Makwaibe v Kariba North Bank Company Ltd and Anor (Appeal 1 of 2004) [2005] ZMSC 12 (27 October 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 3/2004 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: MW ALA MARTIN MAKWAIBE (suing on his on behalf, andfor and on behalf of 11 employees of Kari ba North Bank Company Limited retrenched on 19th November, 2004) AND APPELLANT KARIBA NORTH BANK COMPANY LTD POWER GENERATION AND ALLIED WORKERS UNION OF ZAMBIA Ist RESPONDENT 2nd RESPONDENT CORAM. LEW ANIKA, DCL, CH1TENGI, MUSHABATI J J S On 6th April, 2004 and 27th October, 2005. For the Appellant: For the 1st Respondent For the 2nd Respondent: K. HANG’ANDU of Kelvin Hang’andu & Co. No Appearance No Appearance ___________________________ JUDGMENT___________________________ LEWANIKA, DCJ delivered the judgment of the court. At the hearing of this appeal Counsel for the 1st and 2nd Respondents did not show up despite the fact that we stood down the hearing of the appeal for some twenty minutes in the hope that Counsel would turn up. Thereafter we proceeded to hear the appeal at the request of Counsel for the Appellant having satisfied ourselves that Counsel for the Respondents was aware of the hearing. In this appeal, we shall refer to the Appellant as the Plaintiff and the Respondents as the Defendants, which is what they were in the court below. This appeal is against the Ruling of a Judge of the High Court made on 30th December 2003. The short history of this matter is that the Plaintiff on 30th December, 2003 instituted proceedings by way of writ of summons against the Defendants on his own behalf and on behalf of 11 others who were employees of the 1st Defendant and members of the 2nd Defendant. The Plaintiff was claiming inter alia:- 1. 2. Damages for unfair dismissal Declaration that the Plaintiffs have continued to be employees of the Defendant and are entitled to their full wages, until the last day of payment of their actual redundancy benefits in accordance with Section 26B of the Employment Act; 3. Damages for breach of contract against the second Defendant. On the same day the Plaintiff filed an ex parte summons for an interim injunction to restrain the 1st Defendant by itself, its agents or servants or otherwise from evicting the Plaintiffs from the company houses occupied by them, or otherwise enforcing the eviction notices served on them on 19th November, 2003 until the hearing of the inter parties application for an interim injunction. The learned trial Judge heard the matter ex parte and not only refused to grant the interim injunction but also declined to entertain the whole action on the ground that he lacked jurisdiction as the matters complained of fell within the exclusive jurisdiction of the Industrial Relations Court. In his Ruling, the learned trial Judge said as follows:- “ Paragraph 7 of the statement of claim alludes to the interpretation of the Collective Agreement of 1st January, 1997, which is an issue falling exclusively under the jurisdiction of the Industrial Relations Court Section 9 of Act No. 30 of 1997. So it was not competent for the High Court to interpret a Collective Agreement” Paragraph 7 of the Plaintiffs statement of claim was couched in the following terms: 7. The Plaintiffs were paid redundancy benefits based on a redundancy agreement executed on 4th November 2003 between the first and second Defendants. The said redundancy benefits were inferior to the value of the Plaintiffs’ redundancy benefits under the Collective Agreement of 1st January, 1997, which was relied on since then by the first Defendant and from 2000 by the second Defendant, as the basis of the Conditions of Service of all of the first Defendant’s unionized employees until 2003. We are at pains to discern from this paragraph how the learned trial Judge could have come to the conclusion that this paragraph alluded to the interpretation of a Collective Agreement. Furthermore, the issue before the learned trial judge was the application for an interim injunction and not the merits or demerits of the whole action. If he was not inclined to grant the interim injunction ex parte, he should have set a date to deal with the application inter partes and thus afford the parties a hearing. It was not open to him to deal with the main action in such a cavalier manner and also dismiss the Plaintiffs action without affording him the opportunity to be heard. In the circumstances, we have no alternative but to allow the appeal and order that the action be tried by a different Judge of the High Court. We make no order as to costs. D. M. Lewanika DEPUTY CHIEF JUSTICE P. Chitengi SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE 4