Attorney General v Mayonga and Anor (Appeal 183 of 2013) [2016] ZMSC 276 (4 May 2016)

■1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 183/2013 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: ATTORNEY GENERAL APPELLANT AND OSCAR MBUTO MAYONGA MORRIS CHANDU KALANDO 1st RESPONDENT 2nd RESPONDENT Coram: Mambilima, CJ, Wood and Mutuna, JJS. On 5th April, 2016 and 4th May, 2016. For the Appellant: Mrs. S. Wanjelani-Deputy Chief State Advocate. For the Respondents: No Appearance. JUDGMENT Wood, JS, delivered the judgment of the Court. CASES REFERRED TO: 1. Zambia Privatisation Agency v Huddel Chisenga Chibichabo, Zamcargo Limited (2205) Z. R. 74. 2. Ellington Diwell Chongesha v Securicor Zambia Limited, Appeal No. 27/2014 3. Bank of Zambia Limited v Kasonde (1995-1997) Z. R. 238. J2 4. Vine v National Dock Labour Board (1956) 1 ALL ER 1. 5. Francis v Municipal Councilors of Kuala Lumpar (1962) 3 ALL ER 633. 6. Vidyodaya University of Ceylon v Silva (P. C) (1964) 3 ALL ER 865. 7. Zambia Airways Corporation Ltd and Gershom B. B Mubanga (1990-1992) Z. R. 149. 8. ANZ Grindlays Bank(Z) Limited v Chrispin Kaona (1995) Z. R. 85. 9. Philemon Paddy Kaunda and others v Zambia Railways Ltd, SCZ Appeal No. 13/2001. LEGISLATION REFERRED TO. 1. Order 39 Rule 5 of the High Court Rules, Chapter 27 of the Laws of Zambia. 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 3. Constitution of Zambia, Chapter 1 of the Laws of Zambia. This is an appeal against a ruling of the Industrial Relations Court reviewing its judgment. On 29th July, 2009, the Industrial Relations Court delivered a judgment in favour of the respondents, in which it held that their dismissals were null and void and ordered that they be paid their salaries and allowances for 24 months together with interest. On 9th April, 2013, the respondents filed in a summons for interpretation of judgment. In the affidavit in support of the summons, the respondents contended that the judgment of the J3 court had ordered reinstatement and the 24 months’ salary was damages for wrongful dismissal and not for the loss of office which the court declared null and void. The application was not objected to by the appellant, as the appellant was of the view that an interpretation would benefit all the parties. On 17th May, 2013, the Industrial Relations Court heard the respondent’s application for interpretation of its judgment. In its ruling of 5th July, 2013, the Industrial Relations Court held that this was a proper case in which it should exercise its power of review of its judgment, rather than interpret it in relation to the remedy granted to the respondents. It then ordered that the respondents should be reinstated in their positions and that they be given letters of first warning, which was the appropriate penalty for misconduct. The court then proceeded to set aside the 24 months damages awarded to the respondents and ordered reinstatement. The two grounds upon which the appellant has appealed to this court are substantially that the court erred in law and in fact in reviewing its judgment instead of interpreting it and that it further erred in law and in fact in setting aside the award of damages J4 instead of interpreting the judgment and ordering that the respondents be reinstated in their positions and accordingly be given letters of first warning. The respondents filed in a notice of non-appearance on 24th March, 2016, in which they indicated that they would rely on their filed heads of argument. In the first ground of appeal, Mrs. Wanjelani argued that the respondents’ claim in the court below was for damages for wrongful dismissal from employment and damages for loss of career prospects. The court awarded the respondents salary arrears for 24 months as damages for wrongful dismissal. The respondents did not contend in their application for interpretation of the judgment that they were unhappy with the 24 months’ salary awarded to them as damages. The court in its ruling on the application for interpretation of the judgment instead went on to exercise the power of review of its judgment, resulting in the court ordering that the respondents be reinstated in their positions and be given letters of first warning and set aside the award of damages. This approach was not in accordance with Order 39 Rule 5 of the High Court Rules, Chapter 27 of the Laws of Zambia which provides for when a court J5 can review its judgment. It was contended that the court did not adhere to the respondents’ application for interpretation of the court’s judgment. Mrs. Wanjelani submitted that there was no fresh evidence availed before the court to justify grounds on which it could have reviewed its own judgment. She contended that in any event, the court became functus officio once it rendered its judgment, unlike the High Court which has power under Order 39 Rule 5 of the High Court rules to review its judgment. Mrs. Wanjelani cited the case of Zambia Privatisation Agency v Huddel Chisenga Chibichabo, Zamcargo Limited1 in support of this argument. It was contended this was not a proper case for the court to widen its scope under Rule 55 of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia as the aims of justice had already been met when the court ordered that the respondents be paid damages equivalent to 24 months’ salary which the appellant had since paid. In response to ground one of the appeal, the respondents submitted that the Industrial Relations Court has revisionary powers which are derived from its jurisdiction as conferred by J6 Article 94(1) of the pre-amendment Constitution of Zambia, Chapter 1 of the Laws of Zambia and as well as Rule 55 of the Industrial and Labour Relations Rules. The respondents argued that we have in some cases, acknowledged that the Industrial Relations Court has the power to review its judgment. In this regard, the respondents referred us to the case of Ellington Diwell Chongesha v Securicor Zambia Limited2 in which we held that: “........ tVe strongly feel that in order for the ends of justice to be met, the Industrial Relations Court has power to review its previous judgment.” In ground two of the appeal, Mrs. Wanjelani went on to argue that the relationship between the appellant and the respondents was that of master and servant and as such, could be terminated by either party. If there was any wrongful termination, the only remedy was in damages and not reinstatement. She cited the cases of Bank of Zambia Ltd v Kasonde3, Vine v National Dock Labour Board4, Francis v Municipal Councilors of Kuala Lumpar5, and Vidyodaya University of Ceylon v Silva6 in support of this argument. All these authorities emphasise the principle that an ordinary master and servant relationship can be terminated and if there is a breach, the remedy lies in damages. Mrs. Wanjelani stated that the J7 case of Francis v Municipal Councilors of Kuala Lumpur5 emphasises the point that reinstatement is rarely granted unless there are special circumstances. We discussed these special circumstances in the case of Zambia Airways Ltd and Gershom B. B Mubanga7 in which we ordered reinstatement on grounds that the charges brought against the respondent were unsubstantiated and could only have been brought on account of animosity towards the respondent. In the case of ANZ Grindlays Bank (Z) Limited v Crispin Kaona8, we reminded ourselves that orders for reinstatement should be made only in exceptional circumstances. Even though the evidence in that case indicated that the respondent was wrongly dismissed, we found nothing to suggest that it was one of those rare cases where reinstatement should be ordered. Mrs. Wanjelani argued that in any event, the relief of reinstatement was not expressly prayed for. In respect of ground two of the appeal, the respondents contended that the Industrial Relations Court has jurisdiction to order reinstatement in the interests of justice. They cited Section 85(A) of the Industrial and Labour Relations Act, which states that: J8 “Where the Court finds that the complaint or application presented to it is justified and reasonable, the Court shall grant such remedy as it considers just and equitable and may- fa) Make an order for reinstatement, re-employment or re-engagement.” They argued that the dismissal of the respondents occasioned gross unfairness because the penalty for the offence of misconduct was a written warning for a first breach. In this regard, the respondents cited the case of Zambia Airways Ltd and Gershom B. B Mubanga7in which we held that: “We note that the learned trial Judge took into account the necessity for there being special circumstances before making an order for re­ instatement......that gross unfairness in the dismissal of an employee could be a special circumstance justifying the making of an order for re­ instatement. ” We have considered the judgment appealed against, the record of appeal before us and the heads of argument filed by the parties. We propose to deal with both grounds of appeal as one, as the two grounds are interrelated. The issue in this appeal is whether the Industrial Relations Court could review its decision when faced with an application for interpretation of its judgment. There is considerable merit in both grounds of appeal raised by the appellant as the respondents had applied for interpretation of the J9 judgment and not review. A perusal of the ruling appealed against shows that the Industrial Relations Court seems to have reached its decision to review its judgment based on its interpretation of this court’s judgment in the unreported case of Philemon Paddy Kaunda and others v Zambia Railways Ltd9, in which we held that: “We agree that there are no specific powers given to the court to review its judgment as provided under Order 39 of the High Court rules, but we have said it before that the Industrial Relations Court is a court of substantial justice, and in order to meet the ends of justice, may in proper cases widen its scope under Rule 55 of the Rules of the Court.” Rule 55 states that: “Nothing in these Rules shall be deemed to limit or otherwise affect the power of the court to make such order as may be necessary for the ends of justice or prevent the abuse of the process of the court. ” From the ruling it is quite apparent that apart from considering Rule 55 and the case of Philemon Paddy Kaunda9 the court does not explain how it formed the view that this was a proper case in which to review its decision even without any application to that effect to do so. The court did not also explain what special circumstances existed for it to order reinstatement of the respondents or why it decided to review its decision which it had J10 delivered four years prior to its ruling. We accept the respondents’ argument that in some cases, we have held that the Industrial Relations Court can review its decision. However, the case of Chongesha v Securicor Zambia Limited2 cited by the respondents can be distinguished from the facts of this appeal. In that case, the Industrial Relations Court struck the matter off from the cause list and issued an “unless order” that restoration should be within 7 days. The matter was not restored within the 7 days ordered and was consequently dismissed. There was no service of the notice of hearing on the appellant. We considered Rule 55 of the Industrial and Labour Relations Rules together with Section 85(6) of the Industrial and Labour Relations Act which states that: "The Court shall not be bound by the rules of evidence in civil or criminal proceedings, but the main object of the Court shall be to do substantial justice between the parties. ” In that case, we held that: “There was no service of the notice of hearing on the appellant. In our view, this was not justice. The appellant had no knowledge of the hearing date and therefore, striking out the matter was unfair. The lower court should have reviewed its order and allowed the matter to be restored. This should have been done in accordance with the aims and aspirations of the Industrial Relations Court as a court of substantial Justice. Proceeding in JU the manner the lower court proceeded took away the delivery of substantial justice in that the matter was disposed of on a technicality and not on merit............ We strongly feel that in order for the ends of justice to be met, the Industrial Relations Court has the power to review its previous decisions. ” In the appeal before us, the matter was heard on the merits and determined with finality and the respondents were paid damages as ordered. In their letter to the appellant dated 16th January, 2012, the respondents acknowledged that the court did not raise the issue of reinstatement in its judgment. Further in its ruling, the court was of the view that it should exercise its power of review rather than interpret its judgment in relation to the remedy earlier granted to the complainants. The decision by the court to order reinstatement was unfair on the part of the appellant. Even the most liberal interpretation of Rule 55 does not, in our view, assist the respondents as the appellant was not heard on the decision which culminated in a review of the judgment. In fact, the decision goes against Section 85(6) of the Industrial and Labour Relations Act which states that the main object of the Industrial Relations Court is to do substantial justice. It is not every case of wrongful dismissal which calls for an order of reinstatement. We J12 have stated before that orders for reinstatement are made only in exceptional circumstances. There were none in this case. For the above reasons, we allow the appeal and set aside the order of reinstatement. In the circumstances of the case, we order that the parties bear their respective costs. I. C. MAMBILIMA CHIEF JUSTICE SUPREME COURT JUDGE