Nyambe v Bank of Zambia (Appeal 207 of 2012) [2016] ZMSC 13 (3 February 2016)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 207/2012 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: PRISCA MATIMBA NYAMBE APPELLANT AND BANK OF ZAMBIA RESPONDENT CORAM: MAMBILIMA CJ, HAMAUNDUAND KAOMA, JJS; on the pt October, 2015 and ard February, 2016. For the Appellant: Mr. M. MWITUMWA,of M. L. Mukande and Company. For the Respondent: Mr. M: MUNDASHI, SC and Mr. D. CHAKOLEKA of Mulenga Mundashi Company. and JUDGMENT MAMBILIMA,CJ delivered the Judgment of the Court. CASES REFERRED TO- 1. JOACHIM GABRIEL CEPHAS BANDA & OTHERS V BANK OF ZAMBIA SCZ/8/1998 2. BANK OF ZAMBIA V JONAS TEMBO AND OTHERS (2002) ZR 103 3. ZESCO LIMITED VS IGNATIUS MULEBA SULE, SCZ 170 OF 2002 4. SHAW V SHAW [1954]2 ALL ER 638 5. KITCHEN V ROYAL AIR FORCE ASSOCIATION AND OTHERS [1958]2 ALL ER 241 6. BONIFACE JOSEPH SAKALA V ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED 2010/HP/727 7. STELLA UPTON V WILLIAM DEREK WALKER (1971) ZR 192 J1 • 8. KELVIN HANG'ANDU AND COMPANY (A FIRM) V WEBBY MULUBISHA (2008) ZR 82 (VOL. 2) 9. BEAMANV ARTS LIMITED [1949]1 ALL ER 465 at page 470 CLARKE AND ANOTHER V WOOR [1965]2 ALL ER 353 10. UNITED ENGINEERING GROUP LIMITED 11. V MACKSON MANGALUAND OTHERS LEGISLATION REFERRED TO- 1. LIMITATION ACT 1939 OF ENGLAND 2. THE INDUSTRIAL AND LABOUR RELATIONS ACT CAP 269 OF THE LAWSOF ZAMBIA WORK REFERRED TO- 1. RULES OF THE SUPREME COURT WHITE BOOK 1999 EDITION 2. BLACK'S LAW DICTIONARY 8TH EDITION BRYAN. A. GARNER THOMSON WEST 2004, USA 3. HALSBURY'S LAWS OF ENGLAND, 4TH EDITION VOLUME 28 paragraph 807 This is an appeal from a Ruling of the High Court, dismissing the Appellant's claim to review her separation package, on grounds that the action was statute barred. The background to this case, to which there is no dispute, is that the Appellant was an employee of the Respondent Bank from April 1987, to May 1993, as Legal Counsel. She rose to the position of Senior Director. Sometime between 1991 and 1992, the Respondent carried out organizational restructuring which, among others, abolished the Appellant's position of Senior Director. She was relegated to a lower position of Assistant Director under the J2 • Bank Secretary's Department while maintaining her pay and other benefits. The Appellant was not happy with this turn of events. She opted for a redundancy package which was provided under the restructuring programme. She later withdrew her wish for redundancy and opted to go for further studies. After an exchange of several letters, the Respondent wrote declining the Appellant's request to separate by way of redundancy. To her surprise, the Respondent considered the separation as a 'normal termination by resignation' and yet she had not resigned. Dissatisfied with the state of affairs, the Appellant sued the Respondent in the Industrial Relations Court (IRC),claiming among others, that the purported termination by way of resignation was illegal as she was never requested to resign from the Bank and that she should be considered to have been declared redundant and be given a redundancy package. The IRC ruled in favour of the Appellant and ordered that she be deemed to have opted for a redundancy package. An appeal to this Court by the Respondent was unsuccessful. We upheld the IRC decision and ordered that the Appellant be paid a redundancy package as Assistant Director on the May 1993 salary scale. J3 • In 1995, a group of former employees who left the Respondent Bank under the Redundancy Scheme of 1991/92 challenged its validity m Court in the case of JOACHIM GABRIEL CEPHAS BANDA & OTHERS V BANK OF ZAMBIA 1. According to the Appellant, the IRC held that the scheme was null and void because the Works Council had not been consulted. When the matter came to us on appeal, we held, in a judgment delivered in 1998 (hereinafter referred to as "the JUDGMENT") that the redundancies were unlawful because they were not approved by the Works Council. This was on the premise that the Appellants in that case, had an acquired or accrued right not to be declared redundant without that decision being approved by the Works Council. The Appellants, instead, were compensated by an award of twelve months salary and benefits, that each of the Appellants was entitled to on the date that each of them was unlawfully declared redundant. The amounts carried interest from the date of filing the complaint up to the date of payment. Early in 2004, the Appellant, who was abroad at the time, requested the Respondent to enhance her redundancy package in line with the 1998 JUDGMENT. The Respondent declined to do so J4 in letters dated 6th October 2004 and 13th September, 2010 stating that she was not entitled to benefit from the 1998 JUDGMENT as she was not a party to those proceedings. The Appellant then brought a fresh action, the subject of this appeal, against the Respondent, on 18th March, 2011, seeking an order for re- computation and payment of enhanced benefits, based on the 1998 JUDGMENT. She also sought damages for discrimination, concealment and/ or fraud by the Respondent by denying her rights to the package awarded to the other employees. The Appellant contended that the Respondent fraudulently and maliciously computed her package on the 1991/92 redundancy scheme when it was aware at all material times that the package was nullified by the 1998 JUDGMENT. That the Respondent failed in its duty as former employer, to inform her or compute her benefits using the formula in the 1998 JUDGMENT. In response, the Respondent submitted that the Appellant's claim was res judicata as it was conclusively dealt with in an earlier action namely, PRISCA NYAMBE V BANK OF ZAMBIA COMPLAINT NO. 323/94 and BANK OF ZAMBIA V PRISCA NYAMBE SCZ APPEAL NO. 59/97 (hereinafter referred to as "the J5 EARLIER PROCEEDINGS"). The Respondent stated that the Appellant was paid a redundancy package as directed by the Court in the "EARLIER PROCEEDINGS" and that the cause of action in the case of the former employees and that of the Appellant were totally unconnected. In the alternative, the Respondent submitted that the Appellant's claim was statute barred under Section 2 (1) (a) of the LIMITATION ACT 1939 (hereinafter referred to as "the ACT"). The said Section states:- "2 (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that (a) actions founded on simple contract or on tort; ..." is to say- Consequently, the Respondent filed summons to dismiss the action on a point of law pursuant to Order 14A/l of the RULES OF THE SUPREME COURT 1999 EDITION. The Court was invited to decide:- "1. Whether the defence of res judicata applies to these in earlier proceedings proceedings in view (of) the judgment between the same parties namely, PRISCA NYAMBEV BANK OF ZAMBIACOMPLAINTNO. 323/94 and as confirmed by the Supreme Court APPEALNO. 59/79. in BANK OF ZAMBIAV PRISCA NYAMBE, J6 2. 3. In the alternative without prejudice to the above, whether the Plaintiffs claim is statute barred under the provisions of section 2(1) (a) of the LIMITATIONACT, 1939 of England. If all of these questions or one of them is answered in the affirmative, then the Plaintiffs claim be dismissed." In an affidavit it filed in support of the summons, Penelope Mwenya MAPOMA,the Respondent's acting Director of Human Resources, deposed, inter alia, that the Appellant filed process in the Industrial Relations Court in 1994. That the matter went up to the Supreme Court. She deposed further, that from the Appellant's statement of claim, the alleged cause of action arose more than six years before filing of the case in casu. On the first point of objection, that the matter was res judicata, it is the Respondent's position that the Court had conclusively dealt with the Appellant's redundancy package in the "EARLIER PROCEEDINGS"; that the cause of action in this case was the same as in the earlier cases, involving the same parties; and that the Appellant had an opportunity during the "EARLIER PROCEEDINGS" to raise the issues that she was now raising but had not done so. To buttress this position, the leamed Counsel for the Respondent cited the case of BANK OF ZAMBIA V JONAS TEMBO AND OTHERS2 where we held that:- J7 "In order that a defence of res judicata may succeed, it is not only necessary to show that the cause of action was the same, but also that the Plaintiff had an opportunity of recovering but for his own fault might have recovered in the first action that which he seeks to recover in the second." He submitted that the Issues which the Appellant was bringing up could have been dealt with by the Court in her complaint had she not neglected to bring the issues before the Court. On the second point of objection, Counsel contended that the Appellant's claim was statute barred, and that the six-year period of limitation started running from 1993 when the Appellant was declared redundant. That even assuming that the period began to run in 2004, the matter would still be statute barred. In opposing the application to dismiss the matter, the learned Counsel for the Appellant argued that the "EARLIER PROCEEDINGS" were distinguishable from the case in casu because at the time, the Appellant was merely seeking a determination of whether she had resigned or had been declared redundant by the Respondent. That the present action, on the other hand, related to the applicable fringe benefits or entitlements. With regard to the alternative claim, that this action is statute J8 barred, it was Counsel's contention that the defence of statute bar was not available to the Respondent by operation of Section 26 (b) of the LIMITATION ACT1 , which states- "26. Where, in the case of any action for which a period of limitation is prescribed by the Act, either- (a) (bl The right of action is concealed by the fraud of any such ... , or person as aforesaid, or lc) ... the period of limitation shall not begin to run until the Plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it." It is the Appellant's position that having been aware of the nullification of the 1991/92 redundancy package by this Court, the Respondent concealed this from her and fraudulently computed her package under the 'nullified formula.' Counsel submitted that the limitation period in this case should, therefore, only start running from the time that the Appellant discovered the fraud and that a determination of the exact point that she did so, could only be done at full trial. After considering the application and the submissions before him, the learned trial Judge agreed with both Counsel that Appellant's claim was founded in contract, to which the six-year limitation period applied, and that where fraud is alleged, the cause J9 of action arises when the Plaintiff becomes aware of it. He was also of the view that the Respondent had a duty to inform the Appellant if she stood to gain from the 1998 Judgment because she was not a party to it. The Judge relied on the case of ZESCO LIMITED VS IGNATIUS MULEBA SULE & 15 OTHERS3 in which we stated:- "The Appellant is a public utility company as such it has to conduct its affairs fairly and treat all employees who are similarly circumstanced equally." According to the Judge, our statement in the ZESC02 case is "broad and includes circumstances where a court orders that certain changes be made to a redundancy formula; when that happens all employees who fall within that category should benefit. They need not necessarily have been part of the litigation." He was of the view that if, indeed, the 1998 judgment conferred a benefit on the Appellant, and the Respondent computed her benefits on the old formula, the Appellant was justified to allege fraud or willful concealment of information by the Respondent. The Appellant argued that a trial was necessary to interrogate the allegation that the 1998 judgment did in fact, confer such benefit on her and also to establish when she became aware of it. In resolving the issue as to whether it was necessary to go to trial to JlO determine the time when the Appellant became aware of the alleged fraud, the Judge examined paragraphs 12 and 15 of the Appellant's amended statement of claim. They state as follows:- "12. In January 2004, the Plaintiff who was then based abroad wrote to the Defendants asking them to review her package in line with the aforesaid Supreme Court Judgment but to no avail. 15. Though this matter was under discussion between the Plaintiff and the Defendants, it was only on October 6th 2004 that the the Plaintiff was claiming under Defendants advised that wrong package when in fact not and alternatively denied the Plaintifrs claim on September, 2010." Arising from these averments, the learned trial Judge concluded that the Appellant, by her own reckoning, was already aware of the 1998 JUDGMENT in January, 2004. That her cause of action consequently arose, at the latest in January, 2004. After noting that the Writ of Summons in the case in casu was filed on 18th March, 2011, 7 years and 2 months after the cause of action arose, he found that the case was statute barred. On the contention in paragraph 15 of the Statement of Claim that the matter was under discussion from 2004 up to 2010, the learned Judge was of the view that the facts of the case in casu precluded the Appellant from benefitting from any delay that could have been caused by negotiations. He relied on the learned authors J11 of HALSBURY LAWS OF ENGLAND3 who state in paragraph 807 of Volume 28 that a Defendant is not precluded from pleading a statute of limitation by the mere fact that negotiations were taking place between the parties. Dissatisfied with this Ruling, both the Appellant and the Respondent have now appealed and cross appealed, respectively, to this Court advancing one ground of appeal each. The Appellant's ground of appeal is that - 1. Though the trial Judge accepted the legal position that where fraud is proved or where the right of action is fraudulently concealed or where the action is for relief from the consequences of a mistake, the LIMITATIONACT 1939 provides exceptions to the starting point of (the) six year period, he misdirected himself in law and fact by deciding that the Appellant came to know of her rights to sue in 2004 ignoring the Respondent's subsequent misleading and false correspondence to her on 6th October 2004 that she was not in the group which was entitled. The Respondent's ground of appeal m the cross appeal IS that:- 1. The learned trial Judge erred in law and in fact when he held that the matter was not res judicata. At the hearing of this appeal, both Counsel relied on their heads of argument which they filed into Court. In support of the Appellant's appeal, the learned Counsel for the Appellant contended that the learned trial Judge's conclusion J12 that the action was one year and two months outside the statute of limitation was not based on a proper evaluation of the evidence on record. He argued that the learned trial Judge misdirected himself by concluding, on affidavit evidence, that the Appellant became aware of the 1998 JUDGMENT in January, 2004 instead of proceeding to trial. That the learned trial Judge omitted to evaluate the effect that the Respondent's letter of 6th October, 2004 had on the Appellant's right to pursue her claim, and that had he done so, he would have come to a different conclusion. Counsel described the Respondent's conduct as unconscionable and dishonest, as it took advantage of the Appellant's absence from the country and her apparent lack of knowledge to mislead her about the 1998 JUDGMENT. He referred us to the case of SHAW V SHAW where it was stated:- "In any case as my Lord has said, the Plaintiff can rely on Section 26(b) and the decision of this Court in BEAMANv ARTS Limited. That case shows that the word "fraud" in the statute is not used in the sense of moral turpitude, and that Section 26(b) avails a plaintiff in the circumstances such as have arisen here when knowledge has been kept from her by the conduct of the deceased man." Counsel also cited the case of KITCHEN V ROYAL AIR FORCE ASSOCIATION AND OTHERS5 where the meaning of the J13 word "FRAUD" In relation to Section 26(b) was discussed. The Court stated:- "It is now clear, however that the word "fraud" in S. 26 (bl of the LIMITATIONACT, 1939, is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in BEAMANV ARTSLTD([1949]1 All ER 4651, no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter HARDWICKEdid not attempt and I certainly shall not attempt clear that special relationship between the two parties unconscionable thing for the one to do to the other." LORD ago, to do so now, but it is, I think, the phrase covers conduct which, having regard to some an to define two concerned, hundred which years that is Counsel also referred to the decision of SICHINGAJ, In the unreported case of BONIFACE JOSEPH SAKALA V ZAMBIA TELECOMMUNICATIONSCOMPANY LIMITED6 • He stated that although this decision is not binding on this Court, the Judge correctly stated the position of the law when he said: "I have carefully considered the provisions of the LIMITATIONACT the provisions relied upon 1939 and I am clear in my mind that provide for the extension of periods of limitation in cases where a Plaintiff alleges fraud, action was fraudulently concealed or where the action is for relief from the consequences of a mistake." or where right the of Counsel prayed that we allow this appeal and refer the matter back to the High Court for continued trial. J14 The gist of the Respondent's submissions in response is that the Appellant's ground of appeal is raising a completely new issue that was not canvassed before the lower Court, through her submissions or affidavit in opposition to the summons to determine a point of law. That in the Court below, the Appellant only canvassed the issue of fraudulent concealment of the nullification of the 1991/93 redundancy package under the 1998 judgment and never invited the Court to determine the effect of the letter of October 2004, written to her by the Respondent. That the issue now being raised being new, this Court should dismiss the ground of appeal on the basis that it was not raised in the lower Court. That, in any event, the Appellant was a senior legal practitioner who could not now be heard to claim that her cause of action was fraudulently concealed by the Respondent. Counsel submitted, in the alternative, that should this Court decide that the ground of appeal does not raise a new issue, the position of the Respondent is that the lower Court was on firm ground when it held that this matter was statute barred and that the time for purposes of the ACT started running in January, 2004 J15 because the Appellant, in her pleadings admitted that she was well aware of the 1998 JUDGMENT at the time. Counsel dismissed as misplaced, the proposition that only a full trial could determine when the Appellant became aware of the alleged fraud. In urging us to dismiss this appeal, Counsel cited the case of STELLA UPTON V WILLIAM DEREK WALKER7 where we held:- "But the statute of limitation is not concerned with merits. Once the axe falls it falls and a defendant who is fortunate enough to have acquired benefit of the Statute of Limitation is entitled, of course, to insist on his rights." Submitting in support to the cross appeal, Counsel for the Respondent stated that the lower Court's holding, that the matter was not res judicata, was a serious misdirection. He referred us to a portion of the judgment of the lower Court where the Judge stated that the complainant litigated on the mode of separation, but that when the parties disagreed on the redundancy formula, that raised a different cause of action. According to Counsel, this holding by the Judge was a serious misdirection as it went against decided cases on the subject of res judicata and multiplicity of actions. J16 The learned Counsel for the Respondent further submitted that the Appellant sued the Respondent and the matter went up to this Court on appeal. That the Court ordered that the Appellant should be put on a redundancy package as Assistant Director on the May 1993 scale. According to Counsel, this sca.1e included a.1lowancesto which the Appellant was entitled. He contended that the issue of the Appellant's redundancy package haVing been dealt with, the Appellant had the option to apply for review upon discovering that the said package had purportedly been nullified in subsequent proceedings. He referred us to among others, the case of KELVIN HANG'ANDU AND COMPANY (a Firm) V WEBBY MULUBISHA8 in which we stated:- "Once a matter is before Court in whatever place, if that process is properly before it, the Court should be the sole Court to adjudicate all issues involved, all interested parties have an obligation to bring all issues in that matter before that particular Court." Counsel submitted that the Appellant could have recovered in the earlier proceedings, that which she now seeks to recover, but for her own negligence in not applying for the redundancY package to be fully inquired into. According to Counsel, the parties, in the two proceedings are the same and the cause of action is the same. In responding to the Respondent's arguments in the cross appeal, the learned Counsel for the Appellant submitted that although the parties in the two proceedings were the same, the causes of action were different. Counsel submitted that the Appellant was denied an opportunity to recover from the "EARLIER PROCEEDINGS" because she had been misled by the Respondent. We have considered the submissions of Counsel and the Ruling appealed against. In its ground of appeal, the Appellant's contention, from what we can decipher, is that when she sought to rely on the 1998 judgment, the Respondent, through its letter of 6th October 2004, misled her that she was not in the group which was entitled to an enhanced package. That consequently, the six year limitation period under the LIMITATION ACT 19391 , could not start running from that period. It is common cause that when the Appellant separated from the Respondent, she was paid a redundancy package based on the 1991/92 redundancy scheme. That through the 1998 Judgment, the Supreme Court nullified the redundancies of JOACHIM GABRIEL CEPHAS BANDA & OTHERS1 on account that the law relating to redundancies at the time had been breached. Under J18 Section 108(1)(e)of THE INDUSTRIAL AND LABOUR RELATIONS ACT2 , there was an obligation for an employer to obtain the approval of the Works Council before declaring any employee redundant. The Court thus declared the redundancies in that case null and void for failure to obtain the approval of the Works Council. It observed:- "In the instant case, the Bank failed to comply with the law" The Court declined to grant the relief of reinstatement but instead ordered compensation of twelve months with all benefits to each of the Appellants in that case. The Appellant has relied on Section 26(b) of the LIMITATION ACT1 to support her contention that the period of limitation in this case, did not start running until she discovered the alleged fraud in 2010. We have reproduced the provisions of this Section above. We agree that on its proper construction, this Section operates to postpone or reset the clock for the limitation period. Where the Defendant fraudulently conceals the Plaintiffs right of action, time will start to run at the time of discovery of the fraud or when the Plaintiff could, with reasonable diligence, have discovered it. J19 For a Plaintiff to rely on Section 26 (b) of the Act, he or she must show that the right of action was concealed, and that it was concealed by fraud. The Court of Appeal, in England, echoed this position in the case of BEAMAN V ARTS LIMITED9 • In the words of SOMERVILLELJ:- "The plaintiff, therefore, must succeed, if at all, by showing that the right of action was concealed by the fraud of the defendant or their agents within the meaning of Section 26 (bl.» In the later case of CLARKE AND ANOTHER V WOOR,lo a builder was contracted in March, 1953, to build the Plaintiff a bungalow using, among others, multi-coloured facing bricks. After a while, some of the bricks he used began to flake and an architect called to survey the premises in 1961 found that these bricks were under baked and they were mixed with the good ones. The Court found that the Defendant was an experienced bricklayer who could have recognized the under baked bricks, but nevertheless, used them while the Plaintiffs were inexperienced in building matters and were relying on the Defendant for honest performance. The Court held that: "the Plaintiffs' right of action had been concealed by the Defendant in 1953, and the relationship between him and the Plaintiffs at that time was such that his conduct was unconscionable and amounted to concealment of their right of action by fraud within S.26(bl of the J20 The Plaintiff could not by reasonable LIMITATIONACT, 1939. diligence have discovered their right of action before they did in 1961 and, accordingly, it was not statute barred." In the case in casu, the Appellant had a right to question how her benefits under the redundancy package were calculated. Under Section 85 (6)of the INDUSTRIAL AND LABOUR RELATIONS ACT2 she had a right to demand that the 1998 Judgment should apply to her if she felt that she was affected by it. The issue in this case, however, is whether she commenced her action within the period allowed by the ACT. The learned Counsel for the Respondent has described the Appellant's ground of appeal as misleading in that it invites this Court to ascertain the effect of the letter of 6th October 2004. According to Counsel, what was canvassed in the Court below was the issue of fraudulent concealment of the nullification of the 1991/92 redundancy package under the 1998 judgment and not the effect of the letter of October 2004. We find that the Appellant did allude to the letter of October 2004 in her statement of claim and it is relevant to the determination of the issue as to whether there was fraudulent concealment of the 1998 judgment in this case. J21 Counsel for the Appellant has advanced the argument that the learned trial Judge did not properly evaluate the Respondent's letter of 6th October, 2004. That this letter was not only misleading but also affected the Appellant's right to pursue the matter. She has described the Respondent's conduct as unconscionable and dishonest. We have examined the letter in question. In the relevant parts it states as follows:- "6th October, 2004 Ms Prisca M Nyambe International Criminal Tribunal for Rwanda Arusha International Conference Centre P. O Box 6016 Arusha TANZANIA Dear Ms Nyambe RE: SEPARATIONFROMBANKOF ZAMBIA:YOURSELF "Thank you for your two letters in connection with this matter. We regret the delay in reverting to you. In your letters under reference you requested us to review your separation package in light of the review of the package of the group of employees 1994/95 redundancy programme. from the Bank under separated the We note from our records that, although your case was determined by the Courts after 1994, your separation occurred and was deemed to have occurred under the 1991/92 redundancy programme. We hasten to add that the two redundancy programmes had separate redundancy packages. Accordingly, you do not qualify for this review which was only applicable to the 1994/95 retrenchees. J22 This being the case, we are unable to review your separation package as the review alluded to did not apply to those who were separated under the 1st redundancy process ... " This letter was in response to the Appellant's letter dated 8th January, 2004 where she presented herself as being part of the group that was declared redundant in 1994 and whose separation packages were being reviewed. In the relevant part of the letter she stated:- "I wish to advise that 1 am in fact one of the group that was separated in 1994. My separation occurred by way of Court Judgment which you will have on your file." What was in issue in the litigation that the Appellant invoked against the Respondent, was her mode of separation. She contested the Respondent's position that she be deemed to have resigned when in fact she did not. The Court decided that she be put on a redundancy package as Assistant Director on May 1993 salary scale. In the letter of 6th October, 2004, the Respondent stated its officialposition to the request by the Appellant to be included in the 1994/95 redundancy programme. Can this response be said to be unconscionable? The learned authors of BLACK'S LAW DICTIONARY 8th EDITION define the word "unconscionable" as- J23 "(Of a person) having no conscience, unscrupulous; (Of an act or transaction) showing no regard for conscience, affronting the sense of justice, decency or reasonableness" We have found nothing in the letter of 6th October, 2004 to suggest that the Respondent was deliberately hiding any facts or acted in an unscrupulous manner. The letter of 6th October, 2004 correctly stated the position that the Appellant's separation was deemed to have occurred under the 1991/92 redundancy programme. The Appellant's contention has been that the 1991/92 programme was declared null and void and hence she sought to be paid an enhanced package in accordance with the 1998 judgment. The Bank, in its response, was categorical that the Appellant's separation 'occurred and was deemed to have occurred under the 1991/1992 redundancy programme', and that she did not therefore, qualify to have her package reviewed to that applicable to 1994/ 1995 retrenchees. In her amended statement of claim, the Appellant referred to the 1998 Judgment. She averred in paragraph 12 of the said statement of claim that:- "12. In January 2004 the Plaintiff who was then based abroad wrote to the Defendant asking them to review her package in line with the aforesaid Supreme Court Judgment but to no avail." J24 J It was from this averment, in the Appellant's amended statement of claim, that the Judge concluded that by her own reckoning, the Appellant was aware of the 1998 Judgment by January, 2004. Her contention that the 1998 judgment was fraudulently concealed from her flew in the teeth of this statement. We cannot, therefore, fault the Judge for this finding, as it is anchored on the Appellant's own statement. In the circumstances, the argument that the Respondent concealed the existence of the 1998 Judgment cannot hold. We find that there was no concealment by fraud within the meaning of Section 26 (bl of the LIMITATION ACTi . The learned Judge in the court below also considered the Appellant's contention that the matter was under discussion from 2004 to 2010 when the Respondent finally denied the Appellant's claim on 13th September, 2010. The Judge agreed with the learned authors of HALSBURY'S LAWS OF ENGLAND3 , VOLUME 28, that:- "The mere fact that negotiations have taken place between a claimant and a person against whom a claim is made does not debar the Defendant from pleading a statute of limitation, even though the negotiations may have led to delay and caused the claimant not to bring his action until the statutory period had passed." J25 .. , According to the Judge, the facts in casu precluded the Appellant from benefitting from any delay that may have been caused by negotiations. Having been aware of the 1998 Judgment in 2004, we agree with the Court below that the cause of action in this case arose in January, 2004, after the Appellant became aware of the 1998 judgment. By the time that the Appellant was filing her Writ of Summons on 18th March, 2011, the claim was statute barred. The Respondent properly invoked the statute of LIMITATION 19391 . As we stated in the case of STELLA UPTON7 , this statute is not concerned with merits. We, therefore, find no merit in the Appellant's appeal and it is dismissed. Coming to the cross appeal, the Respondent is contending that the Court below erred in law and fact, when it held that this matter was not res judicata. It is the Respondent's submission that the Appellant's claim in this case could have been dealt with by the Court in the earlier proceedings brought against the Respondent by the Appellant. We pronounced ourselves on the principle of res judicata in the case of BANK OF ZAMBIA V JONAS TEMBO AND OTHERS2 . J26 " , We held that for the defence of res judicata to succeed, it is necessary to show, not only that the cause of action was the same, but also that the Plaintiff had an opportunity of recovering that what he seeks to recover in the second action. The rationale for the defence is not farfetched. It is in the public interest that there is finality to litigation and that multiplicity of actions is not encouraged. In this case, the earlier litigation was in the IRC, through a complaint filed under Section 85(4) and 108(2) of THE INDUSTRIAL AND LABOUR RELATIONS ACT2 • The Appellant contested the mode of separation from the Respondent after she was deemed to have separated from the Bank by way of resignation. She sought a redundancy package and the Court decided in her favour; and ordered that she be put on a 'redundancy package as Assistant Director on May 1993 salary scale'. In the case in casu, the Appellant's claim was for an 'order for recomputation and payment of enhanced benefits pursuant to the Supreme Court judgment to take into account all allowances and other conditions enjoyed." According to the statement of claim, the Supreme Court judgment referred to J27 . " . involved former employees who had taken the Respondent to Court over the 1991/92 Redundancy Scheme. The matter went up to this Court and we delivered our judgment in 1998. By that time, the Appellant had already concluded her action in the Industrial Relations Court and the import of the Supreme Court Judgment was not in issue. We are, therefore, inclined to agree with the learned Judge in the Court below when he found that there was no contention regarding the formula to be used in calculating the redundancy package when the Appellant first took her case to the Industrial Relations Court in 1994. The Appellant could not have raised the issue of the 1998 judgment then, because it was not in existence. Clearly, the defence of res judicata could not succeed. The cross appeal is therefore dismissed. Both appeals having failed, we order that in this Court, each party will bear its own costs. The order as to costs in the court below is undisturbed. , ror--=~==--., I. C. Mambilima CHIEF JUSTICE J28 ... , . ) :JiJ! E. M. H ~U SUPREME COURT JUDGE J29