Kabwe (Suing as administratrix of the Estate of the late Charles Kabwe) v Attorney General (Appeal 158 of 2017) [2018] ZMCA 394 (31 July 2018)

JI IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 158/2017 HOLDEN AT NDOLA BETWEEN: JANET NAMUKOLO MASHANDA KABWE PELLANT (Suing as administratratrix of the Of the Late Charles Kabwe) AND CML REGISTRY 2 ATTORNEY—GENERAL ESPONDENT CORAM: CHASHI, SIAVWAPA, NGULUBE, JJA On 21st February, 2018 and 31st July 2018 FOR THE APPELLANT: N. Mbuyi, Messrs Ituna Partners FOR THE RESPONDENT: D. M. Chileshe, Attorney-General’s Chambers JUDGMENT NGULUBE JA, delivered the Judgment of the Court Cases referred to: 1. Zambia Consolidated Copper Mines vs. John David Chileshe, SCZ Judgment Number 21 of 2001 2. Danial Mwale vs. Ngolomole MtongafSued as administrator of the Estate of the Late Siwanamutenge Kapuma Mtonga) and Attorney-General, SCZ Judgment Number 25 of 2015 3. William David Carlisle vs. E. T. Harvey Limited (1985) ZR 17 Legislation referred to: 1. The Law ReformfLimitation of Actions) Act, Chapter 72 of the Laws of Zambia. 2. The Limitation Act, 1939 J2 This is an appeal against the Ruling of the High Court delivered on 21st February, 2017. The appellant, being dissatisfied with the said Ruling lodged this appeal. The background of the case is that, on 23rd August, 2014, the appellant commenced an action by way of Writ of Summons and Statement of Claim seeking the following reliefs- 1. That he be reinstated and paid salary arrears from 2007 when he was removed from the Government payroll. 2. That he be retired at the age of 55 years as he was on 13th January, 2013, and that he be paid his full pension and emoluments. 3. That he be refunded all the rentals from the time that he was evicted from the Government house in 2002 to the date of retirement. 4. That he be paid the maximum number of accrued annual leave days as authorised by the law. 5. That he be paid repatriation allowance as prescribed by the law. 6. Damages for eviction, inconvenience and mental distress. 7. Damages for unlawful distress. 8. Special damages as pleaded. J3 9. Interest 10. Costs of and incidental to the proceedings The respondent in the lower court made an application before the Deputy Registrar to dismiss the matter on the grounds of irregularity that the matter is statute barred. However, on 12th June, 2015, the Deputy Registrar ruled that the Plaintiff was not affected by the provisions of Section 2 of The Law Reform (Limitation of Actions) Act1, because the time started running in 2010. The Deputy Registrar allowed the plaintiff’s action to proceed so that the matter could be determined on the merits. The respondent appealed to a Judge in chambers, who ruled that, the matter was statute barred and that, she had no jurisdiction to hear the proceedings in the matter as the cause of action arose in 2002. Dissatisfied with the Ruling, the appellant lodged this appeal, advancing one ground of appeal­ in the said ground, the appellant contended that the learned Judge misdirected herself in law and fact in holding that the plaintiff’s cause of action arose in 2002 when his family was J4 evicted from the Government house and that as such,the cause of action was statute barred. In his Statement of Claim the plaintiff stated that the letter of dismissal that was written to him dated 19th November, 2007 was rescinded and that, he was then placed on early normal retirement on 18th February, 2010. The appellant contended that the time started running from 2010. The appellant’s Counsel argued that, the appellant engaged in negotiations with Zambia Police and the Ministry of Justice prior to this action being commenced. The appellant exhibited correspondence to this effect in his affidavit in opposition to the defendant’s application to dismiss the matter on the grounds that it is statute barred. It was argued that, as a result of the negotiations between the appellant and the office of the Inspector-General of Police, the appellant was placed on early retirement as evidenced by the letter dated 18th February, 2010. Counsel contended that, it was agreed that, the appellant was not dismissed but was placed on early retirement in 2010, which should have been followed by the payment of his retirement package and terminal benefits. J5 It was contended that, the appellant was retired on 18th February, 2010 as the letter of early retirement showed. The appellant then commenced this action because he was not paid his terminal benefits after being placed on early retirement on 18th February, 2010. Counsel for the appellant referred to Section 26 of The Limitation Act, 19392 which provides that- “where, in the case of any action for which a period of limitation is prescribed by this Act either- (a) the action is based upon the fraud of the Defendant or his agent or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such persons as aforesaid, or (c) the action for relief from the consequences of a mistake The period of limitation shall not begin to run until the Plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it.... ” It was submitted that as much as possible, matters should be determined on their merits so that the ends of justice are met. It J6 was accordingly submitted that, the lower court misdirected itself in ruling that the matter is statute barred. Counsel for the appellant prayed that, the appeal be allowed so that that the matter can be heard and determined on the merits. The respondent opposed the application and filed its heads of argument in response to the sole ground of appeal and contended that the learned trial Judge was on firm ground when she dismissed the appellant’s claim for being statute barred. The respondent submitted that the issues that this court must deal with are whether negotiations between parties to a dispute arrest time from running on when a claim should be instituted and secondly whether time for the claims brought by the appellant in the court below started running after the issuance of the letter of early retirement dated 18th February,2010. The respondent cited the case of Zambia Consolidated Copper Mines vs. John David Chileshe1, where the court held that negotiations between parties do not stop the time from running. The respondent further referred to Halsbury’s Laws of England, 4th Edition Volume 28, Paragraph 608 at page 267 which states that- J7 “The mere fact that negotiations have taken place between a claimant and a person against who a claim is made does not debar the defendant from pleading a Statute of limitation even through the negotiations may have led to delay and caused the claimant not to bring his action until the statutory period had passed. It seems however, that the defendant will be debarred from setting up the statute if during the negotiations, he has entered into an agreement for good consideration not to do so, or if he has represented the desires that the plaintiff should delay proceedings and that the plaintiff will not be prejudiced by the delay, and the plaintiff has acted on the faith of his representation. ” The respondent submitted that, the import of the above provisions is that, unless agreed by the parties, negotiations between parties do not arrest time for the commencement of an action. The respondent further contended that, the letter of early retirement dated 18th February, 2010 does not speak to the claims that the appellant made in his statement of claim. It was submitted that, the appellant’s claims relate to events that occurred between 2002,the time his family was evicted from the J8 Government house and 2007 when he was removed from the payroll. It was submitted that time stated running at the time when the breaches occurred and that the claims are statute barred because they are caught up with the provisions of Section 2(1)(a) of The Limitation Act2. The respondent urged the court to disregard Section 26 of The Limitation Act2, which the appellant’s counsel cited as it has no relevance to this case. The respondent cited the case of Daniel Mwale vs. Ngolomole Mtonga (Sued as administrator of the Estate of the Late Siwanamutenge Kapuma Mtonga) and Attorney - General2 where the Supreme Court gave guidance on this issue when it held that - “The statute of limitation when raised brings forth a serious legal question as to whether the court has jurisdiction to entertain the action before it, given that it was brought outside the Limitation period. ” The respondent prayed that the appeal be dismissed with costs to the respondent. At the hearing of the appeal, Mr Chileshe the respondent Counsel, submitted that the respondent seeks the protection of J9 the court for the events that took place in 2002. He further submitted that, the respondent is liable for the events that took place upon retirement as all rights that accrued from the time of retirement are not disputed. Counsel submitted that the appellant had not raised sufficient grounds to warrant the setting aside of the provisions of the Statute of Limitations. He prayed that the appeal be dismissed with costs. We have considered the heads of argument, the submissons by Counsel and the record of appeal. We reiterate that, an appellate court shall not interfere with a trial Judge’s findings of fact, unless they are perverse, arrived at as a result of a misapprehension of the facts or the findings are not supported by the evidence on record. In this matter, the lower court found that the appellant’s cause of action arose on 12th February, 2002 when his family was evicted from the Government house and that this is when he should have commenced litigation. The court accordingly held that the appellant’s cause of action was statute barred and that it had no jurisdiction to continue proceedings in the matter. Section 2 (l)(a) of The Limitation Act2, 1939 provides that - J10 “the following action shall not be brought after the expiration of six years from the date on which the cause of action arose, that is to say - (a) actions founded on simple contract.” In the case of William David Carlisle Wise vs. E. T. Hervey Limited3, the court stated that - “a cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other upon which he can establish a right or entitlement to a judgment in his favour against another.” The appellant’s claims as per his statement of claim in the lower court are that he be reinstated and paid salary arrears effective 2007 when his name was removed from the Government payroll and - (a) That he be retired at the age of 55 years as he was on 13th January, 2013 and that he be paid his full pension and emoluments. (b) That he be refunded all the rentals from the time he was evicted from the Government house in 2002. -Ill (c) That he be paid the maximum number of accrued leave days as authorised by the law (d) That he be paid repatriation as prescribed by the law (e) That he be paid damages for eviction inconvenience and mental distress. (f) That he be paid damages for unlawful distress (g) Special damages. (h) With interest and costs. The evidence on record is that, the appellant was placed on early normal retirement by a letter dated 18th February, 2010. We therefore form the view that on the issue of retirement, the appellant’s cause of action started running from 18th February, 2010. As such, when he commenced the action in the lower court on 22nd August, 2014, the issues surrounding his retirement terminal benefits and package were not statute b ar re d. Further, the issue relating to his repatriation allowance was not statute barred as this is tied to his retirement. We form the view that since the cause of action commenced in February, 2010, then issues relating to his salary arrears effective 2007 were statute barred and could not be entertained by the court in 2014. J12 Further, the issues relating to the rentals and his eviction from the Government house in 2002 are also statute barred and the lower court had no jurisdiction to hear them in 2014. Issues relating to the appellant’s leave days are not statute barred and need to be calculated for the appellant to be paid accordingly. We are however of the view that the appellant is not entitled to damages for eviction, inconvenience and mental distress. The net result is that the appellant’s action succeeds in part; he was retired on 18th of February, 2010. He is entitled to his pension and retirement benefits, leave days as well as repatriation allowance. This matter is accordingly sent back to the High Court for the determination of the quantum of the appellant’s pension, terminal benefits, leave days and repatriation allowance. Costs are awarded to the appellant, to be taxed in default of agreeme Court and in the court below. J. CHASHI COURT OF APPEAL JUDGE J. M. SIAVWAPA P. C. M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE