Roland Imperial Tobacco Comapny Lts v Maureen Kapesha and 12 Ors (Appeal No. 232/2024) (5 June 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 232/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ROLAND IMPERIAL TOBACCO COMPANY LTD APPELLANT AND MAUREEN KAPESHA & 12 OTHERS RESPONDENTS Coram: Kondolo SC, Majula and Muzenga, JJA On 25th April, 2025 and 5th June, 2025 For the Appellant: Mr. C. Chungu of Messrs Nsapato & Co Advocates For the Respondents: Ms. C. Siachika of Messrs Japhet Zulu Advocates JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Akashambatwa Mbikusita Lewanika and Others v. Fredrick Jacob Ti.tus Chiluba - SCZ Appeal No. 14 of 1998 2. Ellington Diwell Chongesha v. Securicor Zambia Limited - SCZ Judgment No. 27/2014 3. Walusiku Lisulo v. Patricia Anne Lisulo (1998) ZR 75 4. Saban & Another v. Gordie Milan (2008) ZR 233 5. Ellington Diwell Chongesha v. Secun·cor Zambia Limited - SCZ JudgmentNo.27/2014 J2 6. Parkrite Zambia Limited v. Lusaka City Council - CAZ Appeal No. 234/2023 7. Thelma Maunga (Suing in her capacity as Administrator of the Estate of the late Suzyo Nyika) v The Anti-Corruption Commission and The Attorney-General - SCZ Appeal No. 5 of 2024 8. Jamas Milling Company vs Imex International & Zamtel (2002) ZR 79· 9. Zamtel vs Mulwanda (2012) ZR, Vol 1, 404 10 Bank of Zambia (As Liquidator of Credit Africa Bank Limited in Liquidation) vs Al Shams Building Materials Trading Company Limited - SCZ Appeal 16 of 201 7 11 San He Manufacturing Limited vs Lunsemfwa Hydropower Company Limited CAZ/ 8/ 003/ 2023 12 Rajagopalan Kothanda Raman v. Jenala Ngwira - SCZ Appeal No. 163/2015 13 Ecobank Zambia Limited v. National Association of Savings and Credit Union - 2022/H PC/ 0519 14 Horizon Properties Zambia Limited & Another v. Jaguar Overseas Limited 2016/HP/ARB/ 13 15 Vangelatos and Vangelatos v. Metro Investments Limited & Others SCZ Appeal No. 35 of 2016 16 Zambia Consolidated Copper Mines v. Jackson Munyika Siame & 33 Others (2004) ZR 193 (SC) 17 Owner of the Motor Vessel "Lillian S)) v. Caltex Oil (Kenya) Ltd (1989) eKLR Legislation referred to 1. High Court Rules, Chapter 27 of the Laws of Zambia 2. Section 85(3) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 1.0 Introduction 1. 1 This appeal arises from the ruling of the Industrial Relations J3 Division of the High Court delivered on 17th June 2024, wherein the trial court declined to review its earlier decision refusing to dismiss the Respondents' complaint. 2.0 Background 2.1 The Respondents, whose employment was terminated on operational grounds on 1st January, 2020, filed a complaint without formal leave of court on 14th December, 2020, during court vacation and prior to the perfection of a written order granting leave on 21st December, 2020. The Appellants argued that the complaint was irregularly filed and thus void ab initio, raising questions about the sufficiency of grounds for review and whether the court had jurisdiction to entertain the matter. 3.0 Decision of the Lower Court 3.1 In its extempore ruling, the lower court confirmed it was fully acquainted with its earlier ruling of 17th June, 2024 and the legal rules for reviewing its own decisions. After considering the merits of the application in the context of the entire record, the court found no sufficient basis to justify a review and accordingly refused the application. 4.0 Grounds of Appeal 4.1 The Appellant was dissatisfied with the Order of the Court below and hence the appeal before us, based on the following grounds: J4 "1. The Court be low erred in law and in fact when it refused to review its decision of 17th June, 2024 and not dismiss the Respondent's cause of action. 2. The court below erred in law and infact when it/ailed to hold that the court had no jurisdiction to hear the matter in the court bel ow." 5.0 Appellant's Arguments - ground 1 5.1 In their submissions, Counsel for the Appellant asserts that the court below erred both in law and fact by refusing to review its decision of 17 June, 2024, despite having sufficient cause to do so. They anchor their argument on Order 39 Rule 1 of the High Court Rules, which empowers the court to reopen and rehear a matter when sufficient grounds exist. 5.2 Relying on the Supreme Court decision in Akashambatwa Mbikusita Lewanika and Others v. Fredrick Jacob Titus Chiluba, 1 counsel emphasizes that review is a two-stage process. First, the applicant must establish a "ground or grounds considered to be sufficient." Once that requirement is satisfied, the court may then proceed to actually review the decision. The Appellants maintain that in this instance, the discovered error, namely that the Respondents obtained leave on 21st December, 2020, not 1st December, 2020, constitutes sufficient cause to revisit the earlier ruling. 5.3 They further cite Ellington Diwell Chongesha v. Securicor Zambia Limited2 in which the Supreme Court affirmed the J5 Industrial Relations Court's power to review its own decisions. By invoking these authorities, the Appellants contend that the lower court should have corrected its mistaken assumption . about the date on which the Respondents were granted leave, as that error led to the improper filing of the Notice of Complaint. Consequently, they argue the decision below ought to have been reviewed and ultimately set aside. 