Yvonne Nenga Muwowo v Lusaka Water and Sewerage Company Limited (CAZ Appeal No. 211/2021) [2023] ZMCA 391 (26 October 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ Appeal No. 211/2021 BETWEEN: AND YVONNE NENGA MUWOWO ~G ISTRyjA-P LLANT \l\l'ollC OF lA,\.f OF A~ ~~1 *~l, 7qz ·O. 8oxsoo67p;., LUSAKA WATER & SEWERAGE COMPANY RESPONDENT LIMITED CORAM : Chishimba, Sichinga and Ngulube JJA On 22°d September, 2023 and 26th October, 2023 For the Appellant : Mr. F. S Kach amba of Messr s . EBM Chambers. For t h e Respondents : Mrs C. B Sikazwe In-House Counsel. JUDGMENT Chishimba JA, delivered the Judgment of the Court. CASES REFERRED TO: 1) Guardall Security Grou p Limited v Reinford Kabwe CAZ Appeal No. 44 of 2019 2) GDC Logistics Zambia Limited v Joseph Kanyanta & Others SCZ Appeal No. 144 of 2014 3) Citib ank Zambia Limited v Su hayl Dudhia SCZ Appeal No. 6 of 2022 LEGISLATION REFERRED TO: 1) The Industrial and Lab our Relation s Court Rules, Chapter 269 of the Laws of Zambia 2) The Industrial and Labour Relatj(;,~ ~ / , coUl!l '- r , ct No. 8 of 2008 ; \ i'PE.,{ J2 1.0 INTRODUCTION 1.1 This appeal is against the ruling of the Hon. Mr. Justice Egispo Mwansa dated 27th May, 2021 in which he dismissed the appellant's complaint on the basis that the court lacked jurisdiction. 2.0 BACKGROUND 2.1 On 21 st August, 2018, the appellant commenced an action against the respondent by way of complaint in the Industrial Relations Division (herein after 'the IRD') seeking several reliefs including damages for constructive dismissal; a declaration that she be deemed to have left employment on early separation in accordance with clause 27 .1. 7 (a) and (c) of her conditions of service; calculation of her total package for early retirement; payment of the said package and interest. 2.2 The respondent filed its answer and affidavit in support of answer on 8 th October, 2018. 2.3 The record shows that trial commenced on 26th March, 2020 and the appellant rendered her testimony. The matter was subsequently adjourned to 4 th August, 2020. On 16th J3 February, 2021 trial continued and was adjourned to 1st June, 2021 for the respondent to open its defence. 2.4 Subsequently, the respondent on the 18th of May 2021 filed a notice of motion to dismiss matter for want of jurisdiction pursuant to rule 33 of the Industrial and Labour Relations Court Rules, Chapter 269 of the Laws of Zambia and section 19 of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008. The basis for the application was that the matter had not been disposed of within one year from the day the complaint was presented before the court. 3.0 ARGUMENTS IN THE COURT BELOW 3.1 In the court below, the respondent cited section 85(3)(a) and (b)(i) and (ii) of the Industrial and Labour Relations Act as amended, which provides that: (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- J4 (tJ upon application by the complainant or appltcant, 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. (emphasis added) 3.2 Learned Counsel for the respondent submitted that the provision is couched in mandatory terms requiring the IRD to dispose of a matter within one year from the day on which the complaint was presented. He cited the case of Guardall Security Group Limited v Reinford Kabwe 111 in which we held that section 85(3)(b)(ii) of the Industrial and Labour Relations Act is couched in mandatory terms leaving no room for a judge to use his discretion to dispose of the matter outside the one year period from the date of presentation of the complaint or application. The Court of Appeal, further held therein that failure to act within the set time limit robs the court of jurisdiction to take any further action in that matter. 3.3 The respondents sought dismissal of the matter and or that the record be remitted for rehearing before another judge. JS 4.0 DECISION OF THE COURT BELOW 4.1 In its ruling, the court below accepted that the matter should have been concluded within one year in line with the Provisions of section 85(3)(b)(ii) of the Industrial and Labour Relations Act as interpreted in the Guardall Security Group Limited case. The lower court held that it had no jurisdiction to hear the matter more than one year after it was filed dismissed the case with costs in the cause. 5.0 GROUNDS OF APPEAL 5.1 Aggrieved with the ruling of the lower court, the appellant appealed, raising two grounds structured as follows: 1. The lower court misdirected itself in mixed law and fact by dismissing the matter for lack of jurisdiction; and 2. The lower court misdirected itself in mixed law and fact to have failed to remit the record/case for re-allocation for re hearing before another Judge. 6.0 APPELLANT'S HEADS OF ARGUMENT 6.1 In support of her appeal, the appellant filed the heads of argument dated 13th September, 2021 in which the grounds of appeal were argued together. 6.2 The learned State Counsel submitted that as at 26th March, 2020 when time trial commenced, two years and five months J6 had passed or elapsed from 21 st August, 2018 when the complaint was filed. Pursuant to section 85(3) of the Industrial and Labour Relations Act as amended, the court lost jurisdiction to hear the matter on 21 st August, 2019. The loss of jurisdiction was not due to the fault of the complainant as the date of commencement of trial i.e 26th March, 2020, was set by the court. This was way beyond 21 st August, 2019 when one year elapsed. State Counsel further submitted that even the respondent cannot be faulted because the delay was caused by the court. 6.3 That since the delay was caused by the court, the correct interpretation of section 85(3)(b)(ii) of the Act and the Guardall Security Group Limited case, was that only Hon. Justice Mwansa who sat as a judge in the case, lost jurisdiction over the matter. There being no penalty provided in section 85 of the Act for the breach caused by the Judge, it is only equitable and fair for the lower court to have surrendered the case to the Judge-in-charge for re-allocation to another judge than dismissing it. This would have been in line with the guidance of this court in the Guardall Security Group Limited case. J7 7.0 RESPONDENT'S HEADS OF ARGUMENT 7 .1 The learned in-house Counsel for the respondent filed heads of arguments on 6 th October, 2021. In response to the holding of the Supreme Court in the cited case of Citi Bank Zambia Limited, (supra) the respondent abandoned its heads of argument. Further, the respondent conceded the appeal and did not oppose it. 8.0 DECISION OF THE COURT 8.1 We have considered the appeal, the heads of arguments, and authorities cited by learned Advocates on record. It is not in dispute that this matter was filed in the Industrial Relations Division on 18th August, 2018 and that trial commenced on 26th March, 2020 more than one year later. 8.2 In ground one and two, the appellant argues that the court below misdirected itself in law in dismissing the matter for lack of jurisdiction and that it ought to have remitted it for re-hearing. In terms of section 85(3)(b)(ii) of the Industrial and Labour Relations Act, the matter ought to have been heard and concluded within one year from the date of complaint. The appellant placed reliance on our decision in the case of Guardall Security Group Limited v Reinford J8 Kabwe 111 where we declared the judgment of the lower court delivered more than one year from the date the matter was commenced, null and void for want of jurisdiction and set it aside. We further remitted the record for re-hearing before another judge of competent jurisdiction. 8.3 The above Court of Appeal decision was overruled by the Supreme Court in the case of Citibank Zambia Limited v Suhayl Dudhia 131 in which the Apex Court, applying the purposive rule of interpretation of statutes, held as follows: 5.36 We think that a purposive interpretation of section 85(3)(b)(ii) of the Industrial and Labour Relations Act means that the court does not lose jurisdiction after one year. To hold otherwise would, in our view, create a result which is absurd in light of the intention of Parliament to curb delays in concluding matters of an industrial relations nature. 5.37 A purposive interpretation would also, in our view, be in keeping with the general tone of the Industrial and Labour Relations Act which in section 85(5) enacts that the main object of the court is to do substantial justice between the parties before it. 8.4 The Supreme Court went on to state at paragraph 5.50 that: We may also add that the one year rule {for expeditious disposal of industrial and labour disputes) was not intended to lock out litigants who, through no fault of their own, could not have their cases detennined within one tear. J9 8. 5 The apex court concluded that the lower court which rendered the decision more than one year after the prescribed period did not lose jurisdiction to determine the matter. 8.6 Following the Supreme Court decision, we hold that the court below misdirected itself in law and fact by holding that it had lost jurisdiction to hear and determine the matter one year after it was commenced. The lower court ought to have proceeded to hear and determine the matter accordingly notwithstanding the fact that more than one year had elapsed since the complaint was filed. We find merit in ground one and two. 9.0 CONCLUSION 9.1 We reiterate that the court below had jurisdiction to hear and determine the complaint/matter after the lapse of one year from date of commencement. For the above reasons, we uphold the appeal. We accordingly remit the matter for re hearing before the same court. 9.2 In respect of costs, this being an action in the Industrial Relations Division, no order of costs can be awarded in terms of Rule 44 (1) of the Industrial and Labour Relations Court J10 Rules in the absence of malafides on the part of the appellant in the prosecution of this appeal. F. M. Chishimba COURT OF APPEAL JUDGE P. C. M. Ngulube COURT OF APPEAL JUDGE