Urgent
Chamber Application
BERE
J:
This
matter makes bad reading and its background can be summarised as
follows:-
After
the arbitrator had considered the submissions made by both the
applicant and the first respondent, the Arbitrator determined the
matter in favour of the first respondent and ordered the applicant to
pay the respondent a total sum of $10,060-00 (ten thousand and sixty
dollars) for having unfairly terminated the latter's employment.
This
determination was made on 17 November 2011.
The
first respondent subsequently applied for the registration of the
arbitral award in this Court to pave way for execution.
The
applicant was served with the application for registration and when
the application was considered there was no notice of opposition
filed leading to the registration of the award in question which then
became an order of this court.
On
15 December 2011 the applicant field an appeal against the decision
of the arbitrator. Simultaneously the applicant field an urgent
chamber application to stay execution pending the determination of
the appeal filed in the Labour Court.
When
the urgent chamber application was served on the first respondent she
filed her notice of opposition.
The
urgent application under HC723/12 was placed before my sister Judge,
MWAYERA J who after perusing the papers concluded the application was
not urgent. She endorsed on the file “Not urgent” and returned
the file to the Registrar's office.
The
decision by MWAYERA J was made on 25 January 2012.
Two
days after my sister Judge had declined to entertain the matter on an
urgent basis the applicant's counsel filed a notice of withdrawal
of the matter.
To
be precise, this was done on 27 January 2012.
On
the same date the same legal practitioners filed virtually the same
urgent application seeking substantially the same remedy and the
matter was placed before me under case No. HC981/12 for
consideration.
Therein
lies the problem.
When
this matter was placed before me the founding affidavit was
completely silent on the true history of this case.
When
given the first opportunity to present the applicant's case to the
Court the applicant's counsel chose to be mum about the background
of his client's case. Counsel's submissions were brief and
pretended as if this case was being presented to Court for the first
time.
The
true position of this case only came to light when the first
respondent who was acting in person presented her opposition to the
relief sought by the applicant.
It
is this total absence of candidness or deliberate act of
non-disclosure of material information by the applicant's counsel
that I wish to deal with first.
It
is the accepted position that Courts detaste or frown on those
litigants or legal practitioners who desire to derive the sympathy of
the Court by deliberately withholding vital information which has a
bearing on the very matter that the Court is called upon to
determine.
My
brother Judge, NDOU J, after considering a number of decisions from
other jurisdictions summed up the correct legal position on this
issue when he stated as follows:
“The
Courts should, in my view, discourage urgent applications, whether
exparte or not, which are characterised by material non-disclosures,
mala
fides,
or dishonesty. Depending on the circumstances of the case, the Court
may make adverse or punitive orders as a seal of disapproval of mala
fides
or dishonesty on the part of litigants. In this case, the applicant
attempted to mislead the Court by not only withholding material
information but by also making untruthful statements in the founding
affidavit. The applicant's non disclosure relates to the question
of urgency. In the circumstances, I find that the application is not
urgent and dismiss the application on that basis”.
I
would not agree more with the ratio well laid down by the learned
Judge.
I
would extend the position further and say the need to disclose
material information should in fact be extended to cover any matter
that is brought before the Court, be it on urgent basis or not.
Courts
have no capacity to reward dishonesty on the part of litigants.
In
the instant case I am extremely concerned that the applicant's
counsel deliberately chose not to disclose to the Court that his
client's case had been in and out of the same Court and that
another Judge had declined to entertain it on urgent basis.
The
legal practitioner then chose to embark on forum shopping for Judges.
This
conduct is most reprehensible and does not add value to the practice
of law.
The
issue of urgency can never be pinned on or founded upon incomplete
disclosure. My view is that a matter ceases to be urgent if it is
founded upon deliberate misrepresentation or the holding back of
vital information.
The
accepted procedure is that if one is not satisfied by the position
taken by a particular Judge before he has been afforded an
opportunity to address the court, such a lawyer must seek audience
with the Judge concerned and ask to be given a chance to be heard
after which he can ask for the reasons for the position taken before
considering other options open to him including but not limited to
appealing against the decision.
Forum
shopping for other Judges does not fit into the equation.
The
point must be emphasized that legal practitioners are officers of the
Court. They have a concomitant duty to both the Court and to their
clients.
The
level of dishonesty exhibited in this case is frighteningly high and
I feel more inclined to dismiss this application without even
bothering to consider the matter on merits.
Accordingly
the application is dismissed with costs.
V.
Nyemba & Associates,
plaintiff's legal practitioners
First
respondent in person
