Pares Chandra Pal v GM International (Z) Limited and Anor [2020] ZMCA 186 (4 November 2020)

IN THE COURT OF APPEAL FOR ZAMBIA (cid:9) Appeal/96/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: C (cid:9) F, EAT\ PARES CHANDRA PAL APPELLANT AND (cid:9) -' GM INTERNATIONAL (Z) LIMITED (cid:9) GILCON (Z) LIMITED (cid:9) 1ST RESPONDENT 2ND RESPONDENT CORAM : Chisanga JP, Kondolo and Chishimba, JJA Delivered on the 4th of November 2020 For the Appellant (cid:9) For the Respondents : DR 0. Banda of Messrs OM Banda & Company. : Mr F. Besa of Messrs Besa Legal Practitioners. JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. Daniel Mwale v. Njolomole (sued as Administrator of the Estate of the late Gabriel Siwanamutenje Kapuma Mtonga) v. The Attorney General SCZ judgment number 25/20 15 2. William David Carlistle Wise v. ET Hervey Limited (1985) ZR 17 3. Dunlop Pneumatic lyre Co. ltd v. Selfridge & Co. (1915) AC 847 4. Smith & Keen's English Law (2004) 16th Edition 5. Whiteson NL Silwamba v. Kitwe City Council SCZ Appeal No. 56 of 2000 6. ANZ Grindlays Bank (Zambia) Ltd v. Chrispin Kaoma (1995-97) ZR 85 -J2- 7. Masusu Kalenga Limited and Another vs. Richmans Money Lenders Enterprises. SCZ No. 4 of 1999 LEGISLATION AND OTHER WORKS REFERRED TO: 1.0 The Limitation Act 1939 2.0 (cid:9) The Rules of the Supreme Court 1999 Edition 3.0 Smith & Keen's English Law (2004) 16th Edition 4.0 (cid:9) Authentication of Documents Act 5.0 (cid:9) Halsbury's Laws of England 41h Edition 1.0 INTRODUCTION 1.1 This is an appeal against the decision of Justice M. Kawimbe who struck out the appellant's claims on account of being statute-barred and for lack of jurisdiction. 2.0 BACKGROUND FACTS 2.1 The appellant had commenced an action against the respondents on 3rd June 2014, seeking payment of the sum of US$ 193, 292 being salary emoluments and benefits due to him. The appellant had been employed as Group Financial Controller by the 1st Respondent under various contracts between October 1999 and 301h June 2008. 2.2 On the 20th of April 2016, the appellant applied by way of summons to amend the writ and statement of claim. Before (cid:9) (cid:9) (cid:9) -J3- the application to amend could be heard, the respondent raised preliminary issues on points of law pursuant to Section 2 of the Limitation Act 1939 and Order 14A of the Rules of the Supreme Court as follows; (i) Whether the plaintiff's (appellant) claims as stated in paragraphs 5 to 7 and 10 of the proposed amended statement of claim are statue barred and whether or not the same are not liable to be dismissed for being statute barred. (ii) Whether or not leave to amend is available to the plaintiff in relations to claims stated in paragraphs 5 to 7 and 10 of the proposed amended statement of claim. (iii) Whether or not the 2nd respondent can be sued over the transaction and the cause of action stated in paragraph 10 of the proposed amended statement of claim when it was not party and parcel to it. 3.0 DECISION OF THE DEPUTY REGISTRAR 3.1 The learned deputy registrar after hearing the parties, held that the claims by the appellant are not statute barred and dismissed all the preliminary issues raised. The deputy -J4- registrar further granted the appellant leave to ament the writ and statement of claim. 4.0 APPEAL TO JUDGE IN CHAMBERS 4.1 (cid:9) Being dissatisfied with the ruling of the Deputy Registrar, the respondents appealed to the Judge in chambers in the court below. 4.2 The learned High Court Judge heard and considered the preliminary application subject of appeal and arguments advanced which were essentially the same as advanced before the Deputy Registrar in respect of the issue whether the claims are statute barred. The court below considered section 2(1) of the Limitation Act 1939 of the United Kingdom which is applicable to Zambia and stipulates that an action shall not be brought after the expiration of six years from the date on which the cause of action arose. The court below also considered the case of Daniel Mwale v. Njolomole (sued as Administrator of the Estate of the late Gabriel Siwanamutenje Kapuma Mtonga) v. The Attorney General(1), in which the Supreme Court stated that the issue of statutory bar when raised is as much about the jurisdiction of the court as it is a statutory defence for a party. That it was (cid:9) -J 5- a legal point touching on both the court's jurisdiction and a provision of a statute. 4.3 The lower court also considered when a cause of action is disclosed as per holding in William David Carlistle Wise v. ET Hervey Limited (2) The court held that the appellant's cause of action arose in 2008 when he left employment and by not taking steps to litigate his claims, he had deprived himself of an opportunity for the court's intervention. That the plaintiffs' claims in paragraphs 5, 6, and 7 of the amended statement of claim are statute barred and having no jurisdiction to continue the proceedings therein, struck out the claims in the stated paragraphs. 4.4 As regards the claim under paragraph 10 of the amended claim, the court equally struck it out because of the arbitration proceedings between the respondents and Konkola Copper Mines (KCM) subject of an arbitration agreement between the parties. The court stated that it had no jurisdiction to entertain the claim under paragraph 10. 5.0 APPEAL -J6- J6- 5. 1 5.1 Being dissatisfied with the decision of the court below, the appellant filed an appeal and raised the following grounds that; (i) The learned judge in the court below erred in fact and in law when she failed to understand that time started counting on the 30th of June 2008 for the purpose of statutory time limitation and that the matter was brought to court within 6 years of the statutory limitation period (ii) The learned judge in the court below erred when she ruled that the purported arbitration between the respondent and KCM affected the appellant's claim against the respondents' when the appellant was not privy to those proceedings. 6.0 ARGUMENTS ADVANCED BY THE PARTIES 6.1 The appellant submits that his action is not statute barred. The appellant was in the employ of the respondents up to 30th of June 2008 and the cause of action arose from the said date. The action before court was commenced on 3rd June 2014 within the limitation period of six years. Section 2(1)(a) of the Limitation Act 1939 was cited on the limitation of actions -J7- arising from contract and tort being brought after six years. It was further submitted that the general rule is that the limitation period begins to run when the cause of action accrues. 6.2 It was contended that paragraph 5, 6 and 7 of the amended statement of claim are not statute- barred. The appellant worked for the 1st respondent under various contracts which were being renewed. Further that during the said period, the appellant was paid a part payment of US$ 25, 000 towards his benefits by the respondents. The cause of action having arisen on 30th June 2008 and the appellant was within the 6 years limitation period and ought to be allowed to pursue the claims with reasonable diligence. 6.3 In ground two, in respect of the claim under paragraph 10 of the statement of claim, namely the commission in the sum of US$ 85,000, the appellant argues that he was not privy to the purported arbitration contract between the respondents and KCM PLC. The problems therein between the above parties has nothing to do with the appellant. Only parties to a contract can take action to enforce it. The appellant cited the case of Dunlop Pneumatic Tyre Co. Ltd v. Seifridge & Co. i8- _J8_ (3) as authority as well as the book entitled Smith & Keen's (3) English Law (2004) 1 6th Edition page 291. We were further referred to the case of Storer v. Manchester City Council (4) on contract and formation. 6.4 It was submitted that the appellant and the 1st respondent agreed that the plaintiff would receive a commission on all jobs contracted with KCM PLC. There was a clear contractual relationship and the arbitration dispute between KCM and the 1st respondent is not relevant and has no bearing on the appellant's claim. In concluding his arguments, the appellant submits that matters should be determined on merit and that if the respondents contend that there are no merits to his claims, they ought to defend themselves. We were urged to uphold the appeal. 6.5 The respondents in their heads of argument submit that the claims by the appellant are both statute-barred and Res judicata. The appellant was employed in 1999, due to financial hardships faced by the company, he resigned in 2005. The appellant commenced legal action on 3rd June 2014 after the lapse of 9 years. Reference was made to section 2 (1) (a) of the Limitation Act 1939 and the case of Daniel Mwale and -J 9- Njolomole Mtonga (sued as administrator of the estate of the late Gabriel Siwonamutenje Kaapuma Mtonga) v. Attorney General (supra) in which the Supreme Court held that; "time begins to run when there is a person who can sue and another to be sued when all the facts have happened which are material to be proved to entitle the plaintiff succeed..." 6.6 As to the definition of a cause of action, the case of William David Carlistle Wise (supra) was cited. The respondents contend that the contract of employment between the parties were done in phases. The first contract ran from 1st October 1999 to 30t September 2001. The last contract ran from 1st October 2001 to September 2005. The respondents contend that the claim arising from the contract of employment dated 2005 is statute barred. The respondents referred to the case of Whiteson NL Silwamba v. Kitwe City Council (5) on statute barred actions being a complete waste of time and resources. 6.7 The appellant went on to argue that in any event this matter may be considered as res judicata, the issue at hand having been decided by the High Court under cause number 2016/HP/0395 -J10- 6.8 In response to ground two, the respondent submits that the parties had agreed that the plaintiff would receive a commission on the profit of the contract sum. The contract on which the promise of such a commission was relied on was not clinched as it was prematurely terminated. Therefore the agreement to pay commission also fell off as the contract did not materialize. 6.9 The respondents went on to attack the record of appeal, contending that the appeal be dismissed on account of irregularities. Namely that the paragraphing of pages 1, 6 and 19 does not conform to the standard rules set out. 6.10 The respondents went on to raise the issue of lack of authenticity in respect of the contracts between the parties. Section 2 of the Authentication of Documents Acts was referred to on the meaning of authentication. The respondents in a nutshell argued that the alleged contracts being relied upon are not genuine and cannot be adduced as 'eligible' evidence. We were urged to dismiss the appeal. 7.0 DECISION OF THE COURT 7.1 We have considered the appeal, the authorities cited and the arguments advanced by Learned Counsel for both parties. It is not in issue that the appellant was employed under various contracts with the 1st respondent until a certain period. On the 30th of June 2007, the 1st respondent advised that the appellant's salaries and other benefits would be transferred to the 2rd respondent who assumed responsibility for payment. On the 3rd of June 2014, the appellant commenced the action against the respondents seeking to recover the sum of US$ 193, 292 being salary and other benefits due to him. The respondents contended that the claim by the appellants are statute barred. 7.2 The issue for determination in ground one is whether the claims by the appellant are statute- barred. Section 2(1) of the Limitation Act of 1939 provides as follows: "the following action shall not be brought after expiration of six years from the date on which the cause of action accrued" This is in respect of an action founded on simple contract or tort. The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of the suits against them. The statute expects litigants to take and exercise reasonable steps in their own interest by pursuing claims within time. -J12- 7.3 (cid:9) The issue for determination is when the cause of action arose, because from that time, the limitation period of six years started running. According to Black's Law Dictionary the word 'accrue' means to come into existence as an enforceable claim or right. In the cited case of Wise v EF Hervey Limited (supra) a cause of action was said to be 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". 7.4 The respondents contended that time began to run from 30th September, 2005. Whilst the appellant argued that it ran from 30t June, 2008. We have perused the record of appeal. At page 56 of the record, there is a letter by the 1st Appellant dated 30th of September 2007 addressed to the accountant advising that the appellant's debts shall be transferred to Gilcon (Z) Ltd (the 2nd respondent) with effect from 30t1 September 2007 and paid by Gilcon (Z) Ltd. This was consented to by the appellant. 7.5 In furtherance of the above, on the 19th of August 2008, the 2nd respondent made a part payment of outstanding amount in the sum of US$25,000.00 to the appellant by way of cheque number 000226. See page 56 of the record of appeal. The said -J13- payment was acknowledged by the appellant on the said date. The handwritten payment and acknowledgement signed by the parties read as follows; Part - payment of outstanding payment $25,000 "Received the cheque from Gilcon (Z) Limited against GM International (Z) Limited outstanding salaries/foreign payment as part payment." 7.6 The next question to be considered connected to the above is the effect of the part payment, whether it took the claim out of the statute of limitation or not. Section 23 (4) of the Limitation Act 1939 stipulates that; "Every such acknowledgment as mentioned in section 22 shall be in writing and signed by the person making the acknowledgment. Any such acknowledgment or payment as mentioned in section 22 may be made by the agent of the person by whom it is required to be made to the person, whose title or claim is being acknowledged or as the case may be..." 7.7 It is therefore trite, that the acknowledgement of debt must be in writing and it must also be signed by the person acknowledging the debt. -J 14- As to whether the acknowledgment of debt met the requirement set out in section 23(4)(ii) of the Limitation Act of 1939, we hold the view that the acknowledgment does meet the threshold requirement. It was in writing and acknowledged by the parties and constituted sufficient acknowledgment of the claim as at 19th of August 2008. 7.8 We are of the considered view that the part payment made on the 19th of August, 2008, places the claim within the limitation period of six years. We therefore find that the cause of action arose from the date of part payment namely the 19th of August 2008. The respondents acknowledged the existence of the claim by the appellant in respect of salaries. Therefore, the claims raised in paragraphs 5, 6 and 7 of the amended statement of claim are not statute-barred. 7.9 The respondent also argued that the claims in paragraphs 5, 6 and 7 are res judicata having been adjudicated upon in cause 2016/HP/0395 and that such a cause cannot be resolved by way of appeal. -J15- It is trite that res judicata is a defence. We refer the learned authors of Haisbury's Laws of England, 4th Edition, Volume 16, paragraph 1254, where they state that; "In order to that a defence of res judicata may succeed, it is necessary to show that not only the action was the same, but that the plaintiff had an opportunity of recovering.. . A plea of res judicata must show either an actual merger or that the same point had been declared between the parties where judgment was entered" 7.10 We also refer to the supreme case of ANZ Grindlays Bank (Zambia) v. Chrispin Kaoma (6) in which it was stated that for a defence of res judicata to succeed it must be shown that the cause of action is the same and the plaintiff had an opportunity of recovering in the first action that which he hopes to recover in the second. 7.11 We note that cause 2016/HP/ 0395 subject of the preliminary issues raised in the court below dealt with the issue whether the action by the appellant was statute barred and not the substantive claims by the appellant. These are the issues before this court on appeal. The issue of res judicate does not arise. The substantive claims by the appellant were not dealt with. We dismiss the arguments relating to res judicata. 7.12 In ground two, the issue raised is one of jurisdiction on -J16- account of the alleged arbitral proceedings in respect of the claim for commission by the appellant. It is not in dispute that by agreement dated 28th of October 2006, the parties agreed that the appellant would be paid a commission of 5% of the contract sum on jobs contracted with KCM/KDM project by the respondents. Pursuant to the agreement, a contract was clinched with KCM for US$1,700,000 on which a commission of US$85,000 was claimed by the appellant. 7.13 The respondents in respect of this claim, argued that there was a dispute between them and KCM which was before an arbitrator for determination. The contract on which the promise of a commission was made, was prematurely terminated. 7.14 The learned judge in the court below held that because the appellant had not challenged the fact of the arbitration proceedings between the respondents and KCM, she was bound to acknowledge that there was a binding arbitration agreement between the parties and that the court had no jurisdiction to entertain the claim therein, which was struck off. J17- -J17- 7. 7. 15 We are of the view that the dispute subject of arbitration 4 (cid:9) proceedings was between the respondents and KCM. The appellant was not privy to the contract subject of arbitration. The issue the lower court ought to have considered was whether the claim for commission was statute-barred. 7.16 The respondents in its submission attempted to argue that the contract documents sought to be relied upon by the appellant are not valid because they were not authenticated as required under section 2 of the Authentication of Documents Act. 7.17 We note that this issue was not raised in the court below. It is trite that a point not raised in the court below cannot be raised on appeal and will not be entertained. See the case of Masusu Kalenga Limited and Another v. Richmans Enterprises (7) in which the Supreme Court stated that "Where an issue was not raised in the court below, it is not competent for any party to raise it on appeal". In any event, this argument goes to the defence of the claims. We dismiss the arguments therein. 8.0 CONCLUSION -uS- 8.1 Having earlier stated that the cause of action arose on 19th August 2008 and the suit being filed on 3rd June 2014, the claims by the appellant were not statute-barred, we hold that the court below erred in law and fact and further misdirected itself by holding that the action by the appellant was statute- barred and that it had no jurisdiction to hear the claims. We hereby set aside the holding of the court below and remit the record back for determination before another judge. Costs are awarded to the appellant to be taxed in default of agreement. C F. M Chisanga JUDGE PRESIDENT COURT OF APPEAL M. M. Kondolo, SC COURT OF APPEAL JUDGE F. M. Chishimba COURT OF APPEAL JUDGE (cid:9) (cid:9)