First Quantum Mining and Operations Ltd v David Sendwe and Ors (Appeal No.22/2023) (20 February 2025) – ZambiaLII

(Civil Jurisdiction) 2 OF EB 2025 BETWEEN: REGISTRY 2 APPELLANT AND DAVID SENDWE 1S TRESPONDENT JACOB SIMANGOLWA 2NDRESPONDENT BRUCE BWALY A 3RDRESPONDENT MUSONDA KAMBOBE 4™RESPONDENT MOSES MAKINA S™RESPONDENT VINCENT KAFWAYA 6™RESPONDENT STEPHEN CHALWE 7THRESPONDENT JOSEPH MUYA YA STHRESPONDENT CHILINGILA UPEME 9THRESPONDENT DENNIS SINGOGO lQTHRESPONDENT CHARITY MULOSA 11T HRESPONDENT Coram: Kondolo S.C., Majula and Banda-Bobo, JJA On 13th November, 2024 and on 20th February, 2025. For the Applicants: Mr. H. Pasi of Messrs Mando and Pasi Advocates For the Respondent: Mr. C. Chungu of Messrs Nsapato and Company RULING Banda- Bobo JA, delivered the Ruling of the Court. Cases referred to: 1. Philip Mutantika and Sheal Mulyata v Kenneth Chipungu SCZ Judgment No. 13 of 2014 2. Mega Earth Movers Limited v Rapid Global Freight Ltd CAZ Appeal 193/2020 3. Capstone Management Company Limited v Musonda Chizhinga CAZ/08/332/2023 4. Vangelatos v Metro Investments Limited and Others4 SCZ Appeal No. 35 of 2016, 5. Dar Farms Transport Limited v Moses Nundwe and Others SCZ Appeal No.46/2014 6. Chikuta v. Chipata Rural Council (1983) Z.R.26. 7. JCN Holdings v Development Bank of Zambia (Appeal 87 of 2012) [2013] ZMSC 22 (17 December 2013 8. Antonio Ventriglia & Another v Finsbury Investments Limited (Appeal 2 of 2019) [2020] ZMSC 100 (28 October 2020) 9. Owners ofM otor Vessel Lilian S v Caltex Oil {Kenya) Limited [1 989] KLR 1. 10.Mega Earth Movers v Rapid Global Freight Appeal No. 193/2020 CAZ/08/223/2019 11. Access Bank (z) Limited v. Group five/Zcon Business Park Joint Venture (SCZ/8/52 of 2014), Legislation referred to:- • Court of Appeal Rules Act No. 7 of 2016 • Court of Appeal Act, 2016 • High Court Rules Cap. 27 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This is a Ruling on a Notice of Motion to Raise Preliminary Issues (P.I) on a point of law to dismiss Appeal for Irregularity and want of jurisdiction. The application is premised on Order 10 rule 3 (9) and 6 (a) of the Court of Appeal Rules (CARs) Statutory Instrument No. 65 of 2016 of the Laws of Zambia. R2 2.0 BACKGROUND 2.1 The background to this matter is that on 4th November, 2021 the Respondents filed into the High Court, Industrial Relations Division, a Complaint accompanied by an Affidavit in Support seeking the following reliefs: i. An Order that they were unfairly, unlawfully and/ or wrongfully terminated by the Respondent; ii. 36 months' salary or such higher amount as the Court may deem fit as damages for unfair, unlawful and/ or wrongful termination; iii. Damages for unfair, wrongful and discriminatory dismissal; iv. Damages for loss of future earnings in salaries, allowances and pension benefits; v. An Order that the Respondent pays them full accrued pension benefits for the years served; vi. Interest on all sums found due; vii. Any other relief the Court may deem fit; viii. Costs of and incidental to this action. 2.2 In the Judgment dated 2nd November 2022, the learned Judge found that the Respondents had been unfairly dismissed, as their colleagues were reinstated on final warning. The Respondents were awarded twenty-four (24) months' salaries as damages for wrongful dismissal. R3 2.3 The Court, however, found that the Respondents had not proved their claim for full accrued pension benefits. 2.4 Dissatisfied with the Judgment, the Appellant herein launched this appeal on the following five grounds: i. The Court below erred in law when it held that the Respondents' summary dismissal from employment was wrongful when the Appellant complied with all the disciplinary procedures applicable to the Respondent's rules of natural justice and the procedures prescribed by law. ii. The Court erred in law when it held that the Respondents were unfairly dismissed when the Appellant did not breach any provision of any statute and despite there being facts established by the appellant to support the summary dismissal. iii. The Court below erred in law when it held that the Respondent's summary dismissal was wrongful and unfair only on the ground that they were similarly circumstanced with other employees who were reinstated without sufficient evidence to support such a finding and even though the Respondents were guilty of gross misconduct; iv. The Court below erred in law when it based its decision that the Respondents were wrongly and unfairly dismissed on the outcomes of the appeals against summary dismissal instead of basing its R4 decision on the proceedings of the disciplinary hearings as guided by this court in the case Kalumbila Minerals Limited v Bupe Kabamba (Appeal No. 59 of 2018) v. The Court below erred when it awarded excessive damages without considering the fact that the Respondents were guilty of a dismissible offence. 3. 0 THIS MOTION Before the Appeal could be heard, the Respondents, on 6th November 2024, filed a Notice of Motion to raise preliminary issues on a point of law to dismiss the Appeal for irregularity and want of jurisdiction. The issues raised were: (i) Whether the Appellant lodged the Appeal out of time without leave. (ii) Whether the Appeal should be dismissed for service out of time. 3.1 In the affidavit in support of the Notice of Motion to dismiss the Notice and Memorandum of Appeal, deposed to by Mr. Chanda Chungu, it was stated that the Notice and Memorandum of Appeal were signed by the Registrar of the High Court on 4th February 2022. Further that the Appellant proceeded to file its Record of Appeal and Heads of Argument on 27th January 2023, RS almost a year later, outside the mandatory sixty (60) day period. 3.2 The deponent averred that the Appellant was out of time when it filed the Record of Appeal without leave of court, as the Record of Appeal should have been filed by 4th April 2022. 3.3 It was further deposed that the Appellant only served the Record of Appeal and Heads of Argument on 30th October 2024, almost two years from the date of filing. 4.0 OPPOSITION 4.1 The Appellant filed its affidavit in opposition on 13th November 2024, deposed to by Hastings S. Pasi, an Advocate in the firm of Messrs Mando and Pasi Advocates, who represent the Appellant. 4.2 The deponent averred that following the delivery of judgment in favour of the Respondents, wherein the Respondents were awarded 24 months' salaries as damages for unfair and wrongful dismissal, the Respondents executed the judgment by way of a writ of fieri facias before the quantum of damages could be assessed by the court, despite the court having granted R6 an order for a stay of execution of the said judgment. This prompted the Appellant to apply to set aside the writ of fieri facias, which was accordingly granted by the court, and the court ordered the Respondents to pay the costs of execution. 4.3 It was further deposed that upon causing the ruling to be served on the Respondents' Advocates, James and Doris Legal Practitioners, on 9th December 2022, demanding payment of costs as ordered by the court, no response was received. That upon calling Mr. Mike Benwa of James and Doris Legal Practitioners, he was informed that the Respondents had withdrawn their instructions from the firm. Furthermore, that the Respondents could not be located, as some had left Solwezi while others had moved residences within Solwezi to avoid execution of the court's ruling. 4.4 For these reasons, it was not possible for the Appellant to serve the Respondents with the Appeal documents. 4.5 It was further deposed that the Appellant was granted leave of court by an ex parte order dated 23rd January 2023, extending the time to lodge the appeal within R7 seven days from the date of the order. The Appellant complied by lodging the appeal on 27th January 2023 and produced the order marked "HP4." 5.0 ARGUMENTS IN SUPPORT 5.1 The Applicant filed skeleton arguments and list of authorities in support of the Preliminary Issue on 6th November 2024. 5.2 It was submitted that Order 10 Rule 6(a) of the Court of Appeal Rules is couched in mandatory terms and provides that the Appellant must file the Record of Appeal and Heads of Argument within sixty (60) days after filing the appeal. This was not done in the present case. Reference was made to, inter alia the case of Philip Mutantika and Sheal Mulyata v Kenneth Chipungu1 where the Supreme Court held that: "where a rule is couched in mandatory terms by the use of the word "shall" and is not regulatory, thereby giving the court regulatory power, any breach of such a rule is fatal to a party's case." 5.3 It was also submitted that the Appellant did not serve the Record of Appeal and Heads of Argument within the 14-day statutory period. R8 5. 4 Reference was made to the decision of this court in the case of Mega Earth Movers Limited v Rapid Global Freight Ltd2 where we held that: "service of the Record of Appeal effected outside the statutory period is null and void for want of court order for extension of time within which to serve the record of appeal and heads of argument." 5.5 It was argued that where a record is served outside the mandatory period, the court has no jurisdiction, and the appeal shall be null and void. 5.6 It was submitted that in this case, the Notice and Memorandum of Appeal were only served on the Respondent almost two years outside the mandatory 14-day period, and the Appellant only sought leave to file out of time. 5.7 Reference was made to the case of Capstone Management Company Limited v Musonda Chizhinga3 where it was held as follows: "My interpretation of Order 10 Rule 4 (9) is that an appellant is obliged to serve the notice of appeal together with the memorandum of appeal within 14 days of filling the same in the Court of Appeal registry. The respondent, having fallen out R9 of time, was supposed to apply for an extension of time as provided for by order XIII Rule 3 of the Court of Appeal Rules ... In light of the foregoing, I find merit in the motion and accordingly dismiss the appeal for non-compliance with the rules of court." 5.8 It was also argued that this court has no jurisdiction to proceed with the Appellant's appeal and must only proceed with the cross appeal. The case of Vangelatos v Metro Investments Limited and Others4, was relied upon, where the Supreme Court held 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." 6.0 ARGUMENTS IN OPPOSITION 6.1 In opposition, it was submitted that the court extended the time within which the Appellant could lodge the appeal. That the Appellant duly filed the Record of Appeal, Heads of Argument, and the list of authorities on 27th January 2023, within the 7-day period provided by the court's ex parte order dated 23rd January 2023. 6.2 Regarding the issue of service out of time, it was argued RlO that Order 10 Rule 9(9) presupposes that the Respondent is represented by a legal practitioner or is acting in person, with an address for service known to the Appellant. However, in this case, the Respondents proceeded in person before the lower court, and their addresses were unknown to the Appellant. 6.3 It was further argued that the applicant has not cited any provision in the rules which allows him to make an application for dismissal of appeal for late service or which allows the court to dismiss the appeal on that ground. It was submitted that Order 10 Rule 7 only provided for dismissal of the appeal for lack of prosecution only where the appeal is not lodged within the time stipulated and not for failure of service. That in this case the appellant lodged the appeal within the time stipulated by the ex parte order dated 23rd January 2023. 7.0 HEARING 7 .1 At the hearing, Mr. Chungu argued that the Appellant did not serve the Memorandum of Appeal on the Respondents and that there was no order granting leave on the record. Rll 7. 2 Reference was made to the case of Dar Farms Transport Limited v Moses Nundwe5 where the , Supreme Court guided that: "it was because of the foregoing that we dismissed the appeal on the basis that it was incompetent as there was no order granting leave in the record of appeal." 7.3 It was further argued that following the grant ofleave to file the memorandum and notice of appeal out of time, the appellant did not serve the Respondents with the documents within 14 days. 7.4 Mr. Pasi countered that the Respondents' lawyers ceased acting for them after the lower court's ruling, refused to accept court process, and that the Respondents actively avoided service. 7. 5 As regards the argument that the ex parte order for extension of time was not filed on record, it was submitted that the Court of Appeal now has rules with clear provisions on the question of an order being on the court's record. It was further submitted that if counsel for the Respondents had just conducted a simple search R12 it could have saved the court's precious time of making that argument. Further that the respondents, having filed their heads of argument and having cross appealed, there was no prejudice that they would suffer if this appeal was heard. 7.6 In Reply, Mr. Chungu submitted that there was a way in which to contact the respondents in order to serve them because they were former employees of the Appellant. Further, that the Appellant's argument that the Respondents resisted service lacks merit as no evidence on how they resisted has been provided. 8. 0 DECISION 8. 1 We have carefully considered the preliminary issue raised, the skeleton arguments, and the oral submissions by both parties. The key issue is whether this Court has jurisdiction to hear the appeal. 8.2 The principle in Chikuta v. Chipata Rural Council6 dictates that a court must determine jurisdiction before proceeding. 8.3 The same principle was cited with approval in the case of JCN Holdings Limited v. Development Bank of Zambia7 where the Court held that: - R13 "It is clear from the Chikuta and New Plast Industries cases, that if a court has no jurisdiction to hear and determine a matter, it cannot make any lawful orders or grant any remedies sought by a party to that matter." 8.4 Furthermore, in the case of Ventriglia and Another v. Finsbury Investment Limited8 the Supreme Court , cited with approval, the Kenyan case of Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Limited9, where it was held that:- "lt is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction ... where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing." R14 8.5 In the matter before us, the Record of Appeal reveals that the Appellant filed the Notice and Memorandum of Appeal on 4th November 2022. 8.6 The cover of the Record of Appeal shows that the Record of Appeal and Heads of Argument were filed on 27th January 2023, after the Appellant was granted leave by the Court, by way of an ex-parte order dated 23rd January, 2023. In the affidavit opposing the preliminary objection to the appeal, filed on November 13, 2024, the Appellant exhibited the said Order, marked as 'HP4', which was granted by a single judge of this court. Therefore, the issue of leave for filing of the record of appeal and heads of argument becomes redundant in view of the evidence on record that leave to file out of time was granted. 8. 7 The next issue to resolve is the one involving service of the record of appeal after the 14 days period. Order 10 rule 9, sub rule 9 of the Court of Appeal Rules clearly provides for service of the record of appeal, together with the heads of argument, on the Respondents within 14 days from the date of filing. That Order uses the word RlS "shall" in its prov1s10ns, which makes its observance mandatory. 8.8 In casu, the Appellant only served the Record of Appeal on 30th October 2024, nearly two years after filing, in contravention of Order X Rule 9(9). 8. 9 The argument that it was not possible for the Appellant to serve the Respondents with the Appeal documents does not help the Appellant because the Respondents have exhibited a letter marked 'CC l ' showing that the Appellant served the Respondents' advocates Messrs James and Doris Legal Practitioners with the Record of Appeal and the Appellants List of Authorities and Heads of Arguments on 30th October, 2024. However, there was no leave obtained allowing them to serve outside the stipulated timeframe, as should have been the case. 8.10 We reiterate our decision in the case of Mega Earth Movers v. Rapid Global Freight10 where we held that: "The argument that the Appellant served the Record and heads of argument before the Respondent filed the Notice of Motion to dismiss the appeal does not help the Appellant because it was already out of time. Further, having fallen out of time, the Appellant failed to apply for an extension of time as provided R16 for by Order XIII rule 3 of the Court of Appeal Rules.'' 8.11 In the case of Access Bank (z) Limited v. Group five/Zcon Business Park Joint Venture11, the Supreme Court had this to say regarding the issue of timelines; at page J24: "... rules of procedure and timelines serve to make the process of adjudication fair, just, certain and even handed ... " 8.12 The argument by the Appellant that there is no provision allowing for a dismissal for want of service, in our view, flies in the teeth of the above guidance. It would be absurd to assume that failure to adhere to a mandatory provision could not be visited by sanctions of dismissal of the appeal. Thus effecting service on the Respondents, as was done herein, without leave of court to extend time for such service was contrary to the Rules of this Court, and makes the appeal incompetent before us. 9. 0 CONCLUSION 9.1 Having reviewed the law and authorities, we conclude R17 that the Appellant's appeal is incompetently before this Court due to the failure to serve the Record of Appeal and Heads of Argument within the stipulated 14-day period and for failure to obtain leave to serve out of time. 9.2 As such, we have no jurisdiction to hear this appeal. The preliminary issue succeeds, and the appeal is dismissed for want of jurisdiction. 9.3 Costs are for the respondent, to be taxed in default of agreement. c::==--<___ ..........................-.=.--.-=.=.-.-.......... M. M. KONDOLO, SC COURT OF APPEAL JUDGE ··········~ ··········· B. M. MAJULA A.M.BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE R18