Joseph Wapabeti v Health Professions Council of Zambia (CAZ/08/397/2021) [2022] ZMCA 147 (10 March 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/08/397/2021 BETWEEN: JOSEPH WAPABETI AND Appellant HEALTH PROFESSIONS COUNCIL OF ZAMBIA Respondent Coram: Hon. Lady Justice N. A Sharpe-Phiri in Chambers on 10th March 2022 For the Appellant: For the Respondent: Mr. G. Tembo of Messrs James & Doris Legal Practitioners Mr. T. Silomba of Messrs Equitas Legal Practitioners RULING Cases refen-ed to: Mukumbuta Mukumbuta Sam Mukamamba Kweleka Mubita Mooto Mooto And Kandumba Munganga V Nkwilimba Choobana Lubinda Richard Mbikusita Munyinda Rosalyn Mukelabai and Mongu Meat Corporation Ltd. Legislation refe1Ted to: Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This is a Ruling on an application filed on 24th February 2022 by the Appellant's Counsel, Mr. George Tembo for an order to consolidate actions CAZ/08/397/2021 and CAZ/08/406/2021. The Summons was brought pursuant to Order XIII Rule 11 of the Court of Appeal Rules, 2016. Rl An affidavit in support of the application of even date was filed and deposed to by the Appellant's Counsel, who stated that the Applicant commenced the matters that were subject of Appeal under Cause Nos. CAZ/08/397/202 1 and CAZ/08/406/202 1 at different times, before the Industrial Relations Division and the Principle Registry of the High Court respectively. That from the Industrial Relations Division, the Applicant claimed for the fo llowing reliefs: i. A declaration that the termination of the Complainant's employment was unlawful, wrongful and/or unfair; u. Payment as damages sums that he would have accrued as income by the Complainant by his employment within the Respondent until the date of retirement; m. Damages for breach of contract; 1v. Damages for mental torture, distress, pain, suffering and anguish inflicted on the Complainant by the Respondent; Interest; v. v,. Any other relief the Court may deem fit; v11. Costs. That from the Principal Registry, the Applicant claimed for the following reliefs: 1. An Order and declaration that the transfer of the Plaintiff by the Defendant was contrary to the contract of employment and thereby breaching the said contract and therefore illegal, null and void ad initio. u. An Order and declaration that the transfer of the Plaintiff from Lusaka to Kasama was a demotion. R2 m. Damages for inconvenience, embarrassment and loss of fringe benefits, and occupational pride. iv. An Injunction restraining the Defendant by itself, its servants or agents or whosoever from transferring the Plaintiff from Lusaka office without proper cause and agreement of the Plaintiff. v. Interest. v1. Any other relief, order or award as the Court may deem fit and equitable in the circumstance; and vu. Costs. Counsel went on to state that following the hearing of the matters, decisions were rendered in the Industrial matter on the 16th day of August 2021 and in the Principal Registry on the 23 rd day of September 2021. That a perusal of the said Judgments showed conflicts of findings of facts and awards therefrom, premised, on which the now two within appeals are based. That the findings and awards of the High Court matters were irreconcilable and that the same must be reconciled by consolidation of appeals for the proper determination of the conflicts between the parties. That this Court was empowered to grant such an application for the proper adjudication of matter and to further avert irreconcilable decisions of the Court. The matter came up for hearing on 7th March 2022, Mr. G. Tembo of Messrs James & Doris Legal Practitioners was present for the Applicant and Mr. Y. Silomba of Messrs Equitas was present for the Respondent. Counsel for the Applicant informed the Court that they relied on the affidavit in support and Skeleton Arguments filed on 24th February 2022 and prayed that their application be granted. R3 There was no opposition from the Respondents. The Court reserved its Ruling in the matter which it now renders herein. I have carefully considered the affidavit on record and the submissions of the Applicant. The application before me is for an order that Appeal Nos. CAZ/08/397 /2021 and CAZ/08/406/2021 be consolidated on grounds that: 1. The dispute subject of both appeals arise from a series of facts that are now subject of irreconcilable findings by different High Court Judges. n. That the determination of the Appeals as one will avert conflicting decisions of the Court. This application was made pursuant to Order XIII Rule 11 of the Rules of the Court of Appeal. The said Rule stipulates that: 11(1) The Court may, on its own motion or on application by a party, consolidate causes or matters on such terms as it may consider just. (2) The Court may for sufficient reason, order two or more appeals to be consolidated on such terms as the Court considers just or may order that the appeal be heard at the same time, or one immediately after the other or may order any of them to be stayed until the determination of any one of the appeals. R4 Counsel submitted that the two Appeal raises similar questions of law and fact and relate to the employment of the Applicant and his subsequent dismissal by the Respondent. He argued that it was apparent from the Judgments now subject to the appeal that the Court below made findings of facts and applied different laws to the dispute which resulted in Judgment in favour of the Applicant on one part, and Judgment in favour of the Respondent in the other matter. Counsel further submitted that before this Court could render its decisions on the appeals, it would invariably be called to consider the finding of facts that are scattered between the appeals and that the Court cannot competently determine the appeals independently. The principle gove1ning consolidation of matters was reaffirmed by the Supreme Cou11 in the case of Mukumbuta Mukumbuta Sam Mukamamba Kweleka Mubita Mooto Mooto And Kandumba Munganga V Nkwilimba Choobana Lubinda Richard Mbikusita Munyinda Rosalyn Mukelabai and Mongu Meat Corporation Ltd which Counsel for the Applicant ably relied on. In that case, the Supreme Court held that: '1. The principle governing consolidation of actions is that common questions of law or facts and rights or relief arising out of the same transaction should be consolidated in one action. 2. The rationale for consolidation is to save costs and avoidance of multiplicity of actions.' RS On the preliminary consideration of the substance of the Application, and perusal of the two appeals which now sit as Appeal No. 34 of 2022 and Appeal No. 289 of 2021 respectively, it is clear that the appeals arise from the same transaction, which is the incident of employment relations that were created by the Respondent with the Applicant. Similiarly, like in the respective decisions of the lower Court, the separate determination of the two appeals may result in conflicting decisions of this Court in a matter that relates to the same parties on issues arising from the same employment relationship transaction, with a potential to bring this Court into conflict with itself. Given the aforesaid considerations. I find that this is a proper case for granting the application. I therefore ORDER and DIRECT that the two appeals namely Appeal No. 34 of 2022 and Appeal No. 289 of 2021 be head and determined together as single Appeal and Cross-appeal before this Court. Each party will bear their own costs Dated at Lusaka this 10th day of March 2022. ~-~ . . Sharpe-Phirli COURTOFAPPEALJUDGE R6