THE CATHOLIC UNIVERSITY OF MALAWI

FACULTY OF LAW

2022 ACADEMIC YEAR

DEPARTMENT OF PRACTICAL LEGAL STUDIES

CLINICAL LEGAL EDUCATION II

FROM: GROUP TWO PARTICIPANTS:

NICOLE CHOMBO: LLB/NE/2020/0497

MOSES MCHACHA: LLB/NE/2020/1081

PAUL ZIMBIRI: LLB/NE/02/2017/033

TO: CARNISIUS TAMANDANI KADYAMPAKENI

DUE DATE: 8th NOVEMBER 2022

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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 REPUBLIC OF MALAWI

IN THE HIGH COURT OF MALAWI

MZUZU DISTRICT REGISTRY
IRC APPEAL NO. 41 OF 2011
BETWEEN
PIDA MPANDO ON HIS OWN BEHALF AND ON
BEHALF OF SUSPENDED EMPLOYEES OF HITERE
COMPANY LIMITED APPELLANT
-AND-
HITERE COMPANY LIMITED RESPONDENT

SWORN STATEMENT IN OPPOSITION TO THE APPLICATION TO ADDUCE FURTHER

EVIDNECE ON APPEAL

I, NICOLE CHOMBO, a Legal Practitioner in the firm of Messrs MNP Associates at Law, P.O.
Box 31144, Blantyre, in the Republic of Malawi, on 8 th November 2022, make oath and state as
follows:

1. The Respondent has retained Messrs MNP Associates at Law to represent it in these
proceedings and I am duly authorised to make this statement.

2. Unless otherwise stated, the matters of fact deponed to herein are within my personal
knowledge and I verily believe the same to be true to the best of my knowledge and
belief.

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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Background
3. The Appellants were on 15th June 2020, involved in a strike over demands related to non-
remittance of pension contributions to the pension fund by the Respondent.

4. The Appellant did not give any notice to the Respondent of the impending strike, nor did
they follow any procedures laid down under the Labour Relations Act.

5. In August 2020, the Appellants filed a claim for unfair dismissal at the Industrial
Relations Court in Mzuzu. After full trial the Claim was dismissed for want of evidence.

6. The Appellants filed the present appeal against the judgment dismissing their claim in the
Industrial Relations Court.

7. The Appellants allege that they have discovered Board minutes showing that the pension
contributions had not been remitted in full by the Respondent.

Adducing further evidence

8. The Respondent acknowledges the existence of the Board minutes that shows that the
pension contributions had not been remitted in full.

9. The Board minutes had been in existence at all material times during the trial in the
Industrial Relations Court.

10. The Appellants cannot claim that the Board minutes are fresh evidence that never existed
during trial.

11. The Board minutes could have been accessed by the Appellants by making an application
to the Court for inspection of the minutes.

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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12. The Appellants did exercise reasonable diligence to obtain the Board minutes to be used
during trial in the Industrial Relations Court.

13. The Appellant has no reasonable cause to make the present application to adduce further
evidence, when the referred evidence was readily available during trial.

14. I pray to this Honourable Court that the application to adduce further evidence on appeal
should be dismissed with costs.

15. I acknowledge that if I have made a false statement in this sworn statement I may have
committed perjury and be liable to prosecution. I understand the sworn statement shall be
used in the above captioned proceeding.

SWORN at Blantyre by NICOLE CHOMBO )

of P.O. Box 31144, Blantyre, signing in my capacity)
as Legal Practitioner for the Respondent )

Before me

_____________________________
COMMISSIONER FOR OATHS

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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 REPUBLIC OF MALAWI
IN THE HIGH COURT OF MALAWI
MZUZU DISTRICT REGISTRY
IRC APPEAL NO. 41 OF 2011
BETWEEN
PIDA MPANDO ON HIS OWN BEHALF AND ON BEHALF
OF SUSPENDED EMPLOYEES OF HITERE
COMPANY LIMITED APPELLANT
-AND-
HITERE COMPANY LIMITED RESPONDENT

RESPONDENT’S SKELETON ARGUMENTS IN OPPOSITION TO THE

APPLICATION TO ADDUCE FURTHER EVIDENCE ON APPEAL

May it please your Lordship,

1.0. Background

1.1. The Appellants were on 15th June 2020, involved in a strike over demands related
to non-remittance of pension contributions to the pension fund by the Respondent.

1.2. The Appellants did not give any notice to the Respondent of the impending
strike, nor did they follow any procedures laid down under the Labour Relations Act.
1.3. In August 2020, the Appellants filed a claim for unfair dismissal at the Industrial
Relations Court in Mzuzu. After full trial the Claim was dismissed for want of evidence.

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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 1.4. The Appellants filed the present appeal against the judgment dismissing their
claim in the Industrial Relations Court.

1.5. The Appellants allege that they have discovered Board minutes showing that the
pension contributions had not been remitted in full by the Respondent.

2.0. ISSUE FOR DETERMINATION

2.1. Whether the Appellants should be allowed to adduce further evidence on Appeal

3.0. THE LAW

3.1. Parties may make an interlocutory application before the Industrial Relations Court, by way
of notice of motion to inspect documents. Rule 16 of the Industrial Relations Court
(Procedure) Rules.

3.1. Fresh evidence may be introduced if it is shown that the evidence would not have been
obtained for introduction in the trial without reasonable diligence. The Court will also consider
whether the evidence, if given, would probably have an important influence on the outcome of
the trial, and that the evidence is apparently credible. Phekani v Eros Garments Co Ltd [1992]
15 MLR 398 (HC).

3.2. It is not sufficient that reasonable diligence was exercised by the legal advisers. The
condition will not be satisfied if the party himself failed to exercise reasonable diligence. Ladd v
Marshall [1954] 3 All ER 745 at 748:

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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3.3. Fresh evidence in the nature of a document which could have been obtained by discovery
during the proceedings cannot be allowed to be given on appeal. See Turnbull v Duval [1902]
AC 429.

4.0. ARGUMENTS
4.1. The Board minutes were in existence at all material times during the trial in the Industrial
Relations Court. Therefore, they cannot be deemed to be fresh evidence to be adduced in the
Appellate Court by way of the application made by the Applicant.

4.2. The Appellant failed to exercise reasonable diligence to obtain the Board minutes at the time
of trial in the Industrial Relations Court. The board minutes could have been accessed by making
an application to the Court for inspection of the minutes.

4.3. The Appellants could also have obtained the board minutes by discovery of documents.

4.4 The evidence of board minutes that showed the non-remittance of the pension fund, could not
probably have had an important influence on the outcome of the trial. In any event the Court
could have dismissed the claim for unfair dismissal of Appellant based on the grounds of an
illegal strike.

4.3 We submit that the Appellants have failed to satisfy the conditions for an application to
adduce further evidence on appeal.

5.0. PRAYER

5.1. The Respondent prays that this Honourable Court should dismiss the application to
adduce further evidence on appeal with costs.

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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 Dated the …….………….. Day of ……………………………. 2022

____________________________________
Nicole Chombo
For: MNP ASSOCIATES AT LAW
Legal Practitioners for the Defendant

This document is prepared by MNP Associates at Law of P.O. Box 31144, Blantyre, Chayamba Building.
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