6.0 Respondent's Arguments - Ground 1 6.1 The Respondents oppose the appeal on grounds that the lower court correctly exercised its discretion in refusing to review an earlier decision and that the court indeed possessed the requisite jurisdiction to hear the matter. Discretion to Review 6,2 The Respondents emphasize that Order 39 Rule 1 of the High Court Rules grants a judge discretionary power to review a prior ruling "upon such grounds as he shall consider sufficient." In their view, the lower court properly exercised that discretion in concluding that there were no sufficient grounds to warrant a review. 6.3 The Respondents rely on the decisions in Walusiku Lisulo v. Patricia Anne Lisu lo3 and Sabin & Another v. Gordie Milan4 These cases establish that the power to review is not • intended to give a party a "second bite" at the same litigation and that litigation must come to an end to allow the prevailing party to enjoy the fruits of a judgment. J6 Insufficiency of Grounds for Review 6.4 The Respondents argue that the Appellant did not put forward any new or compelling reasons justifying a review of the ruling that had granted the Respondents leave to file a notice of complaint out of time. Since the lower court found no sufficient basis to disturb its earlier decision, it acted properly in refusing to review that decision. REPLY 6.5 The Appellant's advocates argue that the lower court erred in law and fact by refusing to review its decision of 17th June, 2024 and by failing to dismiss the Respondents' cause of action, submitting that the Respondents filed their Notice of Complaint without first obtaining the necessary leave, rendering it invalid. They assert that the Industrial Relations Division has jurisdiction to review its own decisions, citing Ellington Diwell Chongesha v. Securicor Zambia Limited,2 and emphasize, relying on Saban and Another v. Gordie Milan4 that review requires "sufficient grounds." , Referring to Akashambatwa Mbikusita Lewanika and Others v. Frederick Jacob Titus Chiluba1 they highlight , that review under Order 39 entails a two-stage process: establishing sufficient grounds and correcting errors rather than reopening cases out of dissatisfaction. 6.6 They argue that sufficient grounds exist because the lower court erroneously found that leave had been granted on 1st December, 2020, whereas the record shows leave was only granted on 21st December, 2020, meaning the Complaint filed J7 th on 14 December, 2020 was unauthorised. Citing Parkrite Zambia Limited v. Lusaka City Council6 they contend , that the discovery of the true leave date constitutes new evidence, and that the court's misstatement amounts to a clerical mistake, both valid grounds for review. They therefore pray that Ground One of the appeal be upheld. 7 .0 Hearing of the Appeal 7 .1 At the hearing of the appeal on 24th April, 2025, both parties placed reliance on the documents filed. By way of emphasis, Mr. Chungu submitted that the Respondents made an application for leave to file their Notice of Complaint out of st time, which was scheduled for hearing on 1 December, 2020. Although the order granting leave was eventually issued on 21st December, 2020, he pointed out that the Respondents had on 14th December, 2020, prior to the grant of such leave, already filed their Notice of Complaint outside the mandatory 90-day period prescribed by law. Mr. Chungu argued that this premature filing, without prior leave of the court, rendered the originating process null and void, contrary to the mandatory requirement under section 85(3) of the Industrial and Labour Relations Act. 7.2 He further contended that the Judgment delivered by the th court below on 6 March, 2025 was itself a nullity, as the court lacked jurisdiction to entertain proceedings founded on a defective originating process. In support of this proposition, Mr. Chungu relied on the Supreme Court decision in Thelma Maung a (Suing in her capacity as Administrator of the Estate of J8 the late Suzyo Nyika) v The Anti-Corruption Commission and The Attorney-General, 7 where the apex court set aside a High Court judgment on grounds of lack of jurisdiction. 7 .3 In conclusion, Mr. Chungu asserted that, for these reasons, the appeal must succeed. He maintained that since the Respondents had filed their Notice of Complaint without the requisite leave, the proceedings were fundamentally flawed, and the Judgment of the lower court ought to be set aside. 7.4 The reaction by Ms. Siachika was that the matter in the court below has since been concluded and judgment was issued on 6th March, 2025. That in any case, the Appellant had proceeded to file a notice of appeal. 7. 5 In reply, Mr. Chungu argued that determining the matter would not amount to an academic exercise despite judgment having already been issued, as the appeal raised the critical issue of whether the lower court had jurisdiction. He submitted that if the court found in favour of the Appellant, that is, that the lower court lacked jurisdiction, the judgment would be rendered a nullity. Thus, he maintained that the issue of jurisdiction was substantive and warranted the Court's consideration. 8.0 Our Analysis 8.1 We have ruminated on the rival arguments by the parties. The issue brought for consideration is whether the Court should have acceded to the request to review its decision of 17th June 2024. To answer this question, we firstly turn to J9 the provisions of Order 39 Rule 1 of the High Court Rules, which is cardinal in empowering the Court to re-open and rehear a matter where there is sufficient cause to do so. For ease of reference, it provides as follows: "Any Judge may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, and such appeal is not withdrawn), and, upon such review, it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous judgment or decision." 8.2 The case of Jamas Milling Company vs Imex International & Zamtel8 clarified the import of Order 39 where the Supreme Court held as follows: "Review under Order 39 Rule 2 is only available where the applicant has discoveredfresh material evidence that could not with reasonable diligence have been produced at trial, and which would materially affect the outcome. In that case, the Defendant failed to meet this threshold, as the evidence relied upon (the Defence and Counter Claim) was already before the court." 8.3 In Zamtel vs Mulwanda9 upon careful consideration of the appeal, the Court held that the learned trial judge fell into error in law when she proceeded to review her judgment JlO delivered on 5th June 2008 by adding a relief, namely, an award of terminal benefits, which had not been granted in the original decision. The Court emphasized that such an amendment amounted to the addition of a substantive relief and was impermissible in the absence of newly discovered evidence or a clear basis under the narrow grounds for review as prescribed by Order 39, Rule 1 of the High Court Rules. The omission to determine the pleaded terminal benefits constituted an error of fact which could only be corrected by way of an appeal, not through review. The Court further observed that no proper application for review had been filed; rather, what was before the trial court was merely an application for interpretation of the judgment, which had been dismissed. In light of the foregoing, the appellate court concluded that the trial judge misdirected herself in purporting to review and vary her own judgment, and accordingly, the appeal was allowed. 8.4 It is crystal clear from the foregoing that that the parameters have been set on the application of Order 39. It can only be resorted to where fresh evidence has been obtained and where such evidence could not have been obtained with due diligence during the course of the trial. 8. 5 Turning to the facts of this case, the record reveals the following timelines: 1. 16th of October, 2020, the Respondents filed a summons for leave to file a notice of complaint out of time returnable Jl 1 on 1st December, 2020 (page 26 ROA). 2. 14th of December, 2020, the Respondents filed a notice of complaint. 3. 21st December, 2020, there was an Order granting leave to file a complaint within 14 days by the Registrar (Joshua Banda) (page 29 ROA). 4. On 17th June 2024, ex tempore Ruling declining application to dismiss action by Honourable Justice E.L. Musona. 8.6 The trial Court is being criticized for the Judge's exercise of discretion in refusing to review the matter on what would best be described as the Appellant's assertion that the leave to file the complaint was granted retrospectively, as the Order was on the 21st of December 2020 and the Respondents had filed their complaint on 14th of December 2020. 8.7 We have painstakingly examined the record and note that indeed a formal Order was signed/issued on the 21st of December, 2020. There is no dispute that the parties were heard on the 1st of December, 2020. It has been argued that on that date, there was an oral Order given. We are inclined to agree with this position as it ties in with what Counsel for the Applicant indicated on 16th July, 2024 (page 40 ROA), where the Appellant's Counsel stated: "In casu, the Order granting leave was perfected on 21/ 12/ 2020 but the complaint was filed on 14/ 12/ 20. This means that the complainant had no leave to file J12 when he filed." 8.8 Furthermore, at pages 9 and 10 of ROA, there is an ex tempore Ruling by Justice E.L. Musona wherein he stated as follows: "I have heard both parties. I have seen what is on record. 1. Leave to file the complaint out of time was granted. 2. On 1st December, 2020, the Court allowed the Complainant to file their Complaint." 8. 9 From where we stand, this confirms that leave to file a complaint out of time was granted on 1st of December 2020 but perfected on 21st of December, 2020. The question, given these circumstances, that confronts us is at what point does the leave start to run. Is it when the Court pronounces the Order, or is it when the Order is perfected? 