MAKAWA V ADMARC (MAK)

HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

MBALAME J.

Date of judgment: 27 May 1994

Civil Cause Number: 1523/1992

For the plaintiff: Chikopa

For the defendant: Chisanga

 

1. Judicial Review- Application for judicial review –Procedure under Order 53 rule 3 of Rules of Supreme Court- Leave of court-Plaintiff to obtain leave before proceeding with an application for judicial review.

2. Judicial Review-Matters falling under judicial review-Matters arising from Public Bodies-Whether dismissal from employment in public body falls under judicial review.

 

Editor’s summary

The plaintiff was employed by the defendant, a statutory body established by an Act of Parliament. The plaintiff was dismissed on 3 November 1992 for insubordination. The insubordination arose from the plaintiff’s failure to go on transfer after being ordered to on several occasions. Although the plaintiff was given deadline to transfer from her duty station to Lilongwe she still refused to move pleading that she was caring for a sick niece who was attending physiotherapy at a hospital and that the plaintiff herself was sickly and required constant attention by her personal doctor based in Blantyre where she was stationed. The defendant considered the plaintiff’s refusal to go on transfer as insubordination, constituting serious misconduct. The defendant therefore terminated the plaintiff’s services.

The plaintiff filed for judicial review under Order 53 rule 3 of the Rules of Supreme Court seeking a declaration that the defendant’s decision terminating her services was in breach of conditions of service. She sought an order setting aside the defendant’s decision and rendering the same null and void. Further the plaintiff sought a declaration that the defendant’s decision was ultra vires and that she be awarded damages for the acts complained of.

At the close of hearing two issues exercised the court’s mind. These were whether the plaintiff had complied with procedure for judicial review and whether the matter was a proper case for judicial review.

HELD- Dismissing action with costs:

1. That Order 53 rule 3 of the Rules of Supreme Court provides that no application for judicial review shall be made unless leave of the court has been obtained in accordance with this rule. In the instant case no such application for leave had been made. Therefore the application was premature and irregular.

2. That a claim in connection with the dismissal of an employee from an employment with a public authority even where the conditions of employment are governed by a statutory instrument is nevertheless a matter of private, not public law. The instant case was not a proper case for judicial review under Order 53 rule 3 of the Rules of Supreme Court.

CASE CITED

R V East Berkshire Health Authority ex-parte Walsh (1984) 3 All E.R. 425 (referred to)

TEXTS CITED

White Book- Order 53 rule 3 Rules of Supreme Court