Zacharia Zulu v Mtn Zambia Limited (2020/HP/0108) [2022] ZMHC 107 (31 March 2022)

Rl 2020/HP/0108 IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ZACHARIA ZULU AND MTN ZAMBIA LIMITED DEFENDANT BEFORE HON MRS JUSTICE S. KAUNDA NEWA IN CHAMBERS THIS 31 st DAY OF MARCH, 2022 For the Plaintiff For the Defendant Mr Paul Namakando, Mesdames M. Wamunyima Legal Practitioners Mr M. J Chituplia Gill & Seph Advocates RU LI NG CASES REFERRED TO: 1. McArdie vEgan 1933 ALLER 611 2. Hollington v F. Hewthorn & Company Limited 1943 1 KB 587 3 . R. B Policies at Lloyd's v Butler 1950 1 KB 76 4 . Anderson v Coleman 1981 56 Cal 124 5 . Attorney General v Marcus Achiume 1983 ZR 1 6 . Kabwe Transport Company Limited v Press Limited (1975) Limited 1984 ZR 43 7. Mohamed A. Omar v Zambia Airways Corporation Ltd 1986 ZR 23 8. Corley v Jacobs 820 S . W 2d 668 (1991) 9. Kalyoto Muhalyo Paluku v Granny's Bakery Limited, Ishaq Musa, Attorney General, and Lusaka City Council 2006 ZR 119 10. West Gengal State Electricity Board v Dillip Kumar Ray AIR 2007 SC 976 11. Kumar v Mutale Appeal No 35 of 2011 12. Levy Hamalala and Justin Hachulu v Attorney General 2007/HP/344 [2012} ZMHC 81(13 December, 2012) ---- R2 13. Shoprite Holdings Limited and Shoprite Checkers (Pty) Limited v Lewis Chisanga Mosho and Lewis Nathan Advocates (Sued as a firm) SCZ No 86 of 2013 14. Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture (suing as a.firm) SCZ/8/52/2014 15. Vangelatos and Vangelatos v Metor Investment Limited, King Quality Meat Products and Poilou SCZ No 35 of 2016 16. African Banking Corporation Zambia v Mubende Country Lodge Appeal No 116/2016 17. Zambia Revenue Authority v Bruce Kaemba SCZ No 158 of 2016 18. U Rest Foams Limited v Puma Botswana (PTY} Limited and Colourfast Textile Printers (PVT) Limited Appeal No 222/2016 19. Mahenshkumar Sombhai Patel and Himaanshu Patel v Freeze-O Matic Patel and Ajoy Patel SCZ No 3 of 2017 20. Jonny Moffat v Orbin McPeake et al No. W2016-01706 COA-R3-CV (Tenn. ct. App. Oct. 10, 201 7) 21 . Mirriam Chella v Pep Stores Limited 2018/HP/1067 22. Crossland Mutinta and Seedat v Chipanda SCZ No 53 of 2018 23. Standard Chartered Bank (Z) Plc v Celine Mena Nair Appeal No 14 of 2019 24. John Sangwa v Sunday Bwalya Nkonde SC Appeal No 2/2021 LEGISLATION REFERRED TO: 1 . The Rules of the Supreme Court of England, 1999 Edition 2. The Limitation Act, 1939 OTHER WORKS REFERRED TO: 1. Black's Law Dictionary, 9 t h Edition, by Bryan A. Garner, Thomas Reuters, 2009 2. Merriam-Webster Law Dictionary 1. INTRODUCTION 1.1 This is a n appeal against the Ruling of the District Registrar , which was made on 18th August, 2021, dism issin g the action for b eing statute barred. The application subject of the appeal was made pursuant to Order 14A and Order 33 Rules 3 and 7 of the Rules of R3 the Supreme Court of England, 1999 Edition as read together with Section 2 (1) of the Limitation Act, 1939. 1.2 The application was supported by an affidavit, as well as Skeleton Arguments and a list of authorities, and was opposed by an affidavit in opposition and a list of authorities and Skeleton Arguments. The Plaintiff also filed submissions. I wish to state right at the outset that an appeal from the Registrar, who includes a Deputy Registrar and a District Registrar, to a Judge at chambers is by way of re-hearing. 1.3 In this regard, the case of Mohamed A. Omar v Zambia Airways Corporation Ltd (7J held that; "An appeal to a judge in Chambers is treated as an actual rehearing of the application and the judge should have regard to the contents of supplementary affidavits". 2 . BACKGROUND 2.1 The background leading to the appeal, is that the Plaintiff commenced these proceedings on 20th January, 2020 by way of Writ of Summons claiming; z. Damages for unlawful termination of employment; n. Special damages as outlined in the statement of claim; m. Damages for malicious prosecution; R4 w . Damages for adverse publicity and defamation of character as a consequence of the malicious prosecution; V. Interest on the sums found due; vr. Costs; vzz. Any other relief the Court may deem fit. 2.2 On 3rd February, 2020, the Defendant entered appearance and filed a defence, and on the same day, filed the application subject of this appeal. 3. AFFIDAVIT FILED IN SUPPORT OF THE APPLICATION 3.1 Mildred Chica, the Head Finance at the Defendant, d eposed to this affidavit, stating that the Plaintiffs action arises from the time of his employment with the Defendant. She averred that the Plaintiff was employed by the Defendant on 1st March, 2010, and was confirmed as Strategic Channels Manager on 30th June, 20 10 . The d eponent further stated that the Plaintiffs contract of employment was terminated on 25th June, 2013, when he resigned as shown on the letter exhibited as 'MC'. 3.2 It was also stated that a period of over six (6) years had elapsed from 25 th June, 2013, when the Pla intiffs contract of employment was terminated to when he commenced the proceedings on 20th January, 2020. RS 4 . SKELETON ARGUMENTS AND LIST OF AUTHORITIES IN SUPPORT OF THE APPLICATION 4.1 Citing the case of Mahenshkumar Sombhai Patel and Himaanshu Patel v Freeze-O-Matic Patel and Ajoy Patel f1 9J as auth ority for bringing the application pursuant to Order 14A of the Rules of the Supreme Court of England, 1999 Edition, the Defendant argued that the Supreme Court in the said case, referred to the editorial notes in the Order, as stating that matters may be disposed of on a point of law without a full trial where it appears to the Court that such determination will finally determine the proceedings or an issue therein. 4.2 It was stated that the Supreme Court held that; "The reason for Order 14A is essentially to save on time and costs as there is no point in prolonging proceedings when no matter what, a claim is bound to fail for want of cause of action". 4.3 The Defendant a lso relied on the case of Kalyoto Muhalyo Paluku v Granny's Bakery Limited, Ishaq Musa, Attorney General, and Lusaka City Council f9J where the Supreme Court with regard to Order 14A of the Rules of the Supreme Court of England stated that; R6 "It is well settled in law that a preliminary issue can be raised at any stage of the proceedings, even at the outset of the case. An action can be determined of either in part or in whole if the preliminary point is upheld and especially if it goes to the root of the matter, the subject of the proceedings". 4.4 The provisions of Order 33 Rules 3 and 7 of the Rules of the Supreme Court of England were a lso reiterated in making the application. 4 .5 On the basis for making the application, the Defendant argued that the Plaintiffs contract of employment was terminated on 25th June, 2013, and he instituted this action on 20th January, 2020, more than six years after the contr act of employment was terminated. The definition of limitation period in Black's Law Dictionary, 9