8.10 We are fortified in stating that time starts to run when a judgment or ruling has been pronounced by the case of Bank of Zambia (As Liquidator of Credit Africa Bank Limited in Liquidation) vs Al Shams Building Materials Trading Company Limited,9 where the Apex Court stated as follows: "The Court has similarly held that a judgment takes effect from the date of its delivery. The Court having pronounced on the date a judgement takes effect, the argument that it only becomes effective upon reduction into an Order cannot prevail. It is as well notable that J13 although rule 75 Supreme Court Rules stipulates in imperative terms that every judgement is to be embodied in an Order, it does not invalidate a judgement until this is done. Additionally, Section 9 of the Supreme Court Act speaks of execution of a judgement of the Court, and not execution of an Order of the Court." 8. 11 We too had occasion to anchor our decision on the above precedent in the case of San He Manufacturing Limited vs Lunsemfwa Hydropower Company Limited,1 1 where we opined that: "It is clear from the above authority that a judgment takes effect from the date of its delivery and its embodiment cannot stop time from running. It is therefore our considered view that in the present case, the embodiment of the judgment and correction of clerical errors did not stop time from running." 8.12 In light of the foregoing, we are sure-footed to state that the oral Order for leave having been granted on 1st of December, 2020 meant that the time had started to run. The subsequent perfection of this Order on 21st of December did not stop the time from running and it cannot be said that they filed the complaint prior to obtaining the Order. The Court had satisfied itself that there was in existence an Order. 8.13 Although we agree with, and are bound by, the decision of the Supreme Court in Thelma Maunga (Suing in her capacity Jl4 as Administrator of the Estate of the late Suzyo Nyika) v The Anti-Corruption Commission and The Attorney General, 7 which restated the entrenched principle of law that "out of nothing comes nothing" and that a court's decision can be entirely set aside for lack of jurisdiction, the present case is distinguishable. In this matter, leave to file the complaint was granted on 1st December, 2020, although the formal perfection of the order only occurred on 21st December, 2020. 8.14 We therefore see no basis upon which we can fault the Court below for its refusal to review its decision, as it did not meet the threshold under Order 39 which is that fresh material evidence ought to have been obtained which could not with reasonable diligence have been produced at trial. We accordingly find no merit in ground 1 and dismiss it. 9.0 Appellant's Arguments - Ground 2 9 .1 Mr. Chungu, on behalf of the Appellant, has argued that the lower court lacked jurisdiction to hear the matter, primarily because the Respondents filed their Notice of Complaint late and without first seeking leave of the court, contravening Section 85(3) of the Industrial and Labour Relations Act. He underscores that the law imposes a strict ninety-day limitation period to bring a complaint, which can only be extended by express permission of the court. Relying on Rajagopalan Kothanda Raman v. Jena la Ngwira, 12 he asserts that once the time prescribed by statute has expired, and no leave has been obtained for a late filing, the court's J15 hands are tied and cannot proceed. 9.2 Mr. Chungu further has further drawn support from the learned authors Mwenda and Chungu, A Comprehensive Guide to Employment Law in Zambia, who emphasize that Section 85(3) does not grant the Industrial Relations Division discretion to proceed where the complaint was filed out of time, unless an application to extend is lodged within the mandatory ninety-day period. 9.3 Additionally, the Appellant's advocates argue that the filing itself was improper because it occurred during the court's vacation period. They invoke Order II Rule 4 of the High Court Rules, which bars the filing of originating processes during vacation unless leave is granted. They cite Ecobank Zambia Limited v. National Association of Savings and Credit Union,13 and Horizon Properties Zambia Limited & Another v. Jaguar Overseas Limited14 both of which , confirm that a court has no jurisdiction to hear a matter commenced without permission during vacation. 9.4 Finally, they rely on Vangelatos and Vangelatos v. Metro Investments Limited & Others, 15 stressing that a court's decision rendered without proper jurisdiction is invalid and amounts to nothing. Hence, having established that the Respondents commenced their case without leave of the court, both in terms of the statutory time limit and the vacation-period restriction, the Appellant's advocates insist that the trial court erred by refusing to dismiss the action for J16 want of jurisdiction. Respondents' Position on Ground Two Jurisdiction of the Industrial Relations Court 9.5 Ms. Siachika, on behalf of the Respondents, point to Section 85(3) of the Industrial and Labour Relations Act, which sets out the timelines for filing a complaint but also allows the court, upon application, to extend the period in which a complaint may be presented. Properly Obtained Leave to File Out of Time 9. 6 According to the Respondents, they applied for, and were orally granted, leave to file their notice of complaint out of time on 1st December, 2020, before formally lodging that notice of complaint on 14th December, 2020. A subsequent written Order dated 21st December, 2020 further confirmed that the court granted leave and, in fact, noted that the Respondents may not even have needed such leave in light of Constitutional amendments. Substantial Justice Over Procedural Technicalities 9.7 They cite Zambia Consolidated Copper Mines v. Jackson Munyika Siame & 33 Others,16 where the Supreme Court held that the Industrial Relations Court has a mandate to administer substantial justice "unencumbered by rules of procedure." The Respondents maintain that it would be unfair to dismiss their claim when the court has already found that it could properly hear their complaint. J17 Costs and Frivolous Applications 9.8 Because the Respondents believe the Appellant's jurisdictional objection is one in a series of attempts to avoid liability, they seek costs under Rule 44( 1) of the Industrial and Labour Relations Rules, which empowers the court to award costs against a party who has taken vexatious or unnecessary steps in litigation. 9. 9 The Respondents conclude by urging the appellate court to dismiss both grounds of appeal and to award them costs, arguing that the Appellant's applications and arguments are without merit and have unnecessarily delayed the final resolution of the dispute. REPLY 9.10 In their reply on ground two, the Appellant's advocates argue that under Section 85(3) of the Industrial and Labour Relations Act, a complaint must be filed within 90 days or, if filed later, with leave of the court; while the Respondents claimed to have been granted oral leave on 1st December, 2020, the Appellant contends that the record contains no evidence of such leave, with the only written order dated 21st December, 2020. 9 .11 They emphasize that jurisdiction is foundational, citing Owner of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya)17 where it was held that: , "Jurisdiction is everything; without it, a court has no Jl8 power to make one more step." 9.12 Relying further on Vangelatos and Vangelatos v. Metro Investments Ltd and Others1s, they underscore that: ". .. where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. .. " 9.13 Consequently, they argue that the trial court had no jurisdiction at the time the Complaint was filed and ought to have set it aside. They submit that the lower court's refusal to review its ruling of 17th June, 2024, despite this procedural defect, was a legal error, and they pray that ground two be upheld and the appeal allowed. 10.0 Our Analysis 10.1 In light of our finding under ground one that the Complaint was properly filed following the grant of leave on 1st December, 2020, we find the argument that the court lacked jurisdiction to be without merit. The argument in ground 2 being that the complaint was filed without leave during the vacation. While it is acknowledged that the complaint was filed during the court's vacation, it is important to note that the Industrial and Labour Division of the High Court is a forum guided by the principles of substantial justice. Given the nature of disputes brought before it, often involving the livelihood and rights of workers, the court retains the J19 discretion to grant leave where circumstances warrant. In this case, it was well within the court's purview to entertain the matter and grant leave, ensuring that justice is not denied merely on procedural grounds. In any case, there was an Order granting the Respondents 14 days in which to file the notice of complaint dated the 1st December, 2020. The 14 days period fell within the vacation. Therefore, the leave granted by the lower court was sufficient authority for filing the complaint during the vacation period. 11.0 Conclusion 11.1 In summary, we find that both grounds of appeal lack merit and are dismissed for the following reasons: 1. There was insufficient cause for the Court to review its decision of 17th June, 2024. 2. The Court was possessed with the requisite jurisdiction to hear the matter as the complaint had been properly filed with leave of the court having been granted on 1st of December, 2020, which was subsequently perfected on 21st of December, 2020. 3. Although the complaint was filed during the court's vacation, the Industrial and Labour Division of the High Court is guided by the principles of substantial justice and retains the discretion to grant leave where warranted. Further, the leave granted by the lower court to file a complaint during the vacation period was sufficient authority. J20 11.2 Each party is to bear their costs. ~ ~ .......... ..................... . M.M. Kondolo, SC COURT OF APPEAL JUDGE ...........! ~.. .......... . ····~ ········· ;~·. .. .. ....... . ~~i~ K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL