Dhiraj Dhunputh v Forges Tardieu Zambia Limited and Anor (COMP/IRCK/527/2021) (3 July 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA COMP/IRCK/527 /2021 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: DHIRAJ DHUNPUTH COMPLAINANT AND FORGES TARDIEU ZAMBIA LIMITED 1 ST RESPONDENT FORGES TARDIEU LIMITED RESPONDENT 2ND Coram: Chigali Mikalile, J this 3rd day of July, 2025 For the Complainant: Ms. M. Kamwi & Ms. S. Mweetwa - Messrs. Kamwi Andeleki Legal Practitioners For the Respondent: Mr. S. Bwalya - Messrs. Solly Patel Hamir & Lawrence , ' JUI>GJIICENT Cases referred to: 1. Eastern and Southern African Trade v. Finsbury Investment Limited, CAZ/8/85/2022 2. Antonio Ventriglia & Another v. Finsbury Investments Limited, SCZ Appeal No. 2/2019 3. Citibank Zambia Limited v. Suhayl Dudhia, CAZ/8/387 /2019 4. JNC Holdings Limited & Others v. Development Bank of Zambia, SCZ JudgmentNo.22/2013 5. Crossland Mutinta & Another v. Donavan Chipanda, SCZ No. 53/2018 · Introduction 1. The complainant was employed by the 2nd respondent, Forges Tardieu Ltd of Mauritius in 1992. In August 2015, he was seconded to Forges Tardieu Zambia Limited, the 1st respondent, a subsidiary company, to oversee the Nakambala Product Alignment and Refinery Project for the client, Zambia Sugar. Subsequently, there was a breakdown in the complainant's relationship with his employer which ultimately led to his dismissal. 2. Disconcerted by the turn of events, the complainant commenced this matter in 2021. He first sought and was granted leave to issue process for service out of jurisdiction as well as leave to file notice of complaint out of time. Pleadings 3. By an amended notice of complaint filed on 15th February, 2022, the complainant sought the following reliefs against the respondents: 1) The sum ofUS$ 3,524 being basic pay arrears for June -July 2016; 2) The sum of US$ 430 being underpayment ofp er diem for June -July, 2016; 3) The sum of US$ 997 being allowance for air ticket for holiday not taken; 4) The sum of US$ 5,629 being payment of commission on Zambia Sugar project; 5) The sum of US$ 3,260 being payment off ringe benefits; 6) The sum of UD$ 1,100 being payment for over deduction made on salary advance; 7) The sum of US$ 2,837 being payment for annual leave days accrued until July 2016; J 2 8) The sum of US$ 1,321 for repatriation costs and expenses; 9) Interest on sums due; 10) Costs; and 11) Any other award the court may deem fit. 4. The grounds upon which the complaint was presented were that sometime in July 2016, the 2nd respondent terminated the employment of the complainant without paying him his dues accrued during the course of his employment. Later in August, 2018, he reported the matter to the labour office which office directed the respondent to settle all the complainant's dues. Sometime in December, the director of the 1st respondent company assured him that all dues would be settled, provided they were proven. However, the respondent failed to comply with the labour office's directive. The justification given was that, as a foreign entity, the company did not fall under the jurisdiction of Zambia. 5. The complainant contended that by entering into a project contract with Zambia Sugar, the respondent effectively accepted that employment related matters within Zambia would be governed by Zambian laws. 6. In the affidavit in support of the complaint, the complainant deposed that he was employed by the 2nd respondent in 1992 as a draftsman. Over the years, he was promoted to the positions of Manufacturing and Construction Supervisor and, ultimately, Project Manager as evidenced by exhibits "DDl" and "DO2". On 8th August 2015, the 2nd respondent temporarily transferred him to the 1st respondent, a subsidiary of the 2nd respondent, to manage an expansion project for a client, Zambia Sugar. The 1st respondent notified Zambia Sugar that the complainant had been appointed as Project Manager for the duration of the project at its factory. J3 7. Exhibited to the affidavit and marked "DD3" and "DD4" are the complainant's identity card issued by Zambia Sugar and the letter of appointment respectively. 8. The complainant deposed that he remained in service until 1st May 2016, when he was suspended by the 2nd respondent on allegations of fraud. The suspension letter is exhibited as "DDS". He subsequently appeared before a disciplinary committee to respond to the allegations which resulted in the termination of his employment. The termination was communicated to him on 20th July 2016, as indicated in exhibit "DD6". 9. According to the complainant, at the time his contract of employment was terminated, the respondents owed him several accrued dues which he highlighted in detail and exhibited various documents in support. 10. The complainant deposed that due to the respondents' failure to settle the outstanding dues, he sought the intervention of the labour office in 2018. Despite assurances from the Director of Forges Tardieu Zambia Limited nd that he would be compensated if his dues were proven, the 2 respondent failed to comply with the lawful directive issued by the Assistant Labour Commissioner. 1 1. He further attested that according to the extract of the contract marked "DD13" between Zambia Sugar Plc and Forges Tardieu Zambia Limited, it was agreed that matters relating to employment would be governed by the Employment Act, Chapter 268 of the Laws of Zambia. 12. The respondent filed its answer on 21st March 2022, asserting that the nd complainant had been employed by and held various positions in the 2 J4 respondent company based in the Republic of Mauritius from 1992 to 2016. The complainant's contracts with the 2nd respondent were governed by the laws of Mauritius. 13. According to the respondent, the complainant accepted an appointment by the 2nd respondent as Construction Work Manager for the Nakambala Product Alignment and Refinery Project under the supervision of the 1st respondent. It was emphasized that this appointment did not constitute a substantial change in his employment terms. Furthermore, no new employment contract was signed following his appointment thereby preserving the existing terms and conditions of his original role. 14. On 1st May 2016, the complainant was suspended by the 2nd respondent pending an investigation into suspected fraudulent conduct involving the company's finances. Meanwhile, on 24th June 2016, the complainant was arrested for allegedly embezzling over K 3,000,000.00 through the creation of false receipts. On 14th July, 2016, he was subjected to a disciplinary hearing which resulted in his dismissal from the 2nd respondent effective 18th July, 2016. The complainant was paid what was due to him at dismissal including a full salary for June despite that he was not entitled. 15. The respondents denied the complainant's claims in toto. 16. In the alternative, the 1st respondent asserted that the complainant had no cause of action against it as he was employed by the 2nd respondent. This position was supported by the fact that all correspondence and pay slips were issued by or in the name of the 2nd respondent, a company registered and based in the Republic of Mauritius. J 5 l'l. Further or 1n the alternative, the 2nd respondent contended that the Zambian courts lacked the requisite jurisdiction to adjudicate upon the complainant's claims given that the employment contract between the complainant and the 2nd respondent was executed in and governed by the laws of the Republic of Mauritius. 18. The affidavit in support of the respondents' answer was deposed to by Mr. David Ambali, the nominee director of the 1st respondent, a subsidiary of the 2nd respondent. His affidavit largely reiterated the contents of the respondents' answer. It was echoed that the complainant was not entitled to the claims advanced and that his employment contract was, at all material times, governed by the laws of the Republic of Mauritius. 19. The complainant filed an affidavit in reply wherein he denied the respondents' assertion that his employment with the 2nd respondent was at all times subject to Mauritian law. He contended that Mauritian labour laws applied exclusively to local contracts of employment. In support of his position, the complainant referred to the contract between Zambia Sugar Pie and the 1st respondent. He maintained that his contract was governed by Zambian law, thus conferring jurisdiction on this Court to adjudicate upon the matter. 20. The complainant asserted that the 1st respondent had directly appointed him as Project Manager while the 2nd respondent concurrently appointed him as Construction Work Manager for the same project. He argued that the combination of his Project Manager contract and the appointment letter effectively constituted an employment contract with the 1st respondent, eliminating the need for a separate agreement. JG 21. He averred that the respondents had the same shareholders as indicated in exhibit "DDS" and asserted that the 2nd respondent had signed the contract on behalf of the 1st respondent. Consequently, the identity of the respondent that issued his suspension reflected in exhibit "DD6" was immaterial. 22. The complainant maintained that he was entitled to his salary arrears, underpayment of per diem, air ticket allowance, commission, repatriation and other sums. He relied on exhibits "DD12-13" which are documents of his payroll details and exchange rates respectively. Trial Course 23. The complainant testified on his own behalf and called no other witness. The respondent also called one witness. 24. The complainant adopted his affidavit evidence as his evidence-in-chief. During cross-examination, he confirmed that the 1st respondent was Zambian based while the 2nd was based in Mauritius and that he was employed by the 2nd respondent from 1992 to 2015. He also acknowledged that the 1st respondent is a branch of the 2nd respondent and that the two companies are individually established. 25. Referring to exhibit "DD4", the complainant maintained that it reflected his appointment by the 1st respondent, not a transfer. He denied being ~ssigned by the 2nd respondent to the Zambia Sugar project. However, he admitted that both his assignment letter and termination letter were issued by the 2nd respondent. He insisted that at the time of his termination on 20th July 2016, he had a signed contract of employment with the 1st respondent although he did not possess a copy of the document. He also J 7 insisted that "DD4" was the addendum to his contract of employment with the 1st respondent. Upon further questioning, the complainant confirmed that the 2nd respondent paid his salary and generated his pay slips, while the 1st respondent paid his taxes due to his work being based in Zambia. 26. Cross examination then focused on the complainant's specific claims and his justification for them. The complainant did concede that he was not a party to the contract between the 1st respondent and Zambia Sugar. He also confirmed that it was signed in Mauritius. 27. In re-examination, the complainant maintained that exhibit "DD4" demonstrated his appointment as Project Manager by the 1st respondent for the Zambia Sugar project. He asserted that this appointment served as an addendum to his contract governing his employment in Zambia. He was adamant that the 1st respondent refused to furnish him with a copy of the said contract. 28. The respondents' witness (RW), Mr. David Kambali, also relied on his affidavit as his evidence-in-chief. 29. Under cross-examination, he confirmed that the complainant did not supervise the finance department but denied the assertion that the suspension was wrongful. He maintained that the dismissal was fair. 30. When asked why the respondents had not produced the complainant's contract, RW responded that the terms of employment remained unchanged. JS Submissions 3L Both parties filed written submissions outlining their respective arguments. However, I have not summarized these submissions for reasons that will become evident in the course of this judgment. Consideration and decision 32. I have carefully considered the evidence presented. As seen from the Answer, the respondents deny liability. The principal objection is that the complainant was employed by the 2nd respondent, based in Mauritius, and that his contractual relationship was therefore governed by Mauritian law. As a result of the forgoing, this court has no jurisdiction over this matter. It is also contended that the complainant has no cause of action against the 1st respondent because he was not employed by it. He was paid by the 2nd respondent. Further, the respondents assailed the claims on the grounds that the complainant was not contractually entitled to them and that he was paid what was due to him. 33. The significance of jurisdiction and the importance of resolving jurisdictional questions has been emphasized in a plethora of cases. In the case of Eastern and Southern African Trade v. Finsbury Investments Limited(1) the Court of Appeal stated that it is trite law that once jurisdictional questions are brought to the attention of the Court, they must be dealt with immediately. 34. Further, the Supreme Court in the case of Antonio Ventriglia & Manuela Ventriglia v. Finsbury Investments Limited(2 stated as follows: ) "Where a jurisdictional objection is mounted against having a Court proceed with a matter, it is imperative and incumbent upon the Court concerned to resolve or J9 detennine the issue before proceeding to deal with any other issues in the matter before it"" 35. In another case of Citibank Zambia Limited v Suhayl Dudhia(3) the Court of Appeal stated as follows: A jurisdictional question can be brought up at any stage of the proceedings either by fonnal application or viva voce, even on appeal, whether or not it was raised in the court below and even where it is not pleaded in the grounds of appeal or filed heads of argument. The nature of jurisdictional questions is that, once they are brought to the attention of the Court, they must be dealt with immediately. This is because if a court decides to proceed without addressing the jurisdictional issue and it is later established that it had no jurisdiction, the court will have wasted both its own time and that of the litigants because the proceedings and everything that flows.from them will be rendered a nullity and ofno effect. 36. I am, therefore, duty bound to consider the jurisdictional question first before addressing the claims raised. 37. The complainant alleges that the 1st respondent was his employer for the period he was working at the Zambia Sugar project. However, he did not produce the contract of employment between himself and the 1st respondent. He alleged that he was never issued a copy. The 1st respondent was adamant that no such contract exists and that the employment relationship was governed by the contract between the complainant and the 2nd respondent. 38. I have carefully examined exhibit "D04" on which the complainant anchored his argument that the 1st respondent was his employer. This document is a letter assigning duties to him at the project at Nakambala. J 10 It is not a contract between him and the 1st respondent. In fact, nothing · on record supports the complainant's assertion that the 1st respondent was his employer while in Zambia. There is no proof that his salary was paid by the 1st respondent. An examination of the pay slips exhibited as "DD7'' in the complainant's affidavit in support of complaint for the period August, 2015 to June, 2016 indicate the pay site as Port Louis, Mauritius. The complainant also confirmed in cross-examination that his pay slips were issued by the 2nd respondent and that the primary expenses incurred by the 1st respondent with respect to his employment were his tax obligations. This was due to the fact that the 1st respondent is based in Zambia. 39. The complainant also exhibited to his affidavit ("DO26") an email from the Chief Human Resource Officer in Mauritius to one William Saunders in Zambia regarding the complainant's case which is reproduced hereunder: Dear William We have gone through the letter dated 11th April 2019 from the Department of Labour, Republic of Zambia in which we have inter alia been requested to settle the alleged dues to Mr. Dhiraj Dhunputh. We have sought advice from our local advisers who are of the opinion that since Mr. Dhunputh had employment contract with Forges Tardieu Mauritius, we cannot respond to the said letter as it falls within the jurisdiction of our country. Should Mr. Dhunputh have any claim and/ or litigation with Forges Tardieu Mauritius, he should address himself to the local labour authorities in Mauritius. For your information, Mr. Dhunputh has been terminated in accordance with our legislation and all dues have been fully and finally settled with his June 2016 salary. Best regards Sandrine Rouget Chief Human Resource Officer J 11 4p. The forgoing email encapsulates the respondents' position from the onset to the effect that the complainant's employer was at all times the 2nd respondent and the 1st respondent was not his employer at any given time. 41. In addition to the pay slips with Mauritius as the pay site, it will be noted that the letter suspending the complainant (exhibited as "DDS") and the letter of termination ("DD6") were both authored by the Group Chief Executive Officer based in Mauritius. Quite clearly, all major decisions regarding the complainant's employment were effected by the 2nd respondent in Mauritius. 42.1, therefore, find as a fact that the complaint was employed by the 2nd respondent, an entity domiciled in Mauritius. He was merely assigned to work on the project undertaken by the 1st respondent in Nakambala Sugar estate, which project was endorsed by the 2nd respondent. In the complainant's own words, the 1st respondent is a branch or subsidiary of the 2nd respondent. The companies are therefore separate entities. 43. Having settled the above, the question is: is this matter properly before this court? 44. In the case of JNC Holding Limited v. Development Bank of Zambia(4 ) the Supreme Court stated if a matter is not properly before a court, that court has no jurisdiction to make any orders or grant any remedies. 45. In casu, as has been found, the complainant's contract of employment is not with an employer within this jurisdiction. The employer is based in Mauritius. I have not overlooked the argument that by signing the contract J 12 _ with Zambia Sugar Plc, the 2nd respondent accepted to be bound by the Employment Act, Chapter 268 as provided in annexure 6 of the contract. However, annexure 6 refers to procedures for work permits and employment of local labour. I am of the considered view that without a contract of employment with the Zambian domiciled company, the Employment Act cannot apply. 46. In the circumstances, I find that this matter is not properly before ·me. Clearly, this court lacks jurisdiction to adjudicate upon a contract governed by the laws of the Republic of Mauritius. 4 7. In the case of Crossland Mu tint a & Another v. Donavan Chip anda (5 the ) Supreme Court reiterated that: Absence of jurisdiction nullifies whatever decision that follows from such proceedings .... As we said in the Vengelatos case, the decision of a court which purports to exercise a jurisdiction it does not have amounts to nothing. This is better illustrated by the latin maxi.m ex nihilo nihil fit( from nothing, nothing comes). 48. I also draw wisdom from the decisions of the Court of Appeal cited earlier and Supreme Court case of Citibank Zambia Limited v Suhayl Dudhia(6 ) in which the Court in affirming the position on jurisdiction stated that: We agree with the authorities that hold that when a Court is destitute of jurisdiction, it has no legal capacity to deal with a matter beyond the determination that it has no jurisdiction. 49. In light of the forgoing, the rest of the issues raised by this complaint become otiose. Simply put, I will not delve into the intricacies of the complainant's claims and accordingly, the matter is dismissed forthwith. J 13 50. Each party shall bear their own cost. Parties are informed of their right to appeal. Delivered at Lusaka this 3rd day of July, 2025 ........... ~ ~ M. C. Mikalile HIGH COURT JUDGE J 14