Cavendish University Zambia Limited v Buchisa Mwalongo (APPEAL NO. 238/2024) (9 June 2025) – ZambiaLII

I IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 238/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: I - CAVENDISH UNIVERSITY ZAMBIA LIMITED APPELLANT AND BUCHISA MWALONGO RESPONDENT CORAM: MCHENGA DJP, NGULUBE AND CHEMBE, JJA. On 22nd April, 2025 and gth June, 2025. For the Appellant Mr. Ndalameta -Messrs. May & Co. For the Respondent : 'VMr. Ntanda - Messrs. Reagan Blankfein Gates Legal Practitioners JUDGMENT NGULUBE, JA, delivered the Judgment of the Court. Cases referred to: 1. Ridge vs Baldwin [1964] AC 40 2. Bob Zinka vs The Attorney General (1990-1992) Z.R. 73 (S.C.) 3. Winnie Zaloumis vs Felix M4tati & 3 Others (2016) Vol. 2 Z.R. 183 4. Edward Jack Shamwana vs Patrick Mwanawasa (1993-1994) Z.R. 149 5. Mirock Investments Limited & ZCON Constrnction Limited - 2013/ HPC/ 0351 6. Mohamed A. Omar vs Zambia Airways Corporation Limited (1986) Z.R.23 7. Macarthur Mudenda vs Ericsson AB Zambia - Appeal No. 20 of 8. Augustine Tembo vs First Quantum Minerals Limited SCZ/ 8/ 94/2 015 9. Khalid Mohamed v The Attorney General (1982) Z.R. 49 10. Rajagopalan Kothanda Raman vs Ngwira - SCZ Appeal No. 163/2015 11. Twampane Mining Co-operative Society Limited vs E & M Storti Mining Limited (2011) Vol. 3 Z.R. 66. 12. Zesco Limited vs Ntalasha Mutale - CAZ Appeal No. 52 of 2024 13. Jonathan Lwimba Mwila vs World Vision Zambia - SCZ Appeal No. 193/2005 Legislation referred to: 1. The Industrial and Labour Relations Act, ~hapter 269 of the Laws ofZambi<1: 2. Rules of the Supreme Court, (White Book) 1999 Edition. Other works referred to 1. Practice Direction No. 1 of 1993· 2. Practice Direction No. 12 of 1968 -J2- 1.0 INTRODUCTION 1. 1 This is an appeal against the Ruling of the Honourable Justice M. S. Ngoma, High Court Judge- Industrial Relations Division in which she dismissed the appellant's appeal to a Judge in Chambers. 2.0 BACKGROUND TO THE DISPUTE IN THIS APPEAL 2.1 The brief background to the matter is that on 10th July 2023, the respondent was granted leave to file his complaint out of time by the Registrar of the High Court - Industrial Relations Division. On 20th September 2023, the appellant applied to the Registrar to set aside her Ruling on the basis that the application for leave to file complaint out of time was made ex parte, which denied the appellant an op.portunity to be heard. That further, the application was improperly before the Court as it was made outside the ninety (90) days stipulated by Section 85(3) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia (hereinafter referred to as "the Act"). -J3- 2.2 The honourable Registrar dismissed the application on the basis that although Section 85 of the Act allows the Court to extend time within which to file a complaint out of time, the time limit within which to make the application for leave is not stated. The Registrar also rejected the argument that the application for leave to file complaint out of time should have been heard inter-parte. 2.3 Dissatisfied with the Ruling of the Registrar, the appellant appealed to a Judge in chambers. 2.4 The appellant contended that the application should have been heard inter-parte as the respondent did not demonstrate that the application was urgent and would render the inter-parte hearing nugatory. 2.5 The appellant contended further that ~he respondent should have made the application for leave to file complaint out of time within ninety (90) days as provided for in Section 85(3) of the Act. 2.6 It was contended that leave to file complaint out of time should not have been granted as the application was devoid of merit be.cause the reason for the delay given by the respondent that -J4- he was organizing his finances, does not fall within the scope of administrative channels allowed in order to grant leave. 2.7 The respondent contended that the Registrar could not be faulted for hearing the application ex-parte because the appellant's right to be heard only arose after the complaint was filed into Court. That in any event, the appellant did not meet the requirements for setting aside an ex-parte order. 2.8 It was contended by the respondent that there is no time limit within which to make an application for leave to file complaint out of time. That after the 2008 amendment of the Act, "administrative channels" is not the only reason the Court should consider in granting an application for leave as long as there are satisfactory reasons which occurred before the period of ninety (90) days expired. He argued that financial constraints and attempting an amicable settlement were cogent reasons upon which the Court could grant leave to file complaint out of time. 3.0 DECISION OF THE LOWER COURT 3.1 After considering the arguments from both sides, the lower Court was of the view that the application for leave to file the -JS- complaint out of time was made prior to the commencement of the matter and therefore no action existed at the time which would have entitled the appellant an opportunity to be heard. The Court below found that there is no law that requires a litigant to consult or engage the other party before making an application for leave to file a complaint out of time. The lower Court held that Section 85(3) of the Act does not give any time limit within which to make an application for leave to file a complaint out of time. The lower Court also went on to find that the reasons given by the respondent in his application for leave to file complaint out of time were cogent because the respondent attempted to amicably resolve the matter as evidenced by his letter dated 30th May, 2023 which was written within the mandatory period of ninety (~O) days. 4.0 THE APPEAL 4.1 Dissatisfied with the Ruling of the Court below, the appellant launched an appeal in this court advancing the following six (6) grounds of appeal1. The Court below erred in law and in fact when it decided that it was appropriate to make a final determination -JG- affecting the appellant through an ex-parte application initiated by the respondent; 2. The Court below misdirected itself in law and in fact by shifting the evidentiary burden when it ignored the principle that an appeal to a Judge in chambers is dealt · with as if the application came before the Court for the first time and instead considered that for the appellant to succeed on its application, it had to satisfy the lower Court that the decision of the Registrar could be disturbed; 3. The Court below erred in law and in/act by determining that Section 85 of the Industrial and Labour Relations Act does not provide a 90 days' time period that barred the respondent's application for extension of time; 4. The lower Court misdirected itself in law and in fact when it extended time for the respondent to lodge a complaint, in the absence of material and reasons warranting an extension of time; 5. The lower Court misdirected itself.in law and in fact in the manner that it reckoned time and gave legal effect to a letter of demand where there were no administrative channels available to the respondent; and 6. The Court below erred in law and in fact when it recognised that there was no evidence to support the •reason given by the respondent for his delay but still -J7- went ahead and held that it was appropriate to extend time for the respondent. 5.0 THE ARGUMENTS 5.1 Both parties filed Heads of Arguments into Court. In support of ground one of the appeal, Counsel for the appellant submitted that the Court below erred when it determined that it was appropriate to hear the application for leave to file complaint out of time ex-parte. He argued that the fact that there was no action that existed did not take away the rules ofnaturaljustice. That even though the · application was made prior to the commencement of the proceedings, the decision of the Registrar led to initiation of the proceedings against the appellant. It was argued that the appellant's interests were affected even before the proceedings commenced. 5.2 In relying on the cases of Ridge vs Baldwin1 and Bob Zinka vs The Attorney General,2 it was submitted that the principles of natural justice are fundamental for fair adjudication and must be adhered to. A person who will be affected by a decision must be given an opportunity to be heard. That the appellant -J8- was therefore denied the right to be heard in accordance with the rules of natural justice. 5.3 It was submitted that the ex-parte procedure is an exception to the general rule of the right to be heard only in circumstances of urgency where notifying the other party would defeat the purpose of the application. That however, there was no urgency in the present case. In arguing that ex-parte applications should be granted with caution, reference was made to the cases of Winnie Zaloumis vs Felix Mutati & 3 Others3 and Edward Jack Shamwana vs Patrick Mwanawasa. 4 5.4 It was submitted that the Court also ignored the comprehensive scope of Practice Direction No. 1 of 1993 which does not only apply to ex-parte injunction applications but also applies to other ex-parte applications. That the bro~1.der application of this Practice Direction was explained in the High Court case of Mirock Investments Limited & ZCON Construction Limited5 where the Court discharged an ex-parte order for stay of execution because there was no inter-parte hearing. 5.5 In support of ground two, it was submitted that the Court below erred when it ignored the principle that an appeal to a Judge in -J9- chambers is dealt with as if the application came before the Court for the first time. That the Court shifted the evidentiary burden by stating that the appellant needed to satisfy the Court that the decision of the Registrar could be disturbed. Reference was made to Order 58/1/3 of the Rules of the Supreme Court and the case of Mohamed A. Omar vs Zambia Airways Corporation Limited6 where it was held that an appeal to a Judge in chambers from the decision of a Registrar is a rehearing. That by considering whether the Registrar erred, the Court below did not treat the application as a rehearing. 5.6 In support of ground three, Counsel submitted that the Court below erred when it found that Section 85 of the Industrial and Labour Relations Act did not provide a time limit of 90 days within which an application for le.ave to file a · complaint out of time could be made. Reference to the case of Macarthur Mudenda vs Ericsson AB Zambia7 where the Court discussed Section 85(3) of the Industrial and Labour Relations Act. According to Counsel, the Supreme Court expressed surprise that an application for leave to file complaint out of time could be made outside the 90 days. -JlO- 5.7 It was submitted in support of ground four that the Court below erred in granting the respondent leave to file complaint out of time as there were no cogent reasons warranting the grant of leave. Reference was made to the case of Augustine Tembo vs · First Quantum Minerals Limited8 where the Supreme Court discussed what amounts to sufficient reasons to warrant the grant of leave to file a complaint out of time. It was argued that the reason given by the respondent that he could not file his complaint within 90 days due to financial constraints falls short of the required standard. That the respondent who is himself a lawyer could have commenced proceedings in the lower Court without need for a lawyer. 5.8 It was submitted in support of ground five that the lower Court misdirected itself in the manner it reckC?ned time when it gave effect to a letter of demand where there were no administrative channels pursued. It was submitted that the Court below granted the application for leave for the reason that the respondent delayed in filing a complaint because he was making efforts to amicably resolve the matter with the appellant as seen in the demand letter dated 30th May, 2023. That this finding -Jll- was wrong because the main reason given by the respondent in his affidavit was that of financial constraints. 5. 9 It was submitted further that the respondent was given a letter for termination of employment on 21st February, 2023 and so his time started running on that date. That therefore the application for leave to file complaint out of time should have been filed by 22nd May, 2023 but was filed on 27th June, 2023. 5.10 In support of ground six, Counsel submitted that the lower Court rightly found that there was no evidence to show whether the respondent's financial difficulties existed but still granted the application for leave. That the respondent ought to have proved this allegation in accordance with the holding in the case of Khalid Mohamed v The Attorney General.9 5.11 In response to ground one of the appeal, Counsel for the respondent conceded that the principles of natural justice dictate that any party affected by a judicial decision should be heard but this principle has been misapplied in this matter. That the appellant was given an opportunity to be heard after the leave was granted. -J12- 5.12 Counsel submitted further that Practice Direction No. 1 of 1993 ought to be read together with Practice Direction No. 12 of 1968 which provides that in hearing ex-parte applications, the Judge or Registrar may direct that a summons be issued when circumstances so require. 5.13 In response to ground two, Counsel submitted that the Court below was on firm ground when it addressed its mind to the findings of the Registrar. In arguing that even though the appeal to a Judge in chambers is regarded as a rehearing, it does not preclude the Judge in chambers from considering or affirming the Registrar's ruling, Order 58/1/3 of the Rules of the Supreme Court was referred to. That therefore, the Judge properly exercised her discretion and did not shift the evidentiary burden on the appellant. 5.14 In response to ground three, the lower Court was on firm ground when it held that the application for leave to file complaint out of time was not out of time. Counsel argued that there is no requirement to lodge an application to file complaint out of time before the expiration of the mandatory period of 90 days. To buttress this argument, Counsel relied on the cases of -J13- .; Augustine Tembo vs First Quantum Minerals Limited (supra} and Rajagopalan Kothanda Raman vs Ngwira.10 5.15 It was submitted in response to ground four that in extending the time beyond the mandatory period, the Court must consider whether there should be an application to file the complaint out of time and whether the applicant has presented cogent reasons for the delay that should have existed before the expiration of the mandatory period. That therefore each case must be adjudicated upon based on its unique facts and circumstances. 5.16 It was submitted further that the Court below did not only consider the respondent's financial constraint but also considered the appellant's failure to resolve the matter amicably. 5.17 With regard to the argument that the ~espondent could have represented himself since he is a lawyer, Counsel submitted that the respondent is not an admitted legal practitioner and the fact that he is a lawyer does not negate the fact that he is entitled to legal representation. 5.18 It was argued that the reason of financial constraints given by the respondent constituted a proper basis to grant leave -J14- because the respondent had lost his employment with the appellant. 5.19 In response to ground five, Counsel submitted that the lower Court was on firm ground when it decided that time started running when the actual termination was effected and not on the date the notice was given to the respondent. He argued that the appellant's response to the respondent's letter of demand should be considered as evidence of the intention to engage in an amicable resolution. 5.20 In response to ground six, it was submitted that the lower Court was on firm ground when it ruled that the respondent had furnished sufficient grounds to make the application for leave to file complaint out of time. It was argued that the lower Court's decision was based on a comprehensiv~ assessment of all the relevant facts including the respondent's effort to resolve the matter amicably and the appellant's inadequate response. 5.21 Lastly, Counsel prayed that the appeal should be dismissed for lack of merit. 5.22 The appellant also filed heads of argument in reply which were substantially the same as the arguments filed in support of the -JlS- appeal. They shall riot be recanted for the avoidance of repetition. Save to state that Counsel submitted that the position of the law is that excuria settlements do not stop time from running and therefore it is not an excuse for failure to comply with Court rules. To buttress this argument, Counsel relied on the case of Twampane Mining Co-operative Society Limited vs E & M Storti Mining Limited.11 6.0 HEARING 6.1 At the hearing of the appeal. The parties relied on the Heads of Argument filed into Court. 7.0 DECISION 7. 1 We have carefully considered the record of appeal, the Ruling appealed against, the grounds of appeal and the parties' arguments. This appeal arises from a decision of the Registrar of the High Court, which granted the respondent leave to file a notice of complaint out of time. 7.2 The appellant contends that the Judge erred in law and fact by concluding that that there is no specific time limit for applications under Section 85(3) of the Industrial and Labour -J16- Relations Act and that the application could be heard ex-parte. The appellant also challenges the lower Court's finding that the respondent had given cogent reasons to warrant granting leave to file the complaint out of time. Further, that the lower Court's shifting of the evidentiary burden instead of treating the application as a re-hearing was an error. 7. 3 After careful consideration of the grounds of appeal and the arguments from both parties, we are not convinced that the Judge in Chamber erred in her decision. The key issue evolves around the respondent's application for leave to file complaint out of time and whether the lower Court correctly determined that the respondent had cogent reasons for the delay. 7.4 The Judge in the lower Court found that the respondent's attempt to amicably resolve the matter, as evidenced by the letter dated 30th May 2023, which was within the 90-day period, constituted a cogent reason for the delay. This was supported by the evidence and is a reasonable basis for granting leave to file complaint out of time. 7.5 In any event we find that the appellant's argument that the respondent ought to have made the application within the -J17- period 90 days is erroneous. This is because as guided by the Supreme Court of Zambia in the case of Jonathan Lwimba Mwila vs World Vision Zambia,12 applications for leave to file complaint out of time are not limited to any specified period because the Industrial Relations Division of the High Court is mandated to do substantial justice. Further that it has jurisdiction to hear such applications regardless of the delay and what was important was sufficiency of the reasons of the delay. The lower Court was therefore on firm ground in finding that the Industrial Relations Act does not provide for a time limit within which an application for leave to file complaint out of time can be lodged. Grounds 3, 4 and 6 of the appeal ther efo re fail. 7.6 Turning to ground 1 which challenges the lower Court's decision to hear the application ex-parte, we are of the considered view that the Court would not have arrived at a different conclusion even if the application had been heard inter-parte. This is because the cogent reasons for the delay as found by the Judge, justify the granting of leave, regardless of the procedural issue of the application being ex-parte. -J18- 7.7 Turning to ground 5, the appellant contended that the lower Court erred in the manner it reckoned time and gave effect to the letter of demand when there were no administrative channels available to the respondent. The respondent's letter of termination is dated 17th February, 2023. The demand letter to the appellant is dated 30th May, 2023. It is our considered view that there was no inordinate delay in making the application to file the complaint out of time. Therefore, the lower Court exercised it discretion judiciously. 7.8 With regard to ground 2 of the appeal that the lower Court shifted the evidentiary burden on the appellant, a closer look at the lower Court's Ruling reveals that the Court considered the application on its merits. The Judge evaluated the respondent's reasons for the delay ~d found them cogent, demonstrating that the Court did not merely rubber-stamp the registrar's decision. Instead, the Court exercised its discretion and made an independent assessment of the application. The appellant was therefore not prejudiced. This ground of appeal therefore also fails. -J19- 8.0 CONCLUSION 8.1 In view of the foregoing, we are of the firm view that the appeal has no nierit and it is accordingly dismissed. 8.2 Since this matter emanated from the Industrial Relations Division of the High Court, each party shall bear its own costs. DEPUTY JUDGE PRE,-,......, COURT OF APPEAL V P.C.M. NGULUBE Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J20-