Daka and Ors v Railway Worker's Union of Zambia (Appeal 52 of 2003) [2005] ZMSC 14 (7 June 2005)

IN THE SUPREME COUR OF ZAMBIA HOLDEN AT NDOLA APPEAL NO. 52/2003 * BETWEEN: STEPHEN DAKA AND OTHERS APPELLANTS AND RAILWAY WORKERS UNION OF ZAMBIA 1ST RESPONDENT AND HONEST KAL1MINA ND AM ANA 2nd RESPONDENT CORAM: LEWANIKA, DCL, MAMB1L1MA, JS, MONTH AL! AJS On 2nd September, 2003 and 7,h June, 2005 For the Appellant: For the Is1 Respondent: For the 2nd Respondent: In Person 1 KABUKA of J. Kabuka & Co. No appearance. JUDGMENT LEWANIKA DCJ, delivered the judgment of the Court. At the time when we heard this appeal we were informed by Counsel i for the 1st Respondent that the 2nd Respondent had passed on and that the appeal against him had abated. This appeal is against the decision of the Industrial Relations Court which held that the Appellants' action against the Respondents was statute barred. The facts of the matter are not in dispute and (hey arc that the Appellants were employees of the 1st Respondent who were retrenched between February, 1995 and 15111 March, 1995. On 7th January, 2002 they Hied a complaint pursuant to Section 85 of the Industrial and Labour Relations Act. Counsel for the 1st Respondent had raised a preliminary objection in the court below that the complaint filed by the Appellants was statute barred f by virtue of Sections 2 and 23 of the Limitation Act, 1939. On the other hand, the Appellants argued that Section 85 of the Industrial and Labour Relations Act did not prescribe a time limit within which actions can be commenced and that the limitation of Act 1939 does not apply to proceedings in the Industrial Relations Court. The Appellants have filed ten grounds of appeal, which we do not intend to reproduce here as they are on record. As we see it, the only issue to be determined is whether or not the Limitation Act applies to the proceedings in the Industrial Relations Court and in particular those instituted under Section 85 of the Industrial and Labour Relations Act prior to its amendment by Act No. 30 of 1997. We are indebted to Counsel for the Ist Respondent for his submissions which have been of great assistance to us and we have also considered the submissions of the Appellants. fhe Limitation Act, 1939 applies to this country by virtue of the British Acts Extension Act, Cap 10 of the Laws of Zambia. Sections 2 and 32 of the Act prescribe a limitation period of six years for bringing a civil action where there is no period prescribed by some other law. Section 85 of the Industrial and Labour Relations Act did not prescribe any limitation period prior to the amendment brought up by Act No. 30 of 1997. The Appellants have argued that the word "action" as defined under Section 31 of the Limitation Act, 1939 does not include proceedings in the Industrial Relations Court. But we note that 'action' to which the Act applies is defined under Section 31 of the Limitation Act to include "any proceeding in a court of law including an ecclesiastical court" We also note that "court" is described under Section 3 of the Industrial and Labour Relations Act as the Industrial Relations Court which is part of the Judicature of the Republic established under Article 91(1) of the Constitution of Zambia, and we have no doubt in our mind that a complaint lodged or filed in the Industrial Relations is a proceeding or "an action" in a court of law and is therefore amenable to the provisions of the Limitation Act, 1939. The Appellants were retrenched between February and 15th March, 1995. They had written letters to the 2nd Respondent dated 13th July, 1995, 26,b October, 1996 and 19111 February, 1999 appearing on pages 108, 110, and 112 threatening to institute legal proceedings against the 2nd Respondent who was General Secretary of the Railway Workers Union of Zambia following their retrenchment. Yet they did not file a complaint in the Industrial Relations Court till 7th January, 2002, some seven years after they had been retrenched. We are satisfied that the court below was in firm ground in holding that the Appellants had slept on their rights by not instituting proceedings within the statutory period of six year from the time that the cause of action arose. We find that the Appellants’ action was statute barred and find no merit in the appeal, which we dismiss accordingly. Owing to the circumstances of the Appellants, we make no order as costs. D. M. Lewanika DEPUTY CHIEF JUSTICE I. M. C. Mambilima SUPREME COURT JUDGE S. S. K. Munthali ACTING SUPREME COURT JUDGE 4