Brisk Fast Limited and Anor v Wonder Fundiwa and 116 Ors (Appeal No. 142 of 2022; CAZ/08/159/2022) [2023] ZMCA 441 (8 February 2023)

TN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) 1 M Appel)ant 2 ml Appellant AND WONDER FUNDIWA AND 166 OTHERS THE LEGAL AID BOARD l ~ 167th Respondent 1681h Respondent GOLDBELL TRADING AND LOGISTICS (PTY) LIMITED GOLD MOUNTAINS HK INTERNATIONAL MINING CO LTD NORTH START AFRICAN INTERN'ATIONAL LOGISTICS (PTY) LIMITED CWNA RAILWAY RESOURCES GROUP COMPANY LIMITED BEIJING SUN RISING TRADE & ECONOMI DEVELOPMENT COMPANY LIMITED J "' Lntervenor 2 mt Intervenor 3n1 I ri tetvenor- 4 th Intervenor fit1i J .n tervenor CORAM: }W:akungu, lf gulube and Sha%l)e-PhJri+ JJA on 17'1"' January 2023 and 8 th February 2023 For the Appellants: Mi-. G. Pindani. Chonta, Musru]a & Pindani Advocates For the l 8 1 to 167th Respondents: Mr C. K. Simukonda, Kangombe & Associates .11 For the 168th Respondent~ For l st & 2nd Intervenor Mr. J . K Matet1dt: & Ms, M. Marebe~a. Legal Aid Board Mt'9 P. Chontba~ Mulenga Mttndas-hi & Company Fot' the 3rd, 4th & 5 1h Intervenors: Mr~ J . . Zulu1 Japhet Zulu Advocates JUDGMENT SBARP. E.-PRIRl, JA~ de.l_hfered the Judgment o the C.ou1't Legislation referred to· 1. the Court Q[ Appeal . RUles, Statutoty Tnstniment No. 65 of '2016 2. The Rules of the SVpreme Court of &\gland, (Whzte BoqkJ 1999 Edit.iQr -3. The Constitvtiott ofZarrtbia (Amendment Act) No. 1 of2·Q16 Cases referred to: 1, Zambia Telecom.murucatfons Company uimiled v Aaron Mweene Mu.1wanda and at.hers (201 2 / Vol. ZR 404-SC 2 . Minis(.er of Hom~ l!ffains1 Attomey General and Lee Rabasonda (20071 ZR .207 3. Zu,l-u v Avondale Housing Project ( J g82) ZR J 72 4. WilliamHan~ngton u Han. DCJrf1 . Sifiya and TheAttmney General SCZ 14of2011 5. First. National Bottk Zambia limited v Chizma:ni Jnoestmenf~ Li1mted A.pµtf!al 162 o/2019, CA G Raphael Chisup0 o Afric,;J.n Banking Corporation Zambia Limited CAZ Appeal n o.r20 19 , _ Kefoirt Haf?.§andu atid Com_pcmy (a firm) t) ivebby Mulu.bisha Vol. 2 ZR 82 Othet' works cited 1, Matibin~ P. Zambi(J.n Ciuil Procedure Commenrc,ry and Cases. Volume 2, 2017, page 1120-112 J, Le.iris Nexis J 1.0 . INTRODUCTION l 1 This is an appeal ;;1gai11st the n1.ling 0f Mwansa~ J of the I11dustrial Relations Division of.the Lusaka High Court deltvered on 2 1st April 2022. l.2 By that ruling made under cause nu111ber COMP No. IRCLK/204/2022r the learned trial Judge ordered a stay of exec-utio11 of a Consent Order/ Judgment of 10th March 2022 made under cause number COMP/IRD/Ll</684/2021 and e..'{ecuted by Banda. J (as he was then). 1.3 The leru·ned trial Judge also ordered that the action in the Lusaka High Court fot· Zan1bia under cause nuniber COMP No. IRC/LK/204/2022 be con~olidated with COMP number IRD / LK/ 684 / 2021 and be heard by the Judge hearing the latter case 2.0' BACKGROUND 2 . 1 The brie( background of this case is that the 1 r.t and 2nd Appellants Brisk Fast Limited and Brisl< F.ast Trading (Pty) Limited conunenced an action by way of Notice of Complaint {as 1 ~l and 2nd Complainants) fr) the Industrial Relations Division of the L-usaka High Court on the. 6 th Decernber 2021 under cause number COMP/IRCLK/684/21 against En<'.>ck Mashilipa attd 245 others, 22 The action was brought putstiant to Section 85(4) or tbe lnduatrial and Labou-r Refations Act;, Ch,apter 269 of the Laws of Zambia seeking the following reliefs~ (j) Drunages and compensation for breach of employment contra,ct by failing to tit11ely deliver the goods and/or sut·rend:er pTope1ty to the e1nployer (1i) An order to set off all aocutnul~ted penalties, parking fees and losses caused by the comphunant as well as unaccounted for/ in retired. trjp money again~t terminal benefits dt.te and payable to the re~po11dents. (ii1) Intere$t 011 any m onies, found dut {iv) An order of inte1·iln rnandatot-y injunction to compel the res.pondents to sun·eno.er property which came into their possession by virtue of their employm@nt and aft-erwards stay away fro1n the properzy (vt Legal cost~ of and incidental to this action. (vll Any other r~lief the Court may deern fit 2 .3 The l;,i and 2nd Appellants also brought an apphcation for a m~.1idatoiy n1Junction directing the . Respondents to surrender the i\ppellax,ts ~ property e~hibited on fDM4b .. which came into the Respondents' possession by virtue oftheJ. T e1'11p1oyment, 2 4 The· 1~t and 2nd Appellant~ further contended that the R~spondents were employed to transport goods from South Africa via Bots·wana) Zirnbabwe and Zambia to the De.tn:ocratic Republic of Congo and back, with ag:reed remuneration packages and allowru1ces+ 2-5 That however I the Respqndents while en route/ transit to various d~tinations transporting cargo, unilate1·ally decided to park the trucks laden with high-value cargo in Lusaka, Chingola and at borders with the Democratic Republic: of Cong<;> an.d Zimbabwe respectively, The Respondents, stance turned out to be a protest over purported unpaid alk.,wances. 2.6 The Appellants fqrther contended U1at all efforts to resolve the impasse with the Respondents were unsuccessful and that the Respondents 1 actions wot.1Jd negatively impact on the Appellants l busine$8 and cause them to suffer en011nous financial losses wh1ch would. be irrevetsibje if the Respondents continued to hoid on to the con1:pany property. 2. 7 The "Respondents defended the application for a mandatory injunction, contending that they were holding t1.nta the Appellants· pt•operties and exercising a lien because of en1ploy1nent benefits owed to them following unilateral repudiation of their contracts. 2 .8 After considering this applicat1011, the learned trial Judge' found that the p-roperties that the Respondents were holding onto belonged to a co1npa.ny called North Star- South Africa International, who was not the Respondents' ~ployers and the said compm1y was not a party to the proceedmg&. 2 .9 The leari'1ed .. Judge also held that the Respondents 1 clai.111 to be exerc1s111g a lien to JUSti(y detention of the trucks was unfair and not supported by any law, The Judge granteti the n1andatory injunction and directed the Respondents to surte11der to theit' forrner employer all the transit documents, keysj cargo, ru1tl all property exhibited 011 'DM4b: which came into their possession by virtue of their e1np)oyn1ent. 2 .10 The leanied trial Judge fJ}so ordeted the le;tAppellant to pay into Court the foUowing ammJhts: (i) K4, l67l667/28 forthwith 111 sa,tisfactton of what was c-0.t1sidered to be owing to the Respondents in form of sevenmc;e and gratuity benefits; ff, (ii) K5,0007000 forthwith as security towards the payment of benefits to the Respot1dents depending on the outcome of the case aftt:r the hearing of the dispute. 2.11 Following th~ a.hove 1uling of the Coutt of 191h January 2022, the Respondents filed an application f ot a sta_y of execution or the $aid ruling on the basi~ that they had iodged an appeal against the ruling~ The Resporu:leots-contended that they v,rould suffer frrepaI'able damages if a stay of execution was not granted as the:, Appellants are not domiciled 1n Zambia 2 .12 The Appellai1ts opposed the a~plication for a stay, arguing that they ha.d suffered and continued to suffer accumulated colossal expet1ses.1 co1npany losses, dam~e, and penalties among other costs to be incurred from the time the Respondents parked the true~ lade11 v.rith high-value goods. 2 .13 After determining the appllcation for a st&y of executiont the learned Judge found that the application for a stay of his ntling of 19th January 2022 had merit and accordingly gran t.ed a stay of executio11 of the mandatory it'tjunction ruling on the· 4,h Februru:y 2022 under cause number COMP/fRCLK/684/2-021. ~ 14 A Consent was filed into Court on 10th March 2022 (page 152 of the Record of Appeal) . The said Co11sen.t Order, which wa=s drawn by the Legal Aid Board on behalf of the Respondents>- is r, consented to by the Legal Aid Board. ancl. Messrs Chonta Musail& and Pindan:i on behalf of the Respondents and Appe Uants respectively and endorsed by Judge Jo!S-hua Banda~ filed under COMP/!RD/LK/684/2021. 2 .15 The said Consent Order reads as follows; '~By CONSENT of the Complainants artd the respondents ·acting thtough thet,. respectl~ advacams herein hewing ooosldered t~ los.s of busf n.esst othel' financial losses, possible penqlttes and parking /IM!S ktng suffer~ an.d' 1:-ncurred by th4? parties and the legal implications of the within court pro~eding&, lT ts 1IEREBY AGREED and ORDE. RIED as follows: (() THAT Che Resporuien:t;s who are ,iot witting to wark u:nder the Complainants hen!in or North Star· ~agtstics (NS£) surNnder att the t'r(instt aocumentst keys and cargo an.d all property inclruUng trucks and tro.ilen1 which oame into their possession. by vtrtue of their employment to t;he Compt«inants to enable th# eantt,1ua.tton- of the business- operatto,i.s. (~'} THAT the Respondent$ continuing with work eitMt' under the Complainants. herein o,. North St(Ir Loglsifcs (NSL) immedtaMly proceed to move with tf~ trucks. (i. U/ ffIAT this consent order is by t>lrl:fJe r,fthe. Ggt<esm.ent between. the Jle$po1tdents through their adoocates heretn and Nof'tlt SfUr Loglsti.4!s /NS£) dated J. !!t Fdlruarg 20~2. (iv) T11Jl. 'r the within Consent JUdgment has ~en ~red into freely., Wit-hout Jra:u.d.. 11ndue influence, coercion, dec.tlt, mistake.., or a#JI o,ther frregulcir:lfg, (v) ffl4 T the costs of this ,001,sent or-cter be in the cattse. 2.16 Subsequently> an application to stay execution of the Consent Otder of 1 QiJ:i March 2022 was brought by the Respondents by summon~ on 17t)'i Match 2022 under cause number IRCLK/204/2022 (see paie 166 of the Record 0f Appeal, Vo. 1) ln support of this application~ the Respondents filed an affidavit of t,ven d~te under cause nun11ber COMP No. IRCLK/684/2021, sw9rn by Wonder Fundiwa, Charles Mweengata and Oliver Kat~achej Respondents in t11e action. They gave a brief history of the 1natter that fQllowing an action be1ng taket°l out against the1n, they were beu1g represented by Mauyaneyi Marebesa, Legal Aid Counsel at the Legal Aid Boai·d. 2 ) 17 Following differences with their lawyer itt February 2:022 1 ,hey t~rminated her service!$ and retained Messts Kang'on1be & Associates to act on th~ir behalf. They contel'lded that they were informed and believed that their Counse1 filed into Court their Notice Qf Appointrnent of Advocates and served the same on Legal Aid Board on 14Lh Febturu-y 2022 ~ together with a Jetter notify1ng the Legal Ald Board that the firm of Messrs Kang'on1be & Associates were to represent the 167 AppHcants, 2. 18 'The d~ponerits further contended that they were advised that on 1ou, March 2022, their Advocates had conducted a search a.t the High C-0ut't Registry and <liscoveted that the Legal Aid Board had filed a summons for entsy of a Consent Order By virtue of the said Consent Order-, tbe Respondents .. who were not willing to work under the Complainants or North Star Logistics, were cotnpetled to return or surrender all transit docume11.ts, keys and a!L propettyJ including trucks and trailers to the Complairtants_ 2 . 19 The deponents further contended tha.t the said consent order, which had the effect of concluding the rnatter between thern and the Complainants ln the original action~ was fraudulent in that it was ·not a product of irivolv~ment of all the Respondents They alleged that there n1ay have been connivance by the parties who executed the Consent Order to disadvantage or prajudice thenL 2 i20 The deponents also con tended that they had filed an exparte application for attachment of the trucks ,and trailers that ca.me .into their poa-session by virtue of their en1ployme11.t , which application had to date not been heard and detemuned. 2.2.1 The further contention was that the Respondents were desirous of having the matter heard u:nder COMP/IRD/LK/6-84/2021 and that they hacl filed an affidavit in opposition. They therefore sought a stay of execution •Of the Conse1it Order. 3.0 AFFIDAVITS IN OPPOSITION -3. l An .affidavit in opposition to the application for a ·stay of execution of the Consent Order of l 0 th MM~h 2022 was filed on 31~t March 2022 under ca\1Se 11umber 2022/HP/0408, swon1. by one Mauyafieyi Marebe.sa1 an advocate of the High Court seized with conduct of cause no. COMP/IRD/LK/684/20Ql on behalf of the 246 Respondents (at page 238 of the Record of Appeal). Counsel contends that she has authority to deipQse to the contents of this affidavit from facts within her personal knowledge and informationj having represe11ted the 246 Respondents in the actidn under cause number COMP/ IRD / LK/ 684 /2021 . 3-2 ln relation to paragraph 2 of the rufidavit in support m which the 164 Applica11ts contend that they are drivers In the employ of the 1st Respondent, Coun sel avers that this is not a true staiemen t as the 164 ddvers were all no longer err1ployed by the 1='>1 Respondent following their mutual agreement with the 1s t respondent~ that their contracts of etnployn1.ent had been frustrated by the events of xenophobia that were, prevailing at the time. Counsel referred to exhibit ~MM1' as resolub.ons of the ~greement of the parties She also contended that the '246 dri1;rers were no long.er being represe-nted by Legal Aid Board and confirmed th~t the contenuons ma.de in paragraph ·3 , ·4 , Sand 7 of the a ffidavit in support were- not in di$pUte, JU 3.3 In response to the contentions that Counsel had intimated that she would not respond to the letter fr-om her client. Coun~el stat~d that this was untm-e. She had never at a11y point tried to convince the deponents or any of the .246 drivers to accept amounts less- than what they were claiming under cause number COMP/IRD/LK/684./2021 That their cla11ns wete still fr1tact and scheduled to be heard before the CoQrt. ~1.4 Counsel further conte11.ded that 246 drivers were bei11g represented by 10 drivers whom they had chosen amongst themselves as the person.sshe would directly interact with as 1t was impo~sible foi➔ her to interact with all 246 at the same time given their different locations, She stated that the group leader of the 166 was Wonder Funcliwa. 3 . S Counsel stated further that after the ruling of 19th J~uary 2022, wherein the Court had opined that the ti·ucks belonged to a 3rd party, 1\forth Star Logistics (NSL), the 246 drivers thro1.1gh their represerttative notified ht"ir that they had been approached by Noyth Star Logistics in an attempt to resolve the matter She gave the Respondents the go-ahead to negot1a'te with North Star Logistics directly since they were not party to the proceedings before Court 3.6 Counsel went on to explain that the Respondents gave her regulfil' updates on their negotiations with North Star Logistics J.u tegarding a settlement w1th the drivers for the release of the trucks belonging to North Star Logistics to avoid loss of business on their part- She was later informed that after numerous meetings between the representatives of the 246 ddvers and the North Star wgistiC$, an agreement was reached .in t1elat1011 to a figure of K7 .000 ,000. Tl~e offer letter from North Stat Log1~tics was sent to her as pr-oof the-reof. A copy was exhibited as 'MM2 > a..lld shown at pages 253 to 254 of the Record of Appeal 3.7 Counsel stated further that following receipt of this offer, the 10 representatives of the drivers rrre-t with her and instructed her to accept the offer and communicate their acceptance to North Star Logistics.- which she did. The letter was exhibited as cMM2f shown at page 2'55-2'56 of the Record of Appeal. The said letter , dated 1st February 2022~ was endorsed by Enock Mashilipa and herself as legal representative at the request of North Stai· Logistics and did set out the terms of .agreement between the parties. 3.8 Counsel stated t hat the terms of the offer from North Star Logistics had no bearing on the Respondents> claims in cause number COMP/IRD/LK/684/2021 but only affected the case regarding the continued detention of the trucks belonging to North Star Logistics. It was agt·eed further that the second ground of appeal would be withdrawn from the ~ppeal before the Court of Appeal in cause nnm.bet· CAZ/08/20/2022 , JU 3 .9 fti lin,: wiU1 the- agreement between North Star Logi$tics and the 246 dnvets as per correspondences of 181 and 2°4 February·2022 .shown at pages 255-260 of "the Record of Appeal, North Star Logistics proceeded to deposit the 1st jnstalment paytne11t into the LegaJ Aid Boa.rd account on 4th February 2022. 3 10 Followiug payrn,ent into the1t·· arxount of the rnonies fro1n Notth Star Logistics in 246 drivers, a dispute arose wiU:1 $ante of the dr1vets on accouiit of miscomm1.1n-tcat1on over the North Star Logistics agreenient. This led to a physical altercation resulting inlrijui-y to Enock Mashihpa and one Wonder Fundiwabeing on the run. 3 .11 Coi.,nsel further conten ded that in spite of th~ confusion and disagreetnent between the partiesi sorne of the drivers had begun receiving fund~ from the Leg.al Aid Board in line ·with the North Star Logistics agtee1n~nt. ' . 