said to be inferred
from the memo the plaintiff wrote to the 1^st
defendant on 19^th
June 1997, 5^th
August 1999, 17^th
February 2000 and 2^nd
May 2000.

The test of whether the
question is suitable for determination without a

full trial of the action is whether all the necessary and material
facts relating to the
subject matter of the question have been duly
proved or admitted. So the court is not called upon to hear evidence
or make its
own findings of fact but proceed directly on the facts
proved or admitted to determine the question or questions raised
before
it. The facts will be contained in the supporting affidavit
evidence and the affidavit evidence in answer which confirms adopts

or supplements the affidavit in support. Under Order 14 A there is no
room for any dispute between the parties as to the necessary
material
facts.

Counsel for the plaintiff
submitted that the pleadings exchanged between the parties show that
the issues are heavily contested.
Yes that is true. A pleading is a
written statement of facts on which a party relies for his claim or
defence. Normally they would
be in dispute if the defendant is
contesting. That however does not affect a determination of a
question(s) of law or construction
under Order 14A. The facts to be
considered in that application are the proved or admitted facts,
material to the subject matter
of the question. If there arises no
admission from the pleadings or otherwise, then the facts will be
proved by the affidavits
of evidence in support or in answer. At that
point the court will be concerned with whether all the necessary and
material facts
relating to the subject matter of the question have
been duly proved or admitted.

Counsel further submits that
the questions are not suitable for determination under Order 14A. He
contends that one has to brain
storm the proper construction of the
letters in the absence of a proper understanding of a proper context
in which they were issued.
That the full context of the plaintiff’s
employment and basis for the claims which have persuaded the
defendant to file this
application can only be properly and
judiciously determined at trial. In essence he contends that not all
the necessary and material
facts relating to the subject matter of
the question have been duly proved or admitted.

Before me are the three
questions:

4. 
   Whether on a proper
   construction of the letters relied upon by the plaintiff to
   establish his claim; the 1^st
   defendant is an accounting party to the plaintiff who is liable to
   render an account to the plaintiff to pay him the gross value
   of his
   services less tax;

   
   

5. 
   Whether at law the 1^st
   defendant is bound to pay the plaintiff ex-gratia payment for work
   done;

   
   

6. 
   Whether on a proper
   construction of the plaintiff’s job description the services the
   subject of this claim would attract extra
   payment apart from his
   usual pay package.

   
   

As earlier stated, the essence
of these questions is whether there existed an agreement between the
plaintiff and the defendant
enforceable by law. In the statement of
claim, the plaintiff states the agreement can be inferred form the
letters, and the said
letters have been exhibited in this
application.

DK4 was written to the Group
Chief Executive through the group Company Secretary and is entitled
“Ex-GRATIA PAYMENT FOR PRESS
TRUST DUTIES PERFORMED SINCE 1982”.
The first paragraph reads:

“I
would like to ask management if possible to consider an ex-gratia
payment to me for the additional duties and responsibility I

undertook and I am still performing in connection with the Press
Trust.”

He then states what he has done
for Press Trust during the period and concludes by saying:

“… therefore
I would like to ask management to consider giving me an ex-gratia
payment for the additional duties and responsibility
I have
undertaken since 1982 todate.”

DK5 was to the Group Company
Secretary copied to the Deputy Chief Executive (A). It is entitled
“TO CLARIFY SOME OF MY PROBLEMS”.
There are several issues raised
in that memo. Relevant to this action is the following paragraph:

“I
submit my memo to the DGCE(A) through you sir, that was last year, to
ask the management to consider me an ex-gratia payment for
the extra
job which I was doing since 1982 to December 1997 for Press Trust.
Sir, I can say that it is not my mistake to ask for
ex-gratia payment
now as what management mentioned, but it was a mistake of the
management that time, because the management were
fully aware that I
was doing extra job apart from my usual job. Sir it was not easy to
work with Press Trust people in those days.
People were losing their
job, receiving force transfers and some were asked not to be involved
in Press Trust issues. I was even
working during night hours,
Saturdays, Sundays even on holidays and the management were aware of
that. Sir, after I received verbal
reply from you in your office, you
said I should leave the matter with you, because you have noted that
my request is understandable
and genuine. Then you said you would
take up the matter again with management and you would let me know
the outcome. Any way up
to date nothing has been heard from you sir.”

DK6 is to the Group Chief
Executive. The relevant paragraphs read:

“I
have on several occasions written and discussed payment for duties I
performed for Press Trust since 1982. The reason why I am
addressing
the issue to you now sir, is to seek your assistance to have the
matter finalized once and for all.

The
duties I performed necessitated working late hours and on occasions
even during weekends. It is common Labour practice that
when an
employee does extra duties he must be paid for the extra work done.

When
I approached the Deputy Group Chief Executive on the payment issue,
he advised me that he saw sence in payment for the extra
duties I
performrd but such decision require the approval of the Board. Surely
Sir, if he could have been kind enough to present
my request to the
Board, by now a decision would have been made to pay me accordingly.

When
I approached the Group Company Secretary on the same issue, he always
advise me that he had left the matter in the hands of
Mr Kambauwa.
Sir, please follow up the matter I need some ex-gratia payment for
the extra duties I performed since 1982.”

Apart from exhibiting the
letters, the affidavit in support exhibits the plaintiff’s job
descriptions both as Registry/Administrative
Clerk and Assistant
administrative Officer. I find that all the necessary and material
facts relating to the subject matter of
the questions herein have
been duly proved by the affidavit in support. It was within his job
descriptions to perform the jobs
for which he now claims ex-gratia
payment.

The reading of these letters
shows no agreement with the defendant in 1982 to perform additional
duties of handling Press Trust
matters for reasonable consideration
to be determined by the defendant as claimed in the statement of
claim.

Where there is an agreement
between the parties as was in Edwards
v. Skyways Ltd [1964]
1 All E.R. 494 where employers promised an employee an ex-gratia
payment, it was held that the words “ex-gratia” did
not negative
contractual intention but only meant that the employers did not admit
any pre-existing liability to make the payment.

In the present case the
situation is different. The memos from which the agreement is said
can be inferred do not disclose any agreement
between the parties.
Lord Atkin said in Rose
and Frank Co v. J.R. Crompton and Bros Ltd.
[1924] All E.R. 245 at pp 249,250 that;

“To create a contract there
must be a common intention of the parties to enter into legal
obligations, mutually communicated expressly
or impliedly. Such an
intention ordinarily will be inferred when parties enter into an
agreement which in other respects conforms
to the rules of law as to
the formation of contracts.”

There is no indication in the
memos in this case that the defendant had agreed or decided to pay
the plaintiff any ex-gratia payment.
In all the memos the plaintiff
is asking to be considered to be paid. For that reason my answers to
the questions in this application
are in the negative. And I make the
following orders as prayed:

1. 
   That on a proper construction
   of the letters relied on by the plaintiff to establish his
   claim, the 1^st
   defendant is not an accounting party who is liable to render an
   account to the plaintiff to pay him the gross value of his services

   less tax;

   
   

2. 
   That at law the 1^st
   defendant is not bound to pay the plaintiff ex-gratia payment for
   the work done;

   
   

3. 
   That on a proper construction
   of the plaintiff’s job description the services the subject of
   this claim would not attract extra
   payment apart from his usual pay
   package since they were already contracted for and the plaintiff had
   provided no consideration
   thereof.

   
   

The application is granted with
costs.

Made in chambers this ………
day of November 2006

T.R. Ligowe

ASSISTANT REGISTRAR