Mamonis Loss Control Service & General Contractors Limited v Gift Mweene and 24 Ors (CAZ APPEAL No. 168 of 2018) [2019] ZMCA 328 (24 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA CAZ APPEAL No. 168 of 2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MAMONIS LOSS CONTROL SERVICE (tl} 2.9 AUG 2019 APPELLANT & GENERAL CONTRACTORS LIMITED ~ o AND GIFT MWEENE & 24 OTHERS RESPONDENTS CORAM : KONDOLO SC, MAKUNGU, CHISHIMBA, JJA on 22n d August 2019 and 29th August 201 7 For the Appellant : Mr. N. Muyatwa of Messrs AKBF & Partners For the 2 nd Respondent : Mr. J. M. Chimembe of Messrs JMC & Associates JUDGMENT KONDO LO SC, JA delivered the Judgment of the Court CASES REFE RRED TO 1. Admark Ltd-v Zambia Revenue Authority ZRA (2006) ZR, 43. 2. Automated Sales Ltd-V- Knowles & Forrester (1962) 3 ALL ER, 27 3. Vangeletos & Others-V-Metro Investments Ltd & Others SCZ/35/2016 4. Crossland Mutinta & Bashir Seedat-V-Donovan Chipanda SCZ/53/2018 5. City Express Li mited v Southern Cross Motors SCZ No. 8/262/2006 6. Daphne Alves- v the Attorney Genera l of Virgin Island Appeal No. BVI, HCV AP, 2011/0065. J2 of 8 7. Zambia Consolidated Copper Mines Limited v Elvis Katyamba And Others (2006) Z. R. 1 LEGISLATION REFERRED TO 1. The Industrial and Labour Relations Act No. 8 of 2008 2 . The Interpretation and General Provisions Act, Chapter 2 , Laws of Zambia This is an appeal against the Judgment of Chisunka J dated 3 1st July, 201 7 in which h e granted various reliefs to the Respondents. The Respondents were employees of the Appellant who had sued, inter alia, for the balan ce of their employment ben efits. After the Parties had closed their cases, the Appellants, in their submissions, argued that the matter s hould be dis missed because it was statute barred. The Court dismissed the submission and stated as follows ; "I dismiss the submission by the Respondent that the claim is stale on account that it was not brought within 90 days. This defence is an afterthought because it was not raised i n the Answer or Pleadings that are on record." Being dissatisfied with the Judgement, the Appellant advanced the following single ground of appeal; 1. The learned trial Judge erred in law and fact in dismissing the Respondents submission, that the claim was stale (Statutory time barred on account that it was not brought within 90 days), on the ground that the defence was an afterthought because it was not raised in the Answer or Pleadings that were on record. At the hearing, both Parties supplem ented their Heads of Argument with viva voce submissions. J3 of8 Learned Counsel for the Appellant submitted that the trial Judge did not provide any authority to support the holding now b eing challen ged. The question of whether the Court can rely on a defence of statutory limitation of time, which is not pleaded but referred to by Counsel in the final submission s, was addressed in the case of Admark Ltd v Zambia Revenue Authority 111 in which the Supreme Court referred to its decision in Automated Sales Ltd v Knowles & Forrester 121 and h eld that a point of law can be raised at any time. In the Adma rk Limited Case (supra) a d efence of statutory limita tion of time conta ined under Sec tion 164 (4) o f the Customs and Excise Act which was not p lead ed was referred to by Counsel in his submissions. The Supreme Court upheld the lower Court's decision that the question whether the action was time barred was a point of law which could be raised at any time. It was submitted by Mr. Muyatwa on behalf of the Appellant that the decision of the trial Judge in this matter flew in the teeth of the cited authority. Mr. Muyatwa further submitted that Section 85 (3) of the Indu strial and Labour Relations Ac t states that complaints under the Act must be brought before the Court within 90 d ays and gives the Court power to extend the time upon a pplication m eaning that if a complaint is not brought within 90 days and no a pplication is m ade for extension of time, the Court's Jurisdiction is ou sted . He cited the cases of Vangele tos & Others v Metro Investments Ltd & Others 13 1 and Crossland Mutint a & Bashir Seedat v Don ova n Chipa nda 14 1 in which th e Supreme Court h eld that the absence of Jurisdiction nullifies whatsoever a Court does. J4 o f 8 In his filed Heads of Argument, Mr. Chimembe on behalf of the Respondents submitted that the Industrial and Labour Relations Act No. 8 of 2008 provides that the 90-day period within which a party can file a complaint before the Court, only begins to run when the administrative remedies are exhausted. He further cited the case of City Express Limited v Southern Cross Motors 151 in which it was held that; "a cause of action accrues on the date of the happening of the event when the claim is rejected." In that regard, it was submitted that notwithstanding the 90-day requirement, the position in this matter was that the dispute was in relation to underpayment of salary, which according to Mr. Chimembe, meant that the 90-day accrual period recurred every month when underpayment occurred. His final argument was that the Appellant had cited and relied on Sections 85 (3) and 108 (2) as they stood in the parent Act before they were amended by Act No.8 of 2008 and for that reason, the Appellant's Heads of argument should be expunged. With regard to the time when the 90-day period started accruing, Mr. Muyatwa responded by pointing out that the administrative process the parties had engaged in, ended after the Labour Commissioner wrote the letter dated 25th July, 2013 and that is when the cause of action accrued. In response to Mr. Chimembe's submission that the Appellants Heads of argument be expunged for relying on repealed law, Mr. Muyatwa submitted that Section 6 of the Interpretation and General Provisions Act confers power on the Court to take judicial notice of Acts of Parliament and that in his oral arguments, he had referred to the Industrial Relations Act as JS o f 8 amended in 2008. He further sought to p er su ade us in that regard, by citing an Eastern Carribean Supreme Court case of Daphne Alves v the Attorney General of Virgin Island 161 in which it was held that the Court is entitled to take judicial n otice of Acts and subsidiary legislation and they applied to the facts of a case without the n ecessity of bein g p leaded. We h ave considered the Heads of Argument and viva voce submissions of the Parties and we see only one m ajor issu e for resolution which is wheth er or not a Court has jurisdiction to proceed with a matter after the time sp ecified for commen cin g it has ela p sed. We note that in casu, the time requirem ent is stipulated by Section 85 of the Industrial and Labour Relations Act as amended by the Industrial and Labour Relations Amendment Act No. 8 of 2008 which reads as follows; 19. Section eighty-five of the principal Act is amended by the deletion of subsection (3) and the substitution therefore of the following: (3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the Court- (a) within ninety days of exhausting the administrative channels available to the complainant or applicant; or (b) where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that- J6 of8 (i) upon application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it; and (ii) 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." Th e facts in casu inform us that following the dispute, the administrative channel utilized by the Parties was under the auspices of the Office of the Senior Labour Officer of the Department of Labour whose work concluded on 25 t h July 20 13 when h e wrote the letter exhibited on p age 30 of the Record of Appeal. We note that Section 85 of the Industrial and Labour Relations Act states that the Court "shall not consider" a complaint which has n ot complied with th e time requ irement and where th e applicant has not applied for an extension of time. The complaint in this case was filed nearly 5 years la ter and no application to extend time was made. Learned Counsel for the Respondents' argument that the cause of action recurred every single time there was an underpayment is absurd. The underpayments were the subject of the dispute and the administrative procedure was the method by which th e Parties sou ght to r esolve the dispute. The two a re separate, the dispute is th e passen ger and the administrative procedure is the vehicle. The administrative process came to an end and the Respondents decided to bring the matter to Court but they were out of time. This a r gumen t is therefore dismissed. The cases of Admark Limited 11l; Vangeletos & Others v Metro Investments Ltd & Others 13 l a nd Crossland Mutinta & Bashir Seedat v Donovan Chipanda 14 l cited by Counsel for the Appellant, state that the issue J7 of 8 of the time bar can be brought up at any time because it is a point of law. In this particular case, the trial Court had no jurisdiction to proceed, as the law provides no room to do so where the provisions of Section 85 have not been complied with. We refer to the case of Zambia Consolidated Copper Mines Limited v Elvis Katyamba & Others 171 in which the Supreme Court considered the mandatory nature of the time bar under Section 85 (3). Even though the Judgment related to the principal Act before the 2008 amendment, the major difference in this regard is that the amendment increased the period within which to file a complaint to 90 days from the earlier period of 30 days. The Supreme Court went further and opined on how applications for extension of time under that Section should be addressed by the Court. The Judgment of the Court was delivered by Silomba JS; "In terms of the law quoted above, it is mandatory for the IRC not to entertain a complaint or application unless such complaint or application is brought before it within thirty days from the date of the event that gave rise to the complaint or application. This means that a party wanting his or her complaint or application determined by the IRC must file his or her complaint with the court within thirty days of the occurrence of the event which gave rise to the complaint or application. In view of the mandatory nature of the law in Subsection 3 of the Section 85 of the Act, the proviso is, from our point of view, seen as a means of facilitating settlement outside court. This means that if the complainant or applicant can show to the court that during the mandatory period of thirty days he or she had engaged in the process of appeal or negotiations for a better retirement or retrenchment package, the application for an extension of time within which to lodge JS of 8 the complaint or application can be said to be meritorious. As Mr. Chamutangi submitted, we think that an appeal or negotiations for a better package made within the mandatory period has the potential of suspending the mandatory thirty days so that should the court agree with the complainant or applicant, the extension for a further period of three months is, by law, supposed to be from the date the administrative channels have been exhausted." In the premises, we hold that the Appellant was entitled to bring up the issue at any time, even in its submissions, after the Partie s had closed their respective cases. Lastly, Mr. Chimembe's plea that the Appellant's Heads of Argument b e expunged because of reliance on repealed law is dismissed because the applicable law was referred to in the Appellant's viva voce arguments and it doesn't change the fact that the matter was statute barred rendering the Court bereft of jurisdiction. This Appeal is allowed and costs are granted to the Appellant. M. M. KONDOLO, SC COURT OF APPEAL JUDGE ······c·~ ····· COURT OF APPEAL JUDGE F. M. CHISHIMBA COURT OF APPEAL JUDGE