Joseph Daka and Anor v Zesco Limited (2023/HPIR/ 168) (19 February 2024) – ZambiaLII

IN THE HIGH COURT OF ZAMBIA 2023/HPIR/ 168 AT THE PRINCIPAL REGISTRY INDUSTR[AL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN JOSEPHDAKA BYINGTON MAINZA AND ZESCO LIMITED RESPONDENT Coram: Chigali Mikaltle, J this l 9th day of February, 2024 For the Complainants: In person For the Respondent: Ms. J. Kunda Ms. M. Siarnutwa-ln House Counsel ----------------- R "OIJNG -------------- Cases referred to: 1. Antonia Ventriglia & Another v. Finsbury Investment Limited, SCZ Appeal No. 2/2019 2. Mumba v. Zambia Revenue Authority, 2016 ZMSC 269 3. Donovan v. Gwentoys Limited (1990) 1 WLR 472 Rl Legislation referred to: 1. The Industrial Relations Court Rules, Chapter 269 2. The Limitation Act, 1939 Introduction and background 1. The complainants commenced this action by Notice of Complaint on 16th February, 2023 claiming gratuity for 3 years plus costs. They allege that they were employed by the respondent on 9th July, 2013 and 30th October, 2015 until retirement in August, 2022 and October, 2021 respectively. They were paid terminal benefits but were not paid gratuity for the contracts served hence this action. 2. The respondent filed an Answer on 8th May, 2023 which Answer highlighted that the complainants signed conversion contracts that converted them from contract employees to permanent and pensionable employees and that they forfeited their gratuity. 3. The matter was set down for trial but before the trial date, the respondent, on 7th December, 2023, filed Notice to raise a preliminary issue pursuant to Rules 38 and 55 of the Industrial Relations Court Rules, Cap 269 as read with section 2( I )(a} of the Limitations Act, 1939 on the following ground: R2 Whether this Court has the requisite jurisdiction to entertain and determine the complainants' action which is statute barred in light of the fact that the said action was commenced after 6 years from the purported date the cause of action arose. Respondent's case 4. The affidavit in support of the notice was deposed to by Jane Ngulube Kunda, the respondent,s Principal Legal Officer. She deposed that the complainants' fixed term contracts of employment were converted to permanent and pensionable contracts on 4th January, 2016. The permanent and pensionable contracts came to an end on 4th August, 2022 and 7th October, 2021 respectively on the basis that the complainants had attained their retirement age of 60 years. The retirement notices (" JNK3 and 4") are exhibited to the affidavit. 5. According to the deponent, the complainants' cause of action accrued on 4th January, 2016 when they were converted from fixed term contract employees to permanent and pensionable employees. The letters of conversion are exhibited "JNK5" and "JNK6". 6. In the skeleton arguments counsel for the respondent submitted that over 7 years had elapsed from the time the R3 complainants' action accrued on 4th January, 2016. Thus, the Court is called upon to make a final order in accordance with Rules 38 and 55 of Cap 269 which state as follows: 38. "The Court may, on the application of any party, make as an interim order, any order which under the Act it could make as a final order in the proceedings." 55. "Nothing in these Rtiles shall be deemed to limit or oth.eru.,ise affect. the power of the Court to make such order as may be necessary for the ends of justice or to prevent the abuse of the process oft he Court. 7. On the jurisdiction of the Court, it was submitted that the case in casu is founded on an employment contract and therefore section 2( 1) (a) of the Statute of Limitations Act is applicable. Counsel went on to cite various cases including Antonio Ventriglia & Another v. Finsbury Investment Limitedl11 where the Supreme Court guided 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. The Court further held that jurisdiction is everything and without it, a Court has no power to make one more step. Where a Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. R4 8. At the hearing counsel emphasised that the issue before Court goes to jurisdiction and as such the Court ought to make a determination in the interest of justice. Complainants' case 9. In the affidavit 1n opposition filed on 22nd January, 2024, sworn by the 1st complainant, it was averred that the complainants failed to sue at that time because they were still employed by the respondent. According to the deponent, when they got engaged by the respondent, the agreement was that they would retire at 65 years but to their surprise, the respondent retired them at 60 years. Therefore, they expect the respondent to pay their 3 years gratuity since their contracts were breached. 10. It was argued at the hearing that there is a penalty for bringing the employer to Court while still in employment hence the action being brought after retirement. Determination 11. I have considered the affidavit evidence and skeleton arguments in support of the preliminary issue. As rightly observed by the respondent, this Court does have the jurisdiction to decide the preliminary issue raised by virtue of Rules 33 and 55 of the Industrial Relations Court Rules which rules enable the applicant to file interlocutory applications a...---id RS grants the Court power to make orders necessary for the ends of justice and to prevent abuse of the process of the Court. 12. It is a fact that the complainants' contracts of employment were converted from fixed term to permanent and pensionable contracts. Both complainants were written to on 23rd December, 2015 as regards the conversion as per exhibits marked "JNK5" and "JNK6". Both letters are clear that the complainants applied for the conversion and that management accepted their request for the conversion. Both letters are also clear that the commencement date of the new employment status was 4th January, 2016. 13. The respondent argues that the cause of action arose on that date making the complainants a little too late by commencing the action in February, 2023. The complainants claim that they could not sue as they were still in employment and there were consequences for taking such a step. 14. I have carefully considered the foregoing arguments. To begin with, I have examined the provision pursuant to which the respondent's case is anchored, that is, section 2(1)(a) of the Limitation Act, 1939. This provision demands that actions involving a simple contract be brought within 6 years from the date an action accrued. In the case of Mumba v. Zambia Revenue Authority(2l the supreme Court at page J 16 stated R6 that "In our view a contract of employment is a simple contract and falls under the ambit of the 6 year limitation period." 15. From the above authorities, it 1s clear that the general rule is that the cause of action in a simple contract accrues on the date of the breach and that the limitation period begins to run when the claimant's cause of action accrues. Further, the limitation period for a matter involving a simple contract is 6 years. 16. I have carefully perused the conversion letters which bear the same applicable terms and conditions. Clause 2 states as follows: You shall NOT be paid gratuity or make any other claims provided in your contract for the period that your contract as Assistant Plumber/ Assistant Painter was active. 17. The complainants signed their respective letters to indicate acceptance to the terms and conditions of the offe r. It is clear, therefore, that the complainants becam.e aware of the condition that they would not receive gratuity as far back as 23rd December, 2015 or 4th January, 2016 when the new employment status kicked in. This is when time begun to run. Therefore, the complainants ought to have sued the respondent not later than 4u, Januruy, 2022. The nullity. I agree with the respondent that this is a stale action and as was held in the case of Donovan v. Gwentoys Ltd(3J subjecting the respondent to such an action would be an injustice. Conclusion and orders 21. The upshot of the foregoing is that the respondent's preliminary issue on the ground of want of jurisdiction has merit. Thus, pursuant to rule 55 of the Industrial Relations Court Rules, I do hereby dismiss the complainants' Notice of Complaint in its entirety. No order is made as to costs. Leave to appeal is granted. Dated at Lusaka this 19th day of February, 2024. M.~ · HIGH COURT JUDGE R9