12 In response to the allegation that the Legal Aid Board had ceased to represent them, Cou t1.sel contended that the drivers were obliged by law to write to the Director €Jf Legal Aid to withdraw Legal Aid from representing them, However, despite advising the patties of this legal requirement, they have not written to withdt·aw Legal Aid, Therefore, the Legal Aid Board was still on record a.s representing the drivers. 3 .13 Counsel further contended that the Consent Order was entered uito on behalf of the 167 drivers as Legal Aid Boa.rd are still on record as representing them as na11e of thetn had withdrawn Legal Aid Further> that there is no fraud or illegality on their part as they were instructed to implement tbe North Star· Logjsties agreen1.ent which was freely entered into by the drivers tben1seives, Counsel furtber- stated that the prov.isions of the law were clear on how Legal Aid is. to be withdr?---wn and this could not be done by Messrs Kang'o1nbe & Assodates. 3 14 Counsel further- contended that Messrs Kang,ombe & Associates had 11ot mtim.at~d which 167 drivers it was representing. That 41 of the said 167 drivers were on the Legal Aid list and had received the North Star Logistics money~ 3 .15 Counsel reiterated that the Consent Order only related to the North Star Logistics agreement in relation to the trucks which belong to North Star Logistics and had no bearmg on the cla.ints u.nder cause number COMP /IRD / LK/ 684 /2021. She further subm,tted that this application wa~ a grave misconception, and so were the claims that the Consent Order concludes cause nutnber COMP/IRD/LK/684/2021 1 when in fact not. 3 . l 6 Further:1 that it was wrong to suggest that she (:oe1·ced 246 drivers to sigl1 the North Star Logistics agreement when she was 1:-i.ev~r part of the discussions leading up to the North Star Log1stics agreement .3.17 Further, that the Not•th Star Logistics was in favour~ of the drivt::t>s who received ~ free goodwill offer of K25,600 eachJ plus an offer of employment, Which was aside from the sepai-ation and statutory package to be received from the 1st and 2nd Appellants. 3 .18 Another affidavit 1n opposition to the stunmons to sta.y executiol''. I of the Consent Order is on record (showr1 at page 167 to 173 of the Record of Appeal) ~ dated 30th March 2022 and filed under cause 110. 2022/HP/0408 Although it is filed undet a different cause ni..imber, it appears to have been the affidavit in opposition used in the application before 'the lower Court as the Appellants' Counsel refer~ to this affidav1t in their heads of argument 3~19 The affidavit is swom by one Lingb1n Yang, a director of the J:it and 2r,d Appellant companies He stated that the a,pl)lication to stay execution of the Cot1sent Order before the lower Court was an abu$e of Court process as the same application had be.en rnade before Banda, J under ca\.1Se nutnbet COMP /IRD / LK / 684 / 2021 . 3.2CJ The deponent also stated that Mr, Sinitltenda and Ms M~uebesa of Legal Ai.cl. Boa.rd were the lawyers having conduct of the matter on behalf of the Respondents. That Messrs Kangornhe & Associates e)tlribited a li!:lt, in their affidavit in support. which )16 showed that their firm was tep11e~enting only 48 of the 167 Respondents. Tha.t therefote the Legal Aid Board was sti1l Counsel on record for all the drivers, particularly that the Legal Aid Certificate has never been withdtawn by the Director of Legal Aid. At the time that the North Star Logistics arrangement was concluded with the parties into a Consent Orde1·, the Responde11.~ were represented by Legal Aid Board. 3,21 The depone11t further denied the .allegatia11 that the Consent Order was fraudulent and illegal and maintained that 3 of the Respondents~ namely: Mattin Ntatnbo, TichaonaKandororo and Ackhn M11pindura; with whom the Consent Ord~r was efitered, had written confirming that they ha.d not engaged Messrs Kang1ombe & Associates, 3 .22 That the Appellants had tabulated the be11efits due to the Respondents a11d offered to pay them, but the.y had disputed thefr calculations and made astronomical claim~ which are co1'ltested and yet to be adjudic(:l.ted upon. That in the meant,rne, the Court has delivered a . Ruling ordering the 1 51 Appellant to pay into Court a total surn of K9> 167,667 .28~ being be11efits and allowances and that the Hon Judge Banda was yet to adjudioate 011 the ten1ainlng clafrns. 3.23 ihe· deponent further .stated that the trucks, trailers and cargo which have been the subject of this Court;s ex-parte Order for stay are not owned by the 1st. Appellant who is the Respondents;- J17 em-ployet1 and it is therefore unfaii; to stop all the tt'Ltcl<s) ttailers and cargo from exiting Zambia as they are merely trm1siting th.rough Zrunbia and the value o-f the tl'Ucks~ h·ailers and cargo fru► exceeds the purported dai111s. 3 .24 It was further stated that Notth Star Loglstlcs (NSL)~ the clients of the 1 ~t and 2,Pd App ellants, ,vere the owne·ts of the trucks; trailers and cargo and have gravely been inconvenienced and suffered financial losses which inclu de, daily late mdt penalties payable to Zambia Revenue Authority at K900 per truck per day s4ice 8th November 2021 , parking fees-at K70 per tnick per day, uansit load fees and demurrage. 3.25 The depQnent also con tended that any further c\e)ay to exit Zambia is _prejudicial to the owners as n1ost of their drivers are foreigners who have no immigration permits to stay 1n Zrunbia, .and a1°e not authorized customs carders to remain in possession of trucks, trailers and cargo which are in transit. 4 . O DECISlO. N OF THE COURT BELOW 4 . 1 The Suinmons for Order for Stay of execution of the Consent order filea under Cause no. IRC/LK/204/2022 was initially heard ex ... parte before Judge M·wansa (shown at page 166 of ROA). An ~-parte order wa.s granted on 218 • March 2022 (Page 160 of ROA). 4 .2 By that decisionj the learned Judge ordered and directed that ~ecution of the Consent Order and Consent Judgment dated 10th March 2022 executed under cause number COMP/ IRD / LK/ 684 / 2021 and determination of the matter. The Ex-parte Order was filed under pending hearing be cause number 2022/HP/0408 U1 the Principal Registry of the High Court. 4 .3 The application for- a stay of execution was heard inter◄parrte before the Hon, Mwansa> J . At that hearing~ the Con1pla.ina.11ts (Respondents herein) were represented by Mr, M. E . Siwale of Messrs Ka.ng►oinbe & A$sociates, while the 1st and 2nd Reepottdents, (1 st and 2 nd Appellants herein) were represented by Mr, G. Pindaru cf Messrs Chon ta, Musaila and PindanI Advocates, The Legal Ajd Board, who were the 3rd Resparndet:it in that acti(>rt under cat1se number ILR/LK/204 /2022. were represented by Ms. J . Mutende. 4 4 By the ruling ofMwansa➔ J of21 at April 2022 n1ade 1.1nder cause number COMP number IRC/LK/204/2022, the learned Judge held that~ ''Now it l. S oleaf for all to see that there is a. problem, here. It i$ thu.s proper to stay U1e Consent Order and Consent . Jndg,nent so that the frcwd alleged ,qan be proued. I therefore. affinn the ex.parte st~J of ~ecution earl1er made, . And farther order that this m.a.tter mcty properly be dealt with in. 9ne cause. So, 1 order that this be consolidated with COMP/ !RD/ LK/ 684/2021 and b.€ ' hetrtrd by my brother Judge having conduct aftltat cause 0 J19 S . O THEAPPEAL 5, I Being dissatisfied With the ruling of the lower Court of21 a-1 April 2022~ the 1.st and 2nd Appellants appealed' to this Court by way of Notice of Appeal and Me1norand1.un of Appeal of 6th. May 2022 adva.rtcing 3 grounds ofappeal, namely· fi) That the learned Judge in the ,Court below e ,rred both in la.w And fa.ct wben he rendered a ruling which did not meet the benchmark of the judgment .and/OT a ,-uUng. (ii) That the learned Judge in the Court below erred both in law and fact wne.n he confi~ed the expasrte -st&t.y of executioo earlier made without arljudicating on all the issues .rui.sed by the Appellants :and the 168th Respondent on abuse of' Court ptocesa and./ or multipllcity of .a.ctiatts engaged in by the l stt to 167th Responde'UtS tnte-T alla cotttrlll'Y to the lawr (liit That ~e teamed Judge in the Court below erred ~oth hl law ltnd in fact when he reilf~d to restrict an4,/or confine the ordet of etay o-f ~x-ecution to ,a Cew of the trucks who$t! value la equivalent to th-e atttount claimed by tbe 1at to 1,67\h Re11po11dea,ts and not on aU the truck,t tmilet~ and cargo whose valu~ by far surpass the 1st to 16'ftb Respolldeilts' claims to millg•te burdtteas losses inter aUa. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6 , I The Appellants filed their heads of arguinent on 6 th July 2022 . In the fitst ground of appew., counsel argued that the ruling of the lew:ned Judge in. the lower Court did not tneet th~ benchmark of a ruling. Counsel citied the case of ·ZaJrtbia Telecoa,municatioll!!J Company Limited v Aarop Mweette l\lulwanda & others 1 where the Supreme Court set out the essential elements of every judgment. Counsel also called in aicl the case of Minister of ffome . Affairs, Attorney General v f.ee Habasonda2 where the Supreme Court of Zambia gav<: guidance on additiorial elements of ajudgmenL 6 .2 Counsel submitted that a close review of the ruling of the lower Coutt 0f 21st April 2022. shown at pages 13-16 of the ROA reveals that the Judge did nQt segment his ruling as dictated by the cited cases.. Counsel further argued that tl1e lower Court ought to have surnmaI'ized the averments of the parties> and made findings of fact a11d drawn conclusions. However1 the Co1Jrt did not do so,, according to counsel 6.3 fi'u.rther submissions were that the learned Judge ought to have· previewed the prospects of the Respondents succeeding_ in the 1nain matter before confiril'lltlg the stay of execution of the Consent Order, especially considedng the seriousness of the matter and the po.ten t:iaJ fi11ari.cial losses. 6 .4 In relation to ground 2, counsel argued that the Court ought to have adJudica.ted qpon the issues raised by the Appellant~ regarding the abuse of Court and/ or tnu]tiplicity of l.l-Ctions engaged in by the Respondents before confirming the e,c~parte stay of execution. Counsel cited the cases of Zulu v Avon.dale Holl$ing Project Limited3 and William Harrington v Bon. Dora Sillya and T:be Att--01:ney Getteral,.to rud their contention. 6 ,5 Counsel sub1nitted that the lilt and 2hd Appellants had raised the issue of abuse of the Court p1·ocess and the multiplicity of actions at paragraph 13 of the affidavit in oppo$ition appearmg at page 169 of the ROA Counsel argued that the same application had been made earlier under cause number COMP /IRD /LK/ 684 /2021 before Banda, J but that the learned Judge Mwan-sa. did not address this issue. 6 .6 Cout-1sel argued that the 1st and 2nd Appellants- had also raised the issue of legal representation of the Respondents to the efJ'ect that Legal Aid Board had not wtthdntwn fron1 acting for the Respondentsj but the Judge □id not address this issue. Counsel further highlighted paragi·aph 24 of the affidavit m opposition at page l 70 of the ROAl whetein the evidence revealed that 3 of the Respondentsl namely Martin Ntan1boJ Tichona l(andororo and Ackirn Mupindura bad denied engagmg Kang>ombe & Associates. but the lower Court did not addre$S this issue and that this was a rnisdirection on the part of the Judge. 6 1 7 In relfl.tion to gtound 3. counsel argued that the- learned Judge erred by faiHn~ tCl mitigate business tosses when he failed to :restrict or confine the1 stay- of executioi'l of the Consent Ordet to .a few of the trucks whose value was equivalent to the art1ount. claimed by the 1~t to 167rn Respondflllts and not all the truck:s , trailers and carg~ whose value far ,surpas$ed amounts claimed by the Respondents. 6 .8, Counsel aontet1.d'ed that the issue of the value of the trucks and cargo was .raised at paragraph 29 of the affidavit at p~e 1 71 of the Record ,of Appeal, when the clepoNent moicated that they were not all owed by the 1 11t Appellanti who is their employer ... Their value w~s way too high compared to the putported claims by 01e Respondent. 7. 0 RESPONDENTS' ARGUMENTS 1N OPPOSITION 7 l The 11i~ to 167th Respondents filed. the1t' Heads of Arguments on 21 st December 2022, We have not repr<>du~ed these Argument~ for the reaso11 that will become appa:ren t in the latter part of this judgment. 8 Q SEARING OF THE APPEAL 8 . l The appeal was heard on 17th January 2023. ~rhe partie$ werf; all represented by counsel as shown eru-1ier. 8 .2 The Court was informed that 5 parues hadj-oined th.e App€al ~~ {nterveriors. Their cou11sel were placed on r-ecord. Counsel for tbe 1st a.nd Qm1 lntervet10-r- notified the Court that their clients had beenjoined to the action soroetin1e in August ·2022 but that the purpose for which his clients had joined was no ionger 11ecessa1y~ Counsel therefore applied for the removal Clf the 11.i and 2i"cl Intervenors from the appeal in accordance with. Otct.r 15 Rule 6 of' the Rules ot tbe Supreme Co,1tt, White Book f 1999 Edition} There being no o bjecti011 fro:rn the- parties, the Court ordeved tbe removal of the 1st and .2 nd lntervenors frorr1 the apPeal 8 .3 Counsel for the Appellant relied on the Heads of Arguments filed on 6ltt July 2022 and informed the Court that the Appellant was abandoning ground ,3 of the appeal 8 .4 He briefly augmented the arguments by relying on the case of First National Bank iambia Limited v -Chismani In,restments Limlted5 and ~ubntitted tbat i11 that case, this Court held that: ttn. granting a. stay of execution of a consent order or carisen.t Jli.dgment the- learned ju.dge ·ought to preview the cause of action. in the. staternent of cl(lim to ascertain whether [t; has prospects of success at 'triaC 8 . 5, Counsel fop the Appellant argued that m the ptesen.t ease j ther~ were no particulars of fraud :in the statement of claim for the Cour ~ to have pr-0perly aseertained whether there was fr.ai.,.1d and who had perpetrated it. ·the Courf-$ atten tion was drawn ta pages 19 to 24 of the aecot'd of Appeal. Counsel sub. Iibtted that tl1e grievance of the Responde11ts was one €If an in-h ouse 1ssue between lawyer and client and not of fraud as alleged. 8 .6 Counsel further -submitted that Mes srs Legal Nd Board had a.utho:dty to :represent a!l the 168 Re~pondehts at the time that the Consent Order was entered-. a,s they had n ever withdn ;l\\rn their rep1·ese.ntation in accordance w:ith Oider 6·7 , Rule 6 qf l( ang 1ombe and 'the White Book. Futi'.her, that M.e~s.rs Associates did not p1•ovide a schedule of the names or partie s that they purported to l'e_t:,tesentr despite a. request having been m ade to them as show 11. at pages 185 of the Reca.ed of Appeal. 8►7 Counsel for the Appellant f1.trther drew the Court•-s attention to the ,w"fidavit filed by Messrs Legal Aid Board shown a.t pages 238 to 265 of the Record of Appeal and $Ubmittecl that there was no ba sis for the Court below to have stayed the Consent order. He urged this Court to discharge the R\lling of the lower Court of 2]. 51 Aplil 2022, 8 ,8 On the question of costs, counsel stated that he was co11vers~u1t with the pt .. ovisions of Ru1e 44 of U1e Industxial and . Labour fl5 Relations Act and decided cases that, ea,ch party must bear thefr own costs ill cases that etna.1.1.ate from the Industrial Relations Division .. Fi11aliy1 counsel lan1er1ted that the Appellant had not been served v.ith Heads of At'guxnent by the 168 Respondents. 8.9 Counsel for the Respo11d011ts argi.1ed that he had filed their Heads of Argument Gn 2161 December 2022 but d[d not have evider1ce of service .of the .sa.n:1.e 011 the Appellant's Coutisel. Counsel for the Appellant vehem.ently opposed the Respondent's relying on th~ said Heads of Argumemt as they had nt>t been setved with the sarne . He also contended that the -said Argttme11ts did not comply with the provisio11 s of Otder 13 Rid~ 3 of the Court of Appeal Rules and the judgment of this Court 1n Raphael CbJsupa v Af'ric::,an Banking Corporation Zambia Lhnited6 where this Court held that Argu1nents filed without leave should be expunged from the record and that a party is automaticaUy disqualified from being hea.t•d viva, voce1 He urged us to enforce the Rules of the· Court and expunge the Respondenes H'eads of Argu1nent filed out of time and without leav~ of this Court. 8, IO Counsel for the Respondentsi Mr Si. Iliukonda argued that :the Rules of the Court of Appeal are instructive and permit a party to file its Heads of Arguments not less than 14 days before the hearing of the Appeal Acco.rding to cot1nsel1 since they had filed )26 their Argurnents on 21 ~t December 2022.i they were still within the time pt-:escdbed by Tbe Court of Appeal Jlulesj 2016" 8.11 On the isstte of 1-1on-~~rv1ce of the Arguments l)pon the Appella11t's counselj Mr. Sh:nukonda argued that this was merely a proce-dural teohnicality and if they had not served them 1 the . Respondents ought to be given time to serve the documents on the Appellant. He cited Article 1. l8t2He) of the Cc>.nstitution of Zambia and argued that accordin.g to this constitutional provtsmn, which is supremei justice is to be dispensed W1tho11t undue regard to procedural technicalities. He also argued that there would be no pr,ejudice caused to the Appellant by allow:,ng the Respondents' Heads o.f Atgutnent; as the former could be given sufficient tilne to review the :same, He ueged the Court to grant w.1. adjournment of the 1natter - .12 The Appellant's counsel vehemently opposed the application for an adjourt1tnent. He also submitted that the Supreme Court has pronounced emphatically on the pu.rpo se of t:he Rules of Court~ being the orderly administration of just1ce and that those who ignore them should face the c.anseguences. He highlighted that in accordance with the Court of Appeal RulesJ the Respondents were. to file their Heads of Argument within 30 days from the date of reoeipt of the Record of Appeal ,and Heads of Argument. He indicated that the Respondents were senred with the requisite docuo1entatton on 27t h July 2022 and the 30 d&ys- )1:1 period for filing the domime1its had lapsed witho·ut the Respo11detits ' counsel filing th.e necessa.ey docu1nents. He urged the Court to expunge the docun1ent!::i" from the Record and disqualify the Respondents fro.m making any oral arguments into CQ\Ut~ 8.13 Vie considexed the applk:ation by counsel for the AppeUMt to expunge from the recOt'd the 1s, -argume11ts filed on 21 s,. December- 2022 011 the ground that they to 1671..h Reijpotidert.ts' were filed late We stated that Order 1.0 Rule 9 fl) ofth~ Court of Appeal Rules provides 1;h-at the Respondent shall file their Meads of Argument within 30 days upon receiving tb.e record of appeal and Appellant's Heads 0f Argument. Having found that the Record of Appeal was served on the Respondents on '27ll1 July 2022 1 the Respondents • argttme11t$Qught to have been filed not lc\ter than 21'3t AugL1st 2022. They wex·e only filed on 21 st December 2022, ~bout 4 m·onths latex·. and without ]eave of this Cot1rt. We found that this ,vas an irregt1larity. 8 . 14 We ordered that the 1st to 167th Respondents~ Heads of Argument be expunged from the 1.-ecord, We fhrther ordered that tn hne with previous decisions. the Respondents' coun 1sel would not be permitted to make oral arguments- on a.cco'L1nt of their failure to con1ply with the Rules of the- Court .. We aJso condemned counsel for attempting to mislead the Court on the Rules and arguing that their ,argu1nents were filed on thne. J213 9.0 DECISION OF THIS COUJIT 9.1 We have carefully considered the evidence on rec;:ord1 the -ruling sought to be impugned and the arguments oft.he .respective parties.. There- were 3 grounds of appeal filed 1n -tlus appeal However, the Appetlant~s counsel abandoned the third ground. We will begin by addressing ·ground '2 and conclude witn ground 1. 9 .2 The issue that ru•ises in the 2nd gro1J.rtd of appeal i s whether the learned ttial Judge should have granted a stay of execution of the Con~ent Order o:f 1 Q,;h March '2022 ni. the circu1nstQllces of this case. The Appdlants contend th.at the, trial Court e1Ted in confirming the ex-parte order o.f stay in 1ts. ruling of 219 c April 2022 without considedt'lg all the issues taised before it, particularly~ the 1.ssue of .abuse of Court process ancho1·ed ou multiplicity of actions by the Respondents . 9 .3 In addressing this ground of appeal> we begin by exan1inmg the Record <'. Jf Appeal befo~e us. The earlier part of this Judgment confirrps the backgi·ound of the matters in contention as reflected u1 the Record before us. Of interest is the fact that the Consent Order of" lQtli March 2022 that gave rise to the applica.tio:n for stay of e.ltecution i11. the Co1ut below was endorsed and executed by Banda, J under Cause COMP NO. fRD -LK/684 /2021 . 9 ,4 The summons to stay execution of the said Oo11$ent Order appears to have been filed 011 l l tt-i or 17th March 2022 under Ca,use, COl\iIP NO. IRCLK/204/202-2. What appears to be the affidavit Ln ~upport of the said summons was filed under s different cause n-urnber beirtg COMP NO IRCLK/684 /2021, ·Toe parties in the two cau$e~: are- the same. 'The s-ummons are shown at page 166 of the Record of Appeal and the affidavit hl support is at pages 1 74 to 177 of the- Record of Appeal, 9 .5 Further> the ev1de11ce on record shows two different sets f)f affidavits .filed in opposition to the sutnmons for stay of execution of Consent Order, a,e shown at pages 167 to 173 and pages 238 to 250 of the ROA. These. were both filed into Court under cause n1.tmber 2022/HP/0408 on 30th March and 31 st March Jiespecti:vely yet also bearing the narnes of the same parties. The ex-parte Order of stay of exe.cution was issued by Mwansa,. J under cause No, 2022/HP/0408 (page 160 of the ROA) and the Ruling of Mwansa. J cortfit.1ning the ex-parte 01•der was delivered under cause COMP NO·. IRCLK/204/2022, 9.6, We must add that the dates 011 the sun1mons and affidavits filed in March 2022 are not perfectly legible a.nd we have had to speculate- to make sen$e of the events as they might have unfolded in the Court belCi>W. 9 . 7 Having said the foregoing~ we al.$0 note that the Court below was fully aware of the posS1ibility of multiplicity of ap1,~1ications a:s p~agr.aph 13 of the affidavit in opposition of the application in the Court below~ shown at page 169 of the Recoed of AppealJ clearly raised the ~sue 9 .8 The trial Judge recognized this aspect in hi.a ruling of 2 l!it Aprtl 2022 althotigh he does not a.dc:hess his· mind to the q"Uest10n of the purported mu ltiplicity of -actions or applications~ he gave a diteetive in the concluding sentence of the Ruling, shown at page 16 of the Record of Appeal; for consolidation of cause COMP :NO. IRC-LK/204/2022 with COMP/IRD-LK/684/2021 to be heard by Banda, J. 9.9 In the case of Ketvln Hang'andu and Company Ca Firmt v Web by Mulublsba 7 the Supreme Court held that "Once ii ffl(ltter ls- before ~11rt in Wh«i•ve-r plac~ lf th«t process-fs properly .bef-ore it, tl1e coi,1rt shou Id be t(le:. soJ.e court to a.4ftidicate aU tssue.s tnvalved~ all biteresUd part'ili?s have an ob1lgaflon te> bn11;9 all .issues -lit that matter before thtit p"rtfcu lttr court. Forum shappttag i·.s abuse of process -Wilk. It Is unacceptable. "' 9.1 O The apex Court was ve1;1 clear in that decision and numerous decisions as to its positio11 011 abuse of Court process by duplicity of actio.ns and applications. The dkective of the Supreme Court 1n the. above authority is una.:u,.biguous that once a 111.atter is before a court, that court s hould be- the only court to adjudicate• issues invoiv-ed in that matter. The Cmlrt wa.s 1nstructi11e that parties must b1·ing all issues in that matter be-fore the srune court. 9.11 In the "ppe~ befo~e us~ it is evident that the original matter before the lo:w-er Court in which a Con.~ent Order ,vas in contention was commeoced in. the" lndustnal Relations Division of the High Court Unde.r COMP/IRD-LK/684/2021 before Ba.11daJ J . A Consent Order was executed between d1e parties on 10th March 2022, However, the appfiaation for a stay of execution of the Consent Order1 appears to have been brought under a separate action either 202'.2 /HP /0408 and / or COMP NO. IRC-LK/204 /2022 and before Mwansa, J. The said learned Judge proceeded to entertain the applic.atlon initially ex-parte; and granted an ex .• parte order on 21st March 2022 and then inter-partes 1 and issued a Ruling on 21 st April 2022, which is the subject of this appeal. By those dedsionsl the ]earned trial Judge stayed a decision (Con sent Order 0f 10th Ma..rch 2022) of l1is bt·other Banda, J un.der a separate .action. contrary to the Kelv~n 1-iartgandu case. 9. 12 The oircumstance6 urtder which the applicaliott for a stay of execution of the Consent Order was taken before a different Judge of the Court under a separate action are unexplai11.able J32 9 .. 13 lt is also clear that the leat1'led trial Judge in the Court below erred by disreg~ding the issue that was raised about multiplicity of applications, Given the foregoing account of even.ts in the Court below. we are of the firrn view that the triaJ Judge would not have dealt with the application before him had he addressed hi~ mind to the 1ssl.i-e raised of 1nultipl1c1ty of ~ction s / applications. 9. 14 The learned Judge ought to have .referred the application for a stay of execution of the Consent Order to hit3 brother Banda, J for determination> before who1n the case originated, and the Conse111 Order w.as aro-se. In. the absence of an expJF,Jnation as to why the application was being brought to a different Court under a different cause number, it was inappropriate for the Judge to have entertained the application. Judges of the High Co-urt have equal jurisdiction andi then'~fore, it was improper for Judge Mwa,nsa to have granted a stay of execution of a Consent Order issued by Banda, J who was presiding at the time. For the said reasons! the second ground of appeal is successful. 9 15 We ti.ow \Vish to address the issue of the format. of the ruling of the triai CoLu·t delivered 1n the Court below .as contended ir'l gr.o~nd 1 of the appeal he1~ein, It i:s clear that the ruling of the trial Court appealed again.st lacks structure and coherence The Supreme Court has guided in, the case of zatnbfa Telecommunications Company Limited v Aaron Mwe.ene l33 Mulwanda and others on the :format and elements expect;ed to be cot1tained and captured in decisiorts of Courts. 9 . 16 In the above case:o the eletnents of a judgment WeJ"e o~tlined as bein-g; ·"tut iAtroduction setting forth the na.tttre oJ the case:, cm outline of the relsi,ant 1aw appUcGbte to the case to be resolwd, an cict:uQ:l app,lication of relevant lct. W· to the facts of the case, the remedies or remed,y sought in the case ,a,ul u ltfmately the ,order .af the Court." 9 . 17 This position has been affirmed in severalauthonties before and after the aforesaid decisiot1 and it 1s a generally accepted practice even {n Courts beyond this jurism.ction. It is expected that in line with the above decision• a ruling will cotnprise of the said element~ or :items. 9 . 18 Given the aforesa1d~ and a,. review of the Rulin.g of the Court of 21st April 2022J we agree with counsel for the Appellants that the Ruling did not 1neet the benchmark of \vhat is e:xpected. Ground 1 of t.he appeal is also successful LO O CONCLUSION 10. l Given that both gro1..1nds 1 and 2 of the appeal are successful, the Ruling of 21st Apri1 2022 w.riich stays execution of the eon$ent 01'de1· is heFeby set aside. J.:l>I 10.2 We also set aside the order for consolidation of actions as this was made without application or hearing of the parties or consideration of the issues in the matte:r. 10,2 Given that this case originates from the Industrial Relation$ Division, we 01•der- each party to bear their own costs of this appeal~ ~ ~ -t-"'6-"r-Y _ C.l(, Mabngu COURT OF APPEAL JUDGE _ P . C. M .. Ngu.lube COURT OF APPEAL JUDGE ~ .r- Nisi;arpe-Pirl -- COURT OF APPEAL JUDGE