Buks Haulage Limited v Lloyd Musela (Appeal No. 120/2023) (2 May 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 120/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) APPELLANT RESPONDENT Coram: Kondolo, Majula and Banda-Bobo, JJA On 28th March 2024, 10th April 2024 and 2nd May, 2024 For the Appellant Mr. K. Mwiinga of William Nyirenda & Co. For the Respondent No Appearance JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Gerald Chilumba vs Zesco Limited SCZ Appeal No. I 06/ 2014. 2. Bernard Mwewa & Others vs Sable Transport Limited (2015) Vol. I ZR 128. 3. Kalenga Chansa vs Evelyn Hone College - CAZ Appeal No.134/ 2019. 4. Zambia Consolidated Copper Mines Plc vs Elvis Katyamba SCZ Appeal No. I of 2006. 5. Twampane Mining Corporative Society Limited vs E & M. Storti Mining Limited SCZ Judgment No.20 of 2011. 6. Kansans hi Mining Plc vs Mathew Mwelwa - CAZ Appeal 103/ 2019 7. Amiran Limited vs Robert Bones SCZ Appeal No. 42 of 2010. J2 8. Augustine Tembo vs First Quantum Minerals Limited-Mining Division SCZ Appeal No. 124/ 2015 9. D.E. Nkhuwa vs Lusaka Tyre Services (1977) ZR 43. 10. Edward Chilufya and 94 Others vs Konkola Copper Mines Plc SCZ Appeal No. 99 of 2015. 11. Simwanza Namponsha vs Zambia State Insurance Corporation (2010) Vol. 2 ZR 339. 1.0 Introduction 1. 0 The appeal before us is against an ex tempo re ruling of the Honourable Mr. Justice D. Mumba of the Industrial Relations Division of the High Court. In this matter, we shall, inter alia, discuss the considerations that a trial court, faced with an application for leave to file a complaint out of time, should take into account. The appeal also interrogates what amounts to pursuit of administrative channels in terms of section 85(3) of the Industrial and Labour Relations Act. 2.0 Background 2.1 The undisputed facts of the case are that the respondent, Lloyd Musela, was employed as a truck driver by the appellant in the year 2011 in the Ndola District of the Republic of Zambia. 2.2. After serving the appellant for 10 years, the respondent decided to resign from employment on 25th May, 2021 citing poor conditions of service. The respondent thereafter engaged the Labour Office to help him recover accrued leave days, gratuity and other entitlements from the appellant. J3 2.3 It would appear that the matter was not resolved amicably at the Labour Office hence, on 30th August, 2021 the respondent was advised to seek legal redress from the court concerning his claims. 2.4 On 1st June, 2022, the respondent applied to the court below for leave to file a complaint out of time pursuant to section 85(3) of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. The main reasons advanced in the affidavit for the delay was that he was trying to settle the matter outside court, but the appellant stopped appearing at the Labour Office where the matter was tabled. 3.0 Decision of the lower court 3.1 The learned High Court Judge scrutinized the evidence and the applicable law on the issues that were before him. He came to the conclusion that indeed the respondent had engaged the Labour Office to resolve the matter of a severance package. The negotiations did not yield positive results the refo re the Labour Office refe rred the matter to the Court. 3. 2 Based on the foregoing, the lower Court made a finding that the respondent had furnished sufficient reasons and that the delay was not inordinate. The respondent was accordingly granted 21 days leave to file his complaint out of time. J4 4.0 Grounds of appeal 4.1 Piqued with the decision of the lower court, the appellant has appealed on the following grounds: "1. The court below erred in law and fact when it held that the complainant's delay in filing his complaint was not inordinate despite the complainant filing his application for leave to file complaint out of time one year after separation from the respondent's company. 2. The court below erred in law and fact when it held that the complainant's act of carrying out ex-curia settlement discussions (which the appellant contends were not administrative in nature) was an excusable and/ or plausible ground for the delay in filing his complaint out of time. 3. The court below erred in law and fact when it held that the respondent's making of a demand for his separation package from the appellant within 90 days, prevented the respondent from filing a complaint at court within the requisite time when the law is to the effect that the holding of ex-curia negotiations do not stop the time from runnlng. 4. The court below erred in law and fact when it condemned the appellant in costs when the said appellant was not at fa ult or all having only filed an affidavit in opposition and skeleton arguments as required by the law when the JS respondent was the party that had Jailed to file a complaint in time thereby exposing the appellant to avoidable costs." 5.0 Appellant's Arguments 5.1 The gist of the appellant's submission in ground 1 was that the respondent only commenced leave to file a complaint out of time on 1st June, 2022 which was a year and two months from the date the incident occurred. 5.2 Counsel pointed out that this was about 10 months after the Labour Office recommended that he takes the matter to court even though this did not form part of administrative channels. It was contended that the delay was therefore inordinate and inexcusable on the authority of Gerald Chilumba vs Zesco Limited1 and Bernard Mwewa and Others vs Sable Transport Limited2 among others. 5.4 Pertaining to grounds 2 and 3, the thrust of the appellant's submission was that letters from the Labour Office, addressed to the respondent which the lower court relied on, are not indicative of administrative channels within the appellant's structures. For this proposition, the appellant sought refuge in the case of Kalenga Chansa vs Evelyn Hone College3 and Zambia Consolidated Copper Mines Plc vs Elvis Katyamba4 • 5.5 It was further asserted that, in any case, the carrying out of ex curia settlement discussions is not an excusable reason for J6 the delay in filing a complaint in court on the authority of Twampane Mining Corporative Society Limited vs E & M. Storti Mining Limited5 • 5.6 In the 4th ground of appeal, the appellant criticized the court below for condemning it in costs in breach of Rule 44 of the Industrial and Labour Relations Court Rules. That there was no finding of guilt of unreasonable delay or improper or unnecessary steps in the proceedings to warrant the condemnation in costs. To persuade us on this submission, the cases of Kansanshi Mining Plc vs Mathews Mwe lwa 6 and Amiran Limited vs Robert Bones7 were cited among others. 5.7 In wrapping up the submissions, Counsel implored us to allow the appeal and set aside the decision of the court below. 6.0 Respondent's Argument 6.1 No heads of argument were filed by the respondent. 7. 0 Hearing of the Appeal 7.1 At the hearing of the appeal on 10th April, 2024, there was only learned counsel for the appellant in attendance. There was no appearance on the part of the respondent. We noted that counsel for the appellant had filed an affidavit of service which indicated that the record of appeal and appellants heads of argument were served on the respondent law firm on 27th April, 2023 and they were fully aware of the appeal. The affidavit further disclosed that the respondent and his J7 Advocates were notified of the appeal coming up for hearing on 10th April, 2024. The response from the respondent was that he was in South Africa and thus requested counsel for the appellant, via a WhatsApp message, to have the matter adjourned. 7 .2 Based on the foregoing, we were satisfied that the respondent was fully aware of the proceedings. We declined the invitation to adjourn the matter because the respondent had not, in any event, filed his heads of argument one year down from the time he was served with the record of appeal and appellant's heads of argument. Hence, we would not have given him an audience to address the Court. 7.3 In support of the appeal, Mr. Mwiinga sought to rely on the arguments that were filed on 25th April, 2023. In his brief augmentation, he drew our attention to page 11 of the record of appeal, where the court below called in aid the case of Augustine Tembo vs First Quantum Minerals Limited Mining Division8 in granting the application. According to counsel, the reasons that were advanced for the delay were not satisfactory in that there was a 10 month period which remained unaccounted for. It was Counsel's view, therefore, that though the Augustine Tembo (supra) case was cited, the Court did not take into account the full import of it in its determination of the application. 7.4 We were thus implored to uphold the appeal. J8 8.0 Decision of this Court 8.1 We have meticulously examined the grounds of appeal and the arguments of the respective parties. This matter revolves around the use of judicial discretion by the lower court in granting the application to file a complaint out of time notwithstanding the inordinate delay. 9.0 Inordinate and Inexcusable delay 9 .1 In the 1st ground, the gnevance IS that there was an inordinate and inexcusable delay by the respondent In applying for leave. In terms of the sequence of events, the respondent resigned from work on the 25th of May, 2021 alleging poor conditions of service. He then proceeded to the Labour Office on the 30th of August, 2021 which recommended the lodging of the matter in court. The Ministry of Labour and Social Security also penned a letter to the Registrar of the High Court in this regard. It was only on the 1st of June, 2022, a period of 1 year and 2 months from the date of resignation, that the respondent decided to approach the court with an application for leave to file a complaint out of time. 9.2 We have found it imperative to outline the timelines for reasons that shall become clear. The law in relation to applications for leave for extension of time has been ably enunciated in a number of cases. The celebrated case of DE J J9 Nkhuwa vs Lusaka Tyre Services9 is a case in point where it was held as follows: "i. The granting of an extension of the time within which to appeal is entirely in the discretion of the Court} but such discretion will not be exercised without good cause; and ii. In addition to the circumstances of the delay and the reasons the refo re which provide the material on which the Court may exercise its discretion another most important factor is the length of the delay itself}} 9.3 In the case of Gerald Chilumba vs ZESCO Limited1 the } Sup rem e Court guided as fallows: "Leave to file a complaint out of time is not granted as a matter of course as though the pursuer is merely pushing an open door. The granting of leave to file delayed complaints requires that discretion is exercised judiciously. There have to be sufficient reasons for the delay to seek redress from the Court after the incident complained of The appellant has presented a lazy effort and has no plausible reasons for the delay of almost 6 months.}} 9.4 It is abundantly clear from the aforecited cases that before exercising its discretion, a court confronted with an application for leave for an extension of time, must consider JlO whether the reasons advanced are sufficient or not as well as the length of the delay. 9.5 Regarding the length of delay in casu, it took 1 year and 2 months before the respondent came to court. The length of delay in our considered view is inordinate. It was the duty of the respondent to be vigilant. In this regard, the case of Edward Chilufya and 94 Others vs Konkola Copper Mines Plc10 is insightful where it was stated that: ''Any appellant, whether represented or not, has a duty to be vigilant. Law like equity favours the vigilant. Section 19(3) of the Industrial and Labour Relations (Amendment) Act has to be construed within the maxim vigilantibus et non dormintibus Jura subveniunt (the law helps the vigilant, not those who slumber) (See paragraph 1437, Halsbury's Laws of England volume 44(1) 4th edition P867)". 9. 6 We are fortified by the foregoing to hold that the delay was inordinate. The Gerald Chilumba1 case aforecited strengthens our position where the Supreme Court considered a six months delay inexcusable. We accordingly find merit in the 1st ground of appeal and uphold it. 10.0 Ex curia settlement Discussions 10. 1 The grievance in the 2nd ground of appeal emanates from the holding by the lower court that he was engaged in ex curia discussions with the respondent over his severance package. Jl 1 We quickly turn to the prov1s10ns of the Industrial and Labour Relations Act, particularly section 85(3) which enacts as follows: "85(3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the Court- (a) 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- (i) upon application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it ... " 10.2 The above provision makes it clear that a litigant ought to lodge a complaint within 90 days of exhausting administrative procedures or the occurrence of the event. 10. 3 This therefore means that there are set timelines that a litigant has to abide by in terms of lodgment of their complaints. In casu, it has been contended that the fact that J12 the respondent had engaged in ex curia negotiations did not stop time from running. 10. 4 This question begs the answer as to whether being involved in ex curia negotiations stops time from running. We stated in Kalenga Chansa vs Evelyn Hone College3 as follows: «The principle which has been articulated in a plethora of cases is that the fact that one is engaged in ex cuna negotiations does not stop time from running.)) 10. 3 Furthermore, in the case of Twampane Mining vs E & M Storti5 called in aid by the appellants, the Supreme Court eloquently stated as follows: «The position of the law zs that ex-cuna settlement discussions do not and cannot stop the time from running. This principle was ably espoused by the learned authors of Chitty on Contract) General Principles) paragraph 1949) at page 1267) where they stated) inter alia) that once time has started running) it continues until proceedings are commenced or the claim is barred. Parties must bear in mind that ex cuna settlement discussions may fail or succeed) hence the reason to be prudent enough to prepare for any eventuality) watch the time and take the necessary steps as provided in the Rules of Court. To use ex-curia settlement discussions as an excuse for failure to comply with the rules is to do so at one's peril.)) Jl3 10.4 It is plain that ex curia settlement discussions do not stop time running. 10.5 Turning to what amounts to the pursuit of administrative channels, a litigant must use the administrative procedures within the appellant's organisation. The case of Zambia Consolidated Copper Mines Plc vs Elvis Katyamba4 had this to say on administrative channels: ''From our reasoning, it can be deduced that even though administrative channels are not defined by law, there are instances where a Complainant or Applicant finds it necessary to engage and exhaust the process of Appeal available to him/ her in the organization.'' 10.6 Turning to the case at hand, the respondent elected to engage the Labour Office which in our view did not constitute an administrative channel within the appellant's company. In any event, the authorities we have alluded to of Twampane5 and Kalenga Chansa3 are clear that time does not stop running notwithstanding that one might be in pursuit of ex curia discussions. 10.7 The demand for a separation package, in our view, should not have prevented the respondent from filing a complaint within the requisite time. The respondent resigned on his own accord on the 25th of May, 2021. Following his resignation, he demanded a separation package and having reached a Jl4 deadlock, there was nothing that prevented him from coming to court. 10.8 Having concluded as we have, it behoves us to state that the respondent ought to have been vigilant and complied with the rules of court in filing his complaint timeously. It has been said time and time again that to use ex curia settlement as an excuse is to do so at one's own peril. 10. 9 In light of the foregoing, we find merit 1n the 2nd and 3rd grounds of appeal and we uphold them. 11.0 Ground 4 - Condemnation of Appellant in Costs 11.1 The unhappiness in the 4th ground stems from the condemnation in costs of the appellant. The contention is that the court below in awarding costs against the appellant failed to direct its mind to Rule 44 of The Industrial and Labour Relations Rules and attendant case law. That the appellant was not found to have been guilty of "unreasonable delay or of improper conduct or unnecessary steps taken in the proceedings to attract the condemnation in costs". 11.2 The position taken by the appellant was eloquently stated by Mambilima CJ (as she then was) in the case of Amiran Limited vs Robert Bones when she stated as follows: "That in matters before the Industrial Relations Court) costs can only be awarded against a party if such a party is guilty of unreasonable delay) or of taking improper) JlS vexatious, or unnecessary steps in any proceedings, or of other unreasonable conduct.'' 11. 3 We too had occasion to explain the effect of Rule 44 of the Industrial and Labour Relations Court Rules in the case of Kansanshi Mining vs Mathews Mwelwa6 • 11. 4 The view that we take is that there is no evidence of impropriety on the part of the appellant to support their condemnation in costs. The trial Judge fell in error by not applying Rule 44 of the Industrial and Labour Relations Court Rules which clearly stipulates instances when a party can be inflicted with costs. 11.5 We accordingly find this ground of appeal to be meritorious and set aside the Order for costs for not being supported by the evidence on the strength of Simwanza Namponsha vs Zambia State Insurance Corporation10 • 12.0 Conclusion 12. l In sum we have found all the 3 grounds of appeal to have merit and the appeal is allowed. There was inordinate delay and no plausible reason was advanced by the respondent to warrant the grant of leave to file a complaint out of time. . . J16 13.0 Costs 13. 1 Each party shall bear their own costs in the court below and in this court . ....~ .......~ ................ . M.M. Kondolo, SC COURT OF APPEAL JUDGE ·······~ ··················· B.M. ajula A.M. Banda-Bobo COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE __J