Musyani Siwale and Ors v Finance Bank Zambia Limited and Anor (Appeal No. 380/2023) (26 February 2025) – ZambiaLII

I I IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 380/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN ..... / ~ MUSYANI SIWALE / APPELLANT RACHEAL MWEWA KAPAPULA / PPELLANT JUSTINA CHENGE PPELLANT GERTRUDE MUSABULA MUGALA ELLANT SEPO MASWENYEHO MAKANI ELLANT AND FINANCE BANK ZAMBIA LIMITED 1 sr RESPONDENT AFRICAN BANKING CORPORATION 2ND RESPONDENT ZAMBIA LIMITED CORAM: Kondolo SC, Majula and Muzenga JJA on 20th February, 2025 and 26th February, 2025 For the Appellants : Mr. C. Chungu, Messrs Nsapato & Co. Advocates For the Respondents: Mr. M. Nchito, SC, Mrs. N. Simachela & Mr. C. Hamwela, Messrs Nchito & Nchito JUDGMENT Muzenga, JA, delivered the Judgment of the Court. Cases referred to: 1. Celtic Freight Zambia Limited v Kashy International Limited CAZ Appeal No.87 /2000 2. Zambia Revenue Authority v Jayesh Shah Judgment No.10 of 2001. -J23. Mwambazi v Morester Farms Limited (1977) Z.R.108. 4. Zambia Seed Company Limited v West Co-Op Haulage and Western Province Cooperative Union Limited SCZ Appeal No. 112/2013. 5. Re: Sentor Motors Limited v 3 Others Companies (19951997) ZR 163. 6. New Plast Industries v The Commissioner of Lands and the Attorney General Judgment No. 8 of 2001. 7. Fanwell Kabulwebulwe and Others v Zambia Pork Products and Others SCZ Appeal No. 30 of 2014. 8. Zambian National Commercial Bank Pie v Jason Mweemba SCZ Appeal No. 92 of 2015. 9. Augustine Tembo v First Quantum Minerals Limited-Mining Division (Appeal No. 124 of 2015). 10. Zambia Consolidated Copper Mines Limited v Joseph David Chileshe (SCZ Judgment No. 21 of 2002). 11. Godfrey Miyanda v The High Court (1984) ZR 62. 12. Morgan Naik v Simon David Burgess and Others Appeal No. 45 of 2020. 13. Indo Zambia Bank v Banda Appeal No. 178/ 2014. 14. Ellington Diwell Chongesha v. Securicor Zambia Limited SCJ Judgment No. 27 of 2014. 15. Citibank Zambia Limited v Suhayl Dudhia Appeal No.6 of 2022. Legislation referred to: 1. Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. Other works referred to: 1. Patrick Matibini, Zambian Civil Procedure: Commentary and Cases, Vol.1 (2017) Lexis Nexis. -J31.0. INTRODUCTION 1.1. This appeal is against a decision of the learned High Court Judge E.L. Musona in the Industrial Relations Division, in which he found that the appellants' claims were statute barred by operation of The Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia (as amended by Act No.8 of 2008), and dismissed the action in its entirety. 2.0. BACKGROUND 2.1. The background to this matter is that being out of time, the appellants were granted leave to commence this action by notice of complaint and affidavit in support, against the ist respondent in the High Court Industrial Relations Division on 26th March, 2018, alleging that they were declared redundant. They sought inter alia the following reliefs: i) An order that the complainants be paid the balance of their redundancy benefits amounting to ZMW582,884.41 computed in accordance with the Minimum Wages and Conditions of Employment (General) Order, 2011 as read with the Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2012. ii) An order that the complainants be paid the sum of ZMW63, 315. 71, being the refund for the unlawful tax deductions effected on the complainants benefits by the respondent. -J4iii) An order for the payment of the salaries to the complainants, who were in permanent and pensionable employment for the period April and May, 2017 amounting to ZMW25,856.38; iv) An order for the payment of the amount of money due to the complainants on their salaries, after taking into account the customary 2017 upward salary adjustments; v) An order for the payment of the fixed-term contract complainant of damages breach of contract; vi) An order that the complainants be paid their salaries from the date of their redundancy to the date when their redundancy benefits are settled in full, in accordance with Article 189(2) of the Constitution of Zambia (Amendment) Act, 2016. vii) Costs of this complaint; and viii) Further or other relief as the court shall deem fit. 2.2. The respondent in its answer denied the appellants' claims contending that the redundancy benefits and all terminal dues were paid to them in full in line with their contracts of employment. 2.3. The appellants later on 14th September 2023, sought an order to amend the notice of complaint and its attendant affidavit, which application the -JScourt granted. The appellants also joined the 2nd respondent to the proceedings. 2.4. On 20th September 2023, the appellants filed into court the amended notice of complaint and affidavit alleging that as a result of the restructuring and merger of the 1st and 2nd respondent, they were subjected to interviews for roles in the merged entity and to their surprise, were terminated by redundancy without consultations or opportunity to be heard on the redundancy or alternative suitable employment. The appellants reliefs were now couched as follows: i) A declaration that the respondent's termination of the complainants' contract of employment was unlawful, unfair and wrongful; ii) Forty-two ( 42) months' salary as damages for the wrongful, unfair and unlawful termination and unfair discrimination, with respect to all the complainants; iii) An order that the 1st and 2nd respondent's pay the complainants the balance of one (1) months' salary for each year served, taking into consideration the 2017 salary increment; iv) An order for the underpayment of the complainant's salaries from January to May, 2017; v) Interest; -JGvi) Costs of and incidental to this action; and vii) Any other relief that the court may deem fit. 2.5. On 17th October 2023, the respondents filed into court ex-parte summons for an order to strike out the complainant's amended notice of complaint and affidavit in support for irregularity. The gist of the respondents' application was that the appellants were declared redundant on various dates between 21st March 2017 and 12th May 2017 and they commenced the action by way of notice of complaint on 26th March 2018. That four years after commencement of this action, the appellants obtained an order to amend the notice of complaint, which complaint introduced new claims for unlawful, unfair and wrongful termination which were never raised before. The respondents' contention was that the notice of complaint and affidavit was irregular and ought to be disallowed on the ground that it was filed and made outside the 90 days within which a claim should be brought in accordance with the Industrial and Labour Relations Act. 2.6. The appellants in responding, avowed that their application filed on 26th March 2018 was within time and the provisions of Section 85(3) of the Industrial and Labour Relations Act did not apply and that the said provision gave the court discretion to extend the period within which a complaint was filed so that a matter is heard on its merits. That -J7the court therefore properly exercised its jurisdiction to grant the application to amend. 3.0. DECISION OF THE COURT BELOW 3.1. After analysing the arguments advanced by the parties, the learned judge reasoned that the new claims for unlawful, unfair and wrongful dismissal were resurrected almost five years from the date the complainants left employment, and were consequently statute barred by operation of the Industrial and Labour Relations Act. He dismissed the action in its entirety. 4.0. GROUNDS OF APPEAL 4.1. Dissatisfied with the decision of the court below, the appellants appeal to this court on the following grounds: 1) The court below erred in law and in fact when it dismissed the entire matter and held that it was statute barred despite the fact that the appellants already had a claim before the court that was brought within time and made a bona fide application to amend their notice of complaint and affidavit in support of the complaint. 2) The court below erred in law and in fact when it dismissed the entire matter despite granting leave to the appellants to amend their notice of complaint and affidavit in support of complaint which were properly filed in time, before the court below. -J83) The court below erred in law and in fact when it dismissed the matter despite the same not being sought nor prayed for the respondent and the same not being in the interest of justice. 4) The court below erred in law and in fact when it dismissed the matter without giving the appellants an opportunity to be heard. 5) The court below erred in law and in fact when it failed, at the very least, permit the matter to proceed on the notice of complaint and affidavit in support of notice of complaint that were already on record. 5.0. APPELLANTS' ARGUMENTS 5.1. In support of ground one, the appellants referred the court to Section 85(3) of the Industrial and Labour Relations Act which provides that: "The court shall not consider a complaint or an application unless the complainant or applicant present the complaint or application to the courta) Within ninety days of exhausting the administrative channels available to the complainant or applicant; or, b) Where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application Provided that- -J9i) Upon application by the applicant, the court may extend the period in which the complaint or application may be presented before it." 5.2. It was submitted that the above provision permits the court to extend time within which to file the notice of complaint, which was granted and that they were therefore within the provisions of Section 85(3) of the Industrial and Labour Relations Act. That because the court below had the jurisdiction to hear and determine the appellants' action against the respondents, the appellants had the discretion to apply for amendment of the process. 5.3. Reference was also made to the case of Celtic Freight Zambia Limited v. Kashy International Limited1 where we guided that: "The general rule on amendment of pleadings is that they can be sought at any stage before or during trial, they can be made without injustice to the other side ... " 5.4. It was therefore submitted that the respondents were given ample time of twenty-one days within which to respond to the amended claims and as such they did not suffer any injustice. That it was therefore erroneous for the court below to dismiss the entire action based on amendments the court permitted, notwithstanding the fact that pleadings can be amended any time before trial to ensure that the real issues in -JlOcontroversy are heard and determined as espoused in the Celtic Freight Zambia Limited case supra. 5.5. It was further contended that matters should be heard on their merits as illustrated in Zambia Revenue Authority v Jayesh Shah2 and Mwambazi v. Morester Farms Limited3 . 5.6. We were urged to set aside the ruling of the court below and remit the matter back to the Industrial Relations Division before a different judge for the respondents to file their amended answer and supporting affidavit and thereafter trial. 5.7. In support of ground two, it was argued that a party should be at liberty to amend its court process in the Industrial Relations Division provided it filed the court process within 90 days or with leave of the court. Counsel submitted that the Industrial and Labour Relations Rules do not provide a time frame for making amendments. That for this reason, amendments can be made at any stage provided the party has filed the process within the limitation period and is acting in good faith and no prejudice is occasioned to the other party. It was thus contended that the reasoning taken by the court below that amendments cannot be made after 90 days should not be condoned. 5.8. It was further submitted that in terms of Section SSA of the Industrial and Labour Relations Act, the court has the jurisdiction and power to grant a remedy or remedies which are justified and -Jllreasonable, as may be necessary for the ends of justice. Reliance was placed on a plethora of authorities for this position including the case of Zambia Seed Company Limited v. West Co-Op Haulage and Western Province Cooperative Union Limited4 • 5.9. We were urged to uphold this ground of appeal. 5.10. In relation to ground three, it was submitted that the respondents' application to set aside the amended notice of complaint and affidavit appearing at pages 128 to 137 of the Record of Appeal clearly showed that they merely sought to set it aside and not dismiss the matter. It was the appellants' position that the role of the court is to hear and determine matters that have been brought before it. Reliance was placed on the case of Re: Sentor Motors Limited v. 3 Others Companies5 where it was held that: "It is a primary function of the court to adjudicate disputes which have been submitted for determination ... The duty to adjudicate and to do so with some finality and in a timely fashion is reflected in the language of the various statutory provisions dealing with the function of the courts." 5.11. It was argued that it was a misdirection for the court below to dismiss the matter when it was not submitted for determination. -J125.12. We were urged to uphold ground three and set aside the decision of the court below dismissing the matter and remit the matter back to the Industrial Relations Division before a different judge for trial. 5.13. It was argued in support of ground four that as could be gleaned from the ruling of the trial court at pages 13 to 14 of the record of appeal and the transcript of proceedings appearing on pages 147 to 149, the court made the decision instantly without giving the appellants any opportunity to be heard on the issue of dismissing the action. 5.14. To support the argument that a party may be heard either orally or in writing, reliance was placed on the case of New Plast Industries v. The Commissioner of Lands and the Attorney General6 that: "The content of what amounts to the hearing of the parties in any proceedings can take either the form of oral or written evidence. Where the evidence in support of the application is by way of affidavit, the deponent cannot be heard to say that he was denied the right of a hearing simply because he had not adduced oral evidence." 5.15. It was submitted that it was highly irregular for the court below to dismiss the entire action without giving the appellants any opportunity to be heard as this amounted to non-adjudication of the issue before him. We were referred to the case of Fanwell Kabulwebulwe and Others v. Zambia Pork Products and Others7 and a number of -J13other authorities on the opportunity to be heard which we will not replicate. 5.16. We were urged to allow this ground. 5.17. In relation to ground five, it was contended that the appellants had a valid claim before the court and even in the unlikely case that the appellants were not permitted to amend their notice of complaint and affidavit in support, the court should have heard and determined the matter on the basis of the original notice of complaint and affidavit filed on 26th March 2018. 5.18. It was argued that it was a misdirection on the part of the court below to dismiss the entire action when there was a valid notice of complaint and affidavit in support of the complaint which was filed before the amendment. That even in the event that amendments could not be made, the court should have proceeded to hear and determine the matter as guided by the Supreme Court in Zambia National Commercial Bank Pie v. Jason Mweemba8 that: "Further, the fact that the respondent did not plead payment of his pension dues did not prevent the Industrial Relations Court from determining whether or not he had been paid according to the appellant's Pension Scheme Rules. As correctly argued by Mr. Mwitumwa, flawed pleadings cannot stand in the way of the Industrial Relations Court in its exercise of the powers under Rule 55 of the Industrial and Labour Relations Act." -J145.19. All in all, we were urged to allow the appeal so as to enable the disputes between the parties to be heard on their substance and merit or at the very least, on the notice of complaint and affidavit filed with leave of court on 26th March 2018. 6.0. RESPONDENTS' ARGUMENTS 6.1. In response to ground one, the respondents submitted that the claims raised in the amended notice of complaint and affidavit were statute barred and rightly dismissed and that consequently, the appellants' application to amend their pleadings was not, in fact, a bona fide application. That in any event, the fact that the appellants had a claim before the court prior to the amended pleadings has no bearing, because that prior claim was entirely abandoned as the amended pleadings contained entirely new claims. 6.2. It was submitted that while Section 85(3) of the Industrial and Labour Relations Act gives the court the right to extend time within which a claim is brought and that this right was not unfettered. Reliance was placed on the case of Augustine Tembo v. First Quantum Minerals Limited-Mining Division9 where it was held that: " ... What we said in the Elvis Katyamba case is still applicable. So that, if the complainant gives reasons that are satisfactory to the court and it is established that those reasons occurred before the mandatory period had -JlSexpired, that will have the effect of suspending the mandatory period; and if the complainant does not unduly delay to file his application from the time that those reasons ceased to prevent him from doing so then his application will be meritorious. But if it is established that the reasons given, good as they may sound, only arose after the mandatory period had expired, then again as we said in the Elvis Katyamba case, the court cannot extend the mandatory period which has expired." 6.3. It was submitted that the claims raised in the amended notice of complaint were new and expired after the mandatory period, making the appellants' claims statute barred and absolving the court of the jurisdiction to hear and determine them. 6.4. It was argued that the appellants' application to amend the pleadings was not bonafide. That the appellants had adequate time to formulate their claims and should, in the interest of justice not be permitted to make such amendment four years from the date the action arose. We were referred to the case of Zambia Consolidated Copper Mines Limited v. Joseph David Chileshe10 where the Supreme Court held that where an action is statute barred at the time of amendment, the amendment can only be made if there are peculiar circumstances justifying extension limitation period. It was contended that no peculiar circumstances existed in the appellants' case to justify accepting the -J16amended pleadings as they had nearly 5 years since commencing the action to frame their claims. 6.5. It was further submitted that the court should not come to the aid of litigants who have sat on their rights for such a long period of time. We were urged to dismiss the appeal. 6.6. In ground two, the respondents argued that this ground was entirely baseless as the appellants' application for leave to amend the notice of complaint and affidavit were made ex-parte and the respondents had no knowledge of it, nor were they given an opportunity to be heard on the application. That the respondents were therefore well within their right to apply to strike out the amended pleading on that basis. 6.7. That even if initially leave was granted ex-parte, the court below was at liberty to dismiss the amended claims for being statute barred as that goes to the root of the court's jurisdiction. We were referred to a number of authorities on jurisdiction which included Godfrey Miyanda v. The High Court11 and Morgan Naik v. Simon David Burgess and Others12 • 6.8. It was contended that on the strength of the cited authorities, this ground should be dismissed as the court could not make any determination without having jurisdiction to do so. 6.9. In ground three, it was submitted that it is trite law that the courts can award alternative relief that is not pleaded by the parties if it is justified -J17as held in Indo Zambia Bank v. Banda13 • It was contended that the court was not prohibited from dismissing the matter, even though the respondent did not specifically ask for its dismissal. 6.10. We were urged to dismiss this ground. 6.11. In ground four, it was argued that the appellants in fact had an opportunity to be heard as page 13 of the record of appeal confirms that the appellants were present when the court gave its ex-tempore ruling. That both parties had the opportunity to respond to the application before the court. That the appellants even filed a written opposition to the respondent's application in the court below as evidenced at page 138 of the record of appeal. They relied on the New Plast Industries case supra for this case. 6.12. In relation to ground five, it was put before the court that the question that begs answering was: should the appellants have been permitted to rely on the abandoned original claims before the court below? In answer to this, the respondents argued that when the appellants filed their amended pleadings, the original pleadings fell off and were replaced by the amended pleadings. That the appellants therefore did not have any set of pleadings before the court. That the court rightfully proceeded to set aside the amended pleadings for being statute barred and the appellants cannot seek to rely on them. -J186.13. In summary, we were urged to dismiss the appeal with costs to the respondents. 7.0. HEARING 7.1. At the hearing of the appeal, learned counsel for the parties placed reliance on their respective arguments and briefly augmented their arguments. 8.0. DECISION OF THE COURT 8.1. We have earnestly considered the record of appeal and the arguments advanced by the parties. We will consider grounds one, two, three and five together as we are of the view that they are related. 8.2. The cardinal principle in allowing amendment is for the determination of all questions in controversy between the parties where it is apparent that the real questions had not been raised in the pleadings. The learned author of Zambia Civil Procedure: Commentary and Cases at page 695 puts it in such terms: " ... It is only proper and fair that the law should allow for amendments of pleadings. Thus, the court may at any stage allow a party or parties to the proceedings to amend the pleadings in such a manner and on such terms as may be necessary for the purpose of determining the real questions in controversy." 8.3. Whilst a party may seek amendment of pleadings at any stage of the proceedings, a party's right to amend their pleadings is not open-ended. The paramount consideration for granting leave to amend to pleadings -J19is that there should be no prejudice occasioned to the other party beyond what is compensable in costs as has been postulated in ZCCM v. Joseph David Chileshe and Zambia Seed Company Limited v. West Co-Op Haulage and Western Province Cooperative Union supra. 8.4. Furthermore, it is imperative to state that an amendment may be allowed notwithstanding that its effect will be to add or substitute a new cause of action if the new action arises out of the same facts as the action proposed to be amended. This was illustrated by the Supreme Court in ZCCM Limited v. Joseph Chileshe supra where it was stated that: "An amendment may be allowed notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment." 8.5. In ascertaining whether or not the trial court was on firm ground, we have carefully examined the amendments to the notice of complaint and the affidavit in support of the complaint. 8.6. As earlier pointed out, the appellants in their original notice of complaint filed on 26th March, 2018, sought an order that the complainants be -J20paid the balance of their redundancy benefits amounting to ZMW582,884.41; an order that the complainants be paid the sum of ZMW63,15.71; and an order for payment of their salaries, among other reliefs. 8.7. The appellants obtained an ex-parte order to amend their pleadings and consequently filed into court the amended notice of complaint and affidavit in support on 20th September, 2023 seeking inter alia a declaratory order that the respondents' termination of the complainants' contract of employment was unlawful, unfair and wrongful; and payment of forty-two( 42) months' salary as damages for the wrongful, unfair and unlawful termination and unfair discrimination, with respect to all the complainants; 8.8. We have carefully considered the original and amended pleadings. The claims for unlawful, unfair and wrongful dismissal in the appellants' amended notice of complaint are seemingly stemming from the merger of the 1st respondent with the 2nd respondent and the restructuring process that occurred as a result. It is thus clear that the claims in the amended notice of complaint arise out of substantially the same set of facts as those already before court in the original process filed on 26th March 2018. -J218.9. It is further not in dispute that the amendment sought was made about five years after the original notice of complaint was filed and also outside the 90 days period provided for under Section 85{3) of the Industrial and Labour Relations Act. The question therefore is whether the amended reliefs were statute barred, having been filed outside the prescribed 90 days period. 8.10. We must however, hasten to add that the amendments sought were in respect of the original claim which the appellants filed out of time with leave of court. Following the appointment of their new legal representation, the appellants sought leave to amend their pleadings to bring all necessary information before the court for proper determination of the cause. The learned trial court having applied his mind to the arguments advanced by the appellants, granted leave to amend the pleadings. The effect of this leave, in our view, is a circumvention of whatever time limits marred the appellants' new claims. It goes without saying therefore, that the appellants' complaint which they sought to amend and the impugned amended notice of complaint and affidavit were therefore properly before the court, having been filed with leave of the court. Further, a complaint was already before the court and a proper reading of the Section, the prohibition or restriction relates to bringing a complaint or application, not amending an existing complaint before the court. -J228.11. The long and short of our holding therefore, is that the amended claims were not statute barred. 8.12. In the premises, the question as to whether the lower court was entitled to dismiss the entire action before it suo moto and the question under ground four that the appellant was not given an opportunity to be heard become otiose. 9.0. CONCLUSION 9.1. The net result is that the appeal succeeds and we accordingly order that the matter be sent back to the Industrial Relations Division for trial on the appellants amended notice of complaint. 9.2. We make no order as to costs. ~ --:-: . ...... :\. ...............~ .... . M. M. KONDOLO, SC COURT OF APPEAL JUDGE ~~.{ ~ ........;. .· M: .. MlliCt~·. ........ ·······~ ·············· K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE