Sinamuwi v Livingstone City Council (Appeal No. 75/2022) [2023] ZMCA 188 (31 July 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 75/2022 {Civil Jurisdiction) APPELLANT LIVINGSTONE CITY COUNCIL RESPONDENT Coram: Chashi, Majula and Patel, JJA On 14th June 2023 and 31 st July, 2023 For the Appellant : Ms. N. Chishimba of MAK Partners For the Respondent: Mr. H. K Siwanda- In-House Counsel JUDGMENT MAJULA, JA delivered the Judgment of the Court. Cases referred to: 1. Sanat Limited vs Shailesh Kumar Suryakani Amin CAZ Appeal No. 137/2019. 2. !tuna Partners !JS Zambia Open UnirJersity SCZ/8/128/2008. 3. Wilson Masauso Zulu vs Avondale Housing Project Limited SCZ/8/ 154/2009. 4. Musukwa & Mulevu vs Chibanda & Registrar of Lands and Deeds and the Attorney-General (2014) ZMSC 115. 5. Rahim Obaid and Others vs The People (1977) ZR 160. 6. Muster vs Cox(1884-1885) 10AC680. J2 Legislation & other authorities referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Rules of The Supreme Court of England, (White Book), 1999 edition 3. Bryan A. Gamer, Blacks Law Dictionary, Eighth Edition (United States of America West Publishing Company, 2004). 1.0 Introduction 1.1 The appeal is against a ruling of the High Court delivered by Dr. Justice W. S. Mwenda on 24th November, 2021. The learned Judge found in favour of the Respondent and dismissed the Appellant's complaint. 2.0 Background 2.1 The facts of this case are that the Appellant was an employee of the Respondent. Upon his retirement, the appellant took the Respondent to court for his retirement benefits concerning what was due to him. The matter was eventually settled through a mediation settlement on 13th December, 2003 under cause number 163/2003. Furthermore, on 12th February, 2019, the Parties executed a consent Order to refer the matter to a District Registrar for determination of amounts that were paid and ·what remained outstanding. 2.2 The District Registrar heard the matter and delivered a judgment on assessment on 14th May, 2020. On account of scanty evidence, the District Registrar directed the parties to J3 calculate the full amount that was due to the appellant as agreed to in the mediation settlement. 2.3 The Parties attempted to agree on the outstanding amount payable to the appellant but failed, hence the application to the High Court Judge for the matter to revert to the District Registrar for assessment. When the matter crune up before the learned Judge, she set the matter for trial and notices of hearing were accordingly issued returnable on 22nd November, 2011. However, before trial, the respondent raised preliminary issues pursuant to Order 14A Rule 1 and Order 33 Rule 3 of the Rules of the Supreme Court of England 1999 edition. The question that was posed for determination before the lower court was whether the matter was properly before her in light of the consent Order dated 12Lh February, 2019 which had not been set aside. 3.0 The decision of the lower court 3.1 The lower court analysed the evidence that was before her and was of the view that it did not have jurisdiction to entertain the matter as it was referred to mediation by consent of the parties and the consent Order had not been set aside. The Judge further held that the District Registrar had become .functus officio after it rendered a Judgment on assessment of damages. Based on the foregoing, the lower court found merit in the preliminary objections and dismissed the matter for want of jurisdiction. J4 4.0 Grounds of appeal 4.1 The Appellant \Vas unhappy \•.rith the ruling hence the appeal to this Court, fronting three grounds of appeal set out as follows: "1. The learned court below erred in law and fact when ir dism.issed the matter whilst the actual relief soughr by the appellanr therein was for the matter to be referred lo assessment. 2. The learned court below erred in both law and fact when it dismissed the matter for want of jurisdiction when there was a consent Order referring the parties to assessment. 3. The learned court below erred in law and fact when it held that the Deputy Registrar had no jurisdiction to farther entertain the molter when the matter had not been fully determined as per the consent Order. " 5.0 Appellant's arguments 5.1 The Appellant filed their heads of arguments on g:h April, 2022 wherein all the grounds \Vere argued together. The gist of the Appellant's submission is that the lower court erred when it held that the Deputy Registrar was fanctus officio in view of the fact that the Deputy Registrar had not discharged his onus to assess the quantum payable to the appellant in accordance vdth the consent Order. ,JS 5.2 The case of Sanat Limited vs Shailesh Kumar Suryakant Amin1 was called in aid where the court quoted a definition of fanctu.s officio by Black's Law Dictionary which states as follows: "Without farther authority or legal competence because the duties and junctions of the original com.mission have been fully accomplished." The Court went further to hold that: "A matter must be heard and determ.ined on the m.erits for a court to becom.e fanctu.s offici.o." 5.3 Another Supreme Court case of ltuna Partners vs Zambia Open Universityl was relied on. 5.4 In light of the authorities cited, it was contended that the Deputy Registrar cannot be said to have become fanctu.s officio as he did not assess what was due to the appellant. 5.5 Counsel pointed out that for a court to be said to have become fanctu.s officio, it must have fully determined all issues in controversy between the parties. For this proposition, we were referred to the cases of Wilson Masauso Zulu vs Avondale Housing Project Limited3 and Musukwa & Mulevu vs Chtbanda & Registrar of Lands and Deeds and the Attorney-General. 4 J6 5.6 Counsel submitted that the above guidance by the Supreme Court is what prompted the appellant to apply before the Judge to have the matter fully determined by assessing the amounts payable. Counsel observed that the application was made to the Judge as required by the High Court Rules. 5.7 On this premise, Counsel for the appellant implored the court to allow the appeal and refer the matter back to the District Registrar for assessment of damages in line with the consent Order. 6.0 Respondents Arguments 6.1 The Respondent's counsel filed heads of argument on 18th July 2022. The thrust of Mr. Siwanda's submission was that the lower court was on firm ground when it dismissed the matter for want of jurisdiction. This is in view of the fact that the case was before Judge Mwansa and was concluded by way of a consent Order. The matter was then referred to the District Registrar for assessment of damages. 6.2 Counsel contended that bringing the same case before another Judge to make a decision would amount to the Judge reviewing the decision of another Judge. On the issue of High Court Judges having equal jurisdiction Counsel referred us to section 4 of the High Court Act which enacts as follows; "4. Subject to any express statutory provision to the contrary, all the Judges shall have and may exercise, in all respects, equal power, authority and jurisdiction, and, J7 subject as aforesaid, any Judge may exercise all or any part of the jurisdiction by this Act or otherwise vested in the Court, and, for such purpose, shall be and Jann a Court." 6.3 Our attention was also drawn to the case of Rahim Obaid and others vs The People5 where the provision of section 4 of the High Court Act was affirmed by the Court. Counsel for the respondent went on to argue that the same matter could not be referred to the same Deputy Registrar for assessment because he had become functus officio after delivering a ruling on Assessment. 6.4 In counsel's view the only proper way to challenge the consent Order was to commence a fresh action founded on allegations of either fraud, mistake or misrepresentation. As authority for this proposition, counsel called in aid the case of Muster vs Cox.6 where the court held: "The Court has power to alter the consent if the consent has been obtained by fraud ... " 6.5 Furthermore counsel for the Respondent submitted that since the main matter was resolved by way of mediation, no appeal can lie against a registered mediation settlement. To reinforce his point, Mr. Siwanda referred us to Order XXXIV Rule 14 of the High Court Rules. J8 6.6 He argued further that although the High Court has unlimited jurisdiction, this does not however mean that its jurisdiction is not limitless as it must operate ·within the law. 6.7 In winding up his submission, Mr. Siwanda implored us to dismiss the appeal with costs. 7.0 Hearing of the Appeal 7.1 When the matter came up for hearing of the appeal, both counsel sought to rely on the record and the heads of arguments that were filed. 8.0 Decision of the court 8.1 We have carefully scrutinized the record and the submissions of counsel as well the impugned ruling. Although the appellant has raised three grounds of appeal, we shall deal with them globally as they are intertwined. The main issue for determination is whether the court was in order to dismiss the matter for w·ant of jurisdiction. 8.2 Stemming from what we have been able to glean from the record, it is not in dispute that the parties signed a consent Order following a mediation settlement in 2003. The matter went before the District Registrar for assessment of what was due io the appellant. The Deputy Registrar heard the matter and delivered a judgment on assessment on 14th May 2020 (see pages 29 to 31 of the record). The net effect of the Judgment is that the Parties ,l\lere sent off to calculate the J9 amounts that were due to the appellant. More pointedly, the Deputy Registrar stated as follows: "To be in the clear, I therefore order that the full amount due to the complainant be properly calculated by the parties including the underpayments as agreed in the mediation settlement, thereafter deduct what was paid to the complainant with proof of payment and receipt of payment. If there will be a balance due let it be paid to the complainant as there is no dispute he was paid Kl 11,478.17. Costs are awarded to the plaintiff to be taxed in default of agreement." 8.3 In our considered view, there being a Judgment on assessment, it means that the matter had been disposed of albeit not to the satisfaction of the parties. After the ,Judgment had been delivered by the Deputy Registrar, the court had become functus officio because it had conclusively determined the matter that was before it. 8.4 The Judge in the court below in our view cannot be faulted in arriving at her decision that the District Registrar had become functus officio after rendering her decision on assessment. We are alive to the fact that as an appellate court, we can only reverse findings of fact made by a lov-1er court if they were either perverse or made in the absence of relevant evidence or upon a misapprehension of facts. This position \Vas better expressed by the apex court in the celebrated case of Masauso Zulu vs Avondale Housing Project Limited' \vherein it \Vas held that: . ' JlO "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts." 8.5 In this instance the finding being that there was already a Judgment on assessment delivered. That being the case the lower court lacked jurisdiction. The avenue available to the Appellant was to appeal against the Judgment of the District Registrar at the time it was delivered. The court below was therefore on ten-a finna in declining jurisdiction and dismissing it accordingly. 9.0 Conclusion 9.1 In light of the foregoing, we find no merit in all three grounds of appeal and \Ve uphold the decision of the lower court. ~ 9. 2 Each Party shall bear their o J. hashi COURT OF APPEAL JUDGE B. M. ajula COURT OF APPEAL JUDGE ....... -~-~./.~~-~ .............. .. A. N. Patel SC COURT OF APPEAL JUDGE