Brain Mbozi v Armaguard Security Limited (COMP/IRCLK/ 554/2020) [2022] ZMIC 10 (13 January 2022)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) COMP /IRCLK/ 554/2020 BETWEEN: BRIAN MBOZI AND COMPLAINANT ARMAGUARD SECURITY LIMITED RESPONDENT Coram: Hon. Lady Justice Dr. W. Sithole Mwenda in Chambers at Lusaka this 13th day of January, 2022. For the Complainant: Mr. Y. Dalca of Lusitu Chambers For the Respondent: Mr. V. Kayawe, Respondent's In-house Counsel RULING Cases referred to: 1. Guarda.ll Security Group Limited v. Reinjord Kabwe, CAZ Appeal No. 44/2019. 2. Hakainde 1-lichilema and Geoffrey Bwalya Mwamba v. Edgar Chagwa Lungu, !nonge Wina, Electoral Commission and Attorney General, 20 16/CC/003 1. 3 . Henry Kapo/co v. The People, 2 01 6/CC/ 0023. 4. Kafula Rashid Mulenga Comp/ IRCLK/ 130/ 2019. v. ZSJC General Ins urance Limited, 5. Nosi/cu Likolo v. Magnum Security Services Limited, Comp. No. IRCLK/ 154/2021. Legislation cited: 1. Order 14A, rule 2 of the Rules of the Supreme Court of England and Wales, 1999 Edition (The White Boole). (b) (ii) of The 2. Section 19 (3) Industrial and Labour R e lations {Amendment) Act No. 8 of 2008. R2 3. Section 85 (5) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 1. Introduction 1.1 On 19th October, 2021, the Respondent filed into Court a Notice of Intention to Raise Preliminary Issue pursuant to Order 14A of the Rules of the Supreme Court of England and Wales, 1999 Edition (the White Book). 1.2 The issue in limine which the Respondent wants this Court to determine is as follows: "That by Section 19 (3) (b) (ii) of the Industrial and Labour Relations (Amendment) Act of 2008, 'the Court shall dispose of the matter within a period of one year from the day on which the complaint or application is presented to it'. this The complaint herein was filed/ presented to honourable Court on 10th September, 2 020 and thus the matter was mandated by law to be disposed of (Judgment re ndered) by not later than 1 ]th September, 202 1 as provided by Section 19 (3) (b) (ii) of the Industrial and Labour Relations {Amendment) Act of It is the Responde nt's contention that the 2008. complaint herein the refore stands dismissed for want of prosecution as the time set/ limited for its hearing and disposal has lapsed and therefore failed by reason of that technicality. 1.3 Furthermore, that by provision of the above section the Court cannot proceed to determine this matter afte r 11 th September, 2 02 .1 a s the Court is already ''functus officio" with regard to this matte r and thus has no jurisdiction to hear this matte r. " (I R3 2. Respondent's supP-orting arguments 2.1 In support of the motion, Counsel for the Respondent filed skeleton arguments on 19th October, 2021 wherein he stated that the Complainant filed a Notice of Complaint and Affidavit in Support on 10th September, 2020 1n the Industrial Relations Division under cause number COMP/ IRCLK/ 554 / 2020 wherein he sought for damages for unfair and/ or unlawful termination of contract; compensation for loss of work; monies owed for unpaid salaries from April, 2020 until completion of contract; the payment of statutory gratuity which should have been paid at the end of th e contract in November, 2020, the return of the engine or alternatively the refund of K6,500.00 paid for the purchase of a new engine; interest; costs and any other relief the Court may deem fit. Thus, by provision of the above section, the Court cannot proceed to determine this matter after 10th September, 2021 as the Court is already functus officio with regard to this matter and thus lacks jurisdiction to hear this matter. 2.2 Counsel submitted that the Court of Appeal's case of Guardall Security Group Lirnited v. Reinford Kabwei is instructive on this mandatory provision of the law. That, in th a t case the Court guided as follows: "Failure to act within the set time limit robs the Court of jurisdiction to take any further action in the matter. Whether or not the non-compliance has been caused ( R4 by the Court or other players is immaterial as the cesser of jurisdiction is by act of law.}} 2.3 According to Counsel, his submission on lack of jurisdiction is fortified by the case of Hakainde Hichilema and Geoffrey Bwalya Mwamba v. Edgar Chagwa Lungu, Jnonge Wina, Electoral Commission and Attorney General2, where the Constitutional Court held that the petition stood dismissed for want of prosecution when the time limited for its hearing ( 14 days) lapsed and therefore, failed by reason of that technicality. That, the petitioners failed to prosecute their case within 14 days of it being filed and as such, there was no petition to be heard before the Court. 2. 4 Counsel for the Respondent submitted further, that in the case of I-lenry Kapoko v. The People3, the Constitutional Court rightly pointed out that the rules of court are a good and efficient administration of justice and that Article 118 (2) (e)° of the Constitution is not observed to do away with existing laws and procedures even when they constitute technicalities, but is intended to take care of situations where a manifest injustice would be done by paying unjustifiable regard to technicality. 2.5 Counsel for the Defendant brought to the attention of this Court the case of People v. O'Rourke✓', where the court reportedly held as follows: "In common or ordinary parlance} and in its ordinary significance} the term "shall)} is a word of command} and one which has always or which must be given a RS the the It has idea of discretion, and has compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally impe rative or invariable significance of mandatory. the excluding significance of operating to impose a duty which may be enforced, particularly if public policy is in favour of this meaning, or when addressed to public officials, or where a public interest is involved or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears, but the context ought to be very strongly persuasive before it is softened into mere p ermission. " 2.6 It was finally, submitted that in view of the above, ther efore, in the interest of justice, this case stands dismissed for want of prosecution as this Court is barre d by law from any deliberation of the matter after th e la pse on one year after its filing into Court. 3. Compl ainant's Arguments in opposition 3 .1 In opposing th e preliminary issue, Counsel for the Compla inant started by submitting that the a p p lication is irregular as it does not comply with Ord er 14A, rule 2 of the Rules of the Supreme Court of Englan d and Wales (the White Book), which sets out the m a nne r in which an a pplication under the order mus t be m a de . Tha t, accordingly, summons or a notice issued under this order must clearly state the question of law or construction that the Court is required to d ete rmine, as well a s the order being claimed upon which the Court is invited to make a determination on a question of law. R6 3 .2 Counsel for the Complainant argued that the application does not raise any question of law or construction for this Court to determine . Further, that it does not state any order that this Court should make upon the determination of the question of law and that for these reasons, the application is irregular and must be dismissed for failure to comply with the Rules. That, non-compliance with mandatory provisions renders the proceedings totally incurable and irregular. 3.3 With regard to the substantive application before court, it was submitted that the Court of Appeal in Guardall Security Group Limited v. Reinford Kabwe (Supra), has settled the effects of section 9 (3) (b) (ii) of the Industrial and Labour Relations Act as amended by Act No. 8 of 2008 and the Complainant agrees with the Respondent on the consequences of loss of jurisdiction and non -compliance with mandatory provisions as this is well establish ed law. Counsel for the Complainant admitted that it has been slightly over a year from the date the complaint was represented before the Industrial Relations Division of the High Court. Nevertheless, the Respondent neglected to consider the consequences of reallocation of a matter, given that this matter was r eallocated in June, 2021 from Hon. Judge Chisunka to Hon. Justice Dr. W. S. Mwenda who now presides over the matter. That, in the case of Kafula Rashid Mulenga v. ZSIC General Insurance R7 Limited/' Justice Nkonde SC, commenting on the Guardall Security Group Limited v. Reinford Kabwe case, observed that the Court of Appeal did not address the vital issue of what happens when a matter is reallocated from one Judge to another. Counsel submitted further, that similarly, in the case of Nosiku Lilcolo and Others v. Magnum Security Services Limiteds, this very Court noted with regret, that the Court of Appeal did not take occasion to clarify what happens when a matter is reallocated from one Judge to another. 3.4 It was contended that when this matter was reallocated to Justice Mwenda, it took on a new life and as a result, the issue of jurisdiction does not arise since the matter was deemed to have commenced on th e date the Judge took over the file. Counsel for the Complainant noted that Zambia, like the rest of the world h as been grappling with the Covid- 19 pandemic for the past two years, thus negatively impacting the prope r an d efficient administration of justice. That, th ere is not a s ingle court in Zambia whose operations h ave not b een affected by Covid- 19. That, when drafting section 19 (3) (b)(ii) of Act No. 8 of 2008, it was not envisaged that the country would experience a global pandemic like the current one; thus, it cannot be argued that Parliament intended that matters would continue b eing heard in a normal fashion without due regard for m easures aimed at pres erving life. R8 3.5 Counsel for the Complainant argued that the Respondent's application is made in bad faith and is a dishonest attempt to have the matter dismisse d on technicalities rather than determined on the merits. Further, that the Respondent has been responsible for a number of the delays that have worked against the efficient and timely prosecution of this matter. As a result, the Respondent's attempt to have this case dismissed is reprehensible. 3.6 Finally, Counsel submitted that this Court 1s mandated to administer substantial justice under section 85 (5) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia and therefore, allowing this application would be an infringement of the very principles upon which this Court is founded and an act of gross injustice. That, section 19 (3) (b) (ii) of th e Industrial and Labour Relations Act as am ended by Act No. 8 of 2008, was not intended to aJlow parties to impede the timely and efficient prosecution of cases, only to later hide behind it as the Respondent now intends to do. With that, Counsel prayed that the application be dismissed with costs. 4. The hearing 4 .1 The application came up for hearing onl 7th December, 2021 . Both Counsel for the Respondent and the Complainant made submissions which more or less replicated their written submissions, therefore, I do not ( R9 see the need to restate them here save to say that in his reply to the submissions by Counsel for the Complainant in opposition to the application, Counsel for the Respondent stated that in as far as the law is concerned ' the matter 1s before the Industrial Relations Division of the High Court, therefore, whether or not the matter is reallocated is immaterial. 4.2 Counsel for the Respondent further, submitted with regard to the second issue brought up by Counsel for the Complainant in opposition, that there is a clear point of law which this Court has been invited to determine, namely, whether this Court has the jurisdiction to continue to hear this matter in light of the provisions of section 19 (3) (b) (ii) of the Industrial a nd Labour Relations (Amendment) Act No. 8 of 2008. 5. Analysis and determination 5 . l The preliminary issue before this Court challenges the Court's jurisdiction to determine this matter in view of the provisions of section 19 (3) (b) (ii) of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008, because this matter was commenced on 1 O th September, 2020 and therefore, it should have been disposed of as provided by the aforementioned prov1s10n, not later than lQlh September, 2021. The Complainant has opposed the application arguing that this Court has the necessary jurisdiction to dispose of this case notwithstanding that the period of one year within which the matter should have been disposed of R10 has elapsed because the matter was reallocated to m e and by so doing, time for disposal of the matter starts running from the date of reallocation. The Complainant has also claimed that the application before this Court is irregular for non-compliance with Order 14A rule 2 of the Rules of the White Book. That the Notice of Intention to Raise Preliminary Issue ' ' ( has contravened Order 14A, rule 2 because the Respondent has not invited this Court to determine any question of law or construction and further, it has not stated the judgment or order which this Court is invited to make. That, on this ground alone, the application should be dismissed. 5.2 In view of the issue raised by the Complainant alleging that the application before this Court is irregular for non -compliance with the provisions of Order 14A, rule 2 of the White Book, I will determine this issue first for the simple reason that the Respondent's application ,,. stands to be nipped in the bud in the event that this Court is of the view that the application by the Respondent is indeed irregular. 5 .3 Editorial Note 14A/2/7 of Order 14A, rule 2 of the White Book, which h a s been cited by the Complainant as h a ving been contravened by the Respondent states as follows : " ... The summons should state in clear and precise terms what is the question of law or construction which the Court is required to de te rmine. If there is more than one such question, each should be stated in .. , Rll the same terms) and it should be made clear whether the several questions are cumulative or the alternative The summons should also specify) with particularity if necessary, what judgment or order is being claimed upon the determination of the question of law or constnlction." in 5.4 As earlier alluded to, Counsel for the Respondent submitted in relation to the issue raised by the Complainant, that there is a clear point of law which this Court has been invited to determine, namely, whether this Court has the jurisdiction to continue to hear this matter in light of the provisions of section 19 (3) (b) (ii) of the Industrial and Labour Relations (Am endment) Act No. 8 of 2008. 5 .5 I h a ve p erused the Notice of Intention to Raise Preliminary Issue in contention and I am of the view t h at contrary to the submission by Counsel for the Complainant that the summons has not clearly stated th e que stion of law or construction which this Court h as been a sked to determine as well as the order being cla imed upon which the Court is invited to make a d et ermination on a question of law, the summons has clearly stated the question of law which this Court is asked to dete rmine, namely, whether this Court has the jurisdiction to detcrn1ine this matter in light of the provisions of section 19 (3) (b) (ii) of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008. Further, the order being sought by the Respondent is that the matter b e dismissed for want of prosecution ( R1 2 due to lapse of the time set for its hearing and disposal. 5.6 Admittedly, Counsel for the Respondent could have done a better job in drafting the question of law and order being sought. However, the question of law and order sought are discernible. For that reason, the application has complied with the requirements of Order 14A rule 2 of the White Book and is not ) irregular. 5.7 Having 1uled that the application herein is not irregularly before court, I will now move on to the substantive application before this Court. 5.8 It is not in dispute that the complaint in this matter was filed on 10th September, 2020 and therefore, should h ave been disposed of by 10th September, 2021, in a ccordance with section 19 (3) (b) (ii) of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 which stipulates as follows: "The Court s hall dispose of the matter within a period of one year from the day on which the complaint or application is presented to it. n 5. 9 Ther e is no question that section 19 (3) (b) (ii) is mandatory in view of the use of the word "shall" and authorities a bound to the effect that a mandatory provision must be obeyed. Further, as Counsel for the Respondent correctly argued, the Court of Appeal in the Guarda ll case ruled that failure by the Court to act within the set time limit robs the Court of jurisdiction to take any further action in that matter. In that case r l R13 the Court of Appeal declared the judgment delivere d by the lower court null and void for want of jurisdiction and set it aside due to the fact that the matter had not been completed within one year from the date of filing. However the Court did not end at that. It went further and remitted the record to the Industrial Relations ' Division for re-hearing before another Judge of competent jurisdiction. The Court further ordered that the matter be deemed to have been filed on the date of the judgment in order to comply with the time limit which had commenced upon presentation of the complaint. 5. 10 As I observed in the case of Nosiku Likolo and 3 Others v. Magnum Security Services Limited5 , in the absence of guidance from the Court of Appeal as to what happens wh en a matter which has exceeded the one year period is reallocated to another Judge, I am of the vievv that in s u ch a case, the matter should be · deemed to have been filed on the date the matter is reallocated to the new Judge and time should start running from the date of reallocation. 5 .11 I am of the considered view that in the Guardall case ' after the Court of Appe al declared the judgment of the lower court as null and void and setting it aside, could have ended there, but it remitted the record to the Industrial Relations Division, from whence it originated, for re-hearing before another Judge of competent jurisdiction. In my opinion, this goes to I R14 show that a Judge, who is reallocated a matter which has already exceeded the one year limit for hearing and determination, is vested with jurisdiction to hear and determine that matter within one year from the date of reallocation. Therefore, the matter should be deemed to have been filed on the date of reallocation in order to comply with the time limit. 5.12 With regard to the argument by Counsel for the Respondent that section 19 (3) (b) (ii) uses the word "Court" and not "Judge", and that as far as the law is concerned, the matter 1s before the Industrial Relations Division of the High Court, therefore, whether or not the matter is re-allocated is immaterial, I am of the view that if that was the case, then the Court of Appeal in the Guardall case would not have remitted the record to the Industrial Relations Division to be reh eard by a another Judge of the same division, since the Court itself would have been stripped of jurisdiction to rehea r the matter. 5. 13 In the Notice of Intention to Raise Preliminary Issue, the Respondent states in the last paragraph that: "Furthe rmore, that by provision of the above section {section 19 (3) (b) {ii)) the Court cannot proceed to determine this matter after 1 .1 th September, 2021 as the Court is already "functus officio" with regard to this matter and thus has no jurisdiction to hear this matter. I) Contrary to what the Respondent has stated 1n the above-quoted paragraph, the Court of Appeal 1n the Guardall case stated that it is not correct to say that ( Rl S after the expiry of the one-year p eriod the Cour t becomes functus officio because that is not t he correct position a t law as the term refers to the status of an official or a document that has comple ted its task or p erformed his duty and served its purpose . Thus, a ccording to the Court of Appeal, the Court lacks jurisdiction to hear the matter after a period of one year has elapsed not because it has become Junctus officio, but because it has failed to act within the set time, which robs the Court of jurisdiction to take any furth er a ction in the matter. 6 . Conclusion and ruling 6 . 1 In view of the aforementioned, my determination of the question of la w raised in the preliminary issue is to the effect th at th e m a tter herein does not stand dismissed for wa nt of prosecution as this Court has the juris diction to h ear and determine the matter which · was r eallocated to the Court on 20th May, 2021 . 6 .2 Therefore, th e p reliminary issue fails and is dismissed with costs to the Complainant, to be taxed in default of agreem e n t. 6 .3 Leave to a ppeal is gr anted. Delivered at Lusaka this 13 th day of January, 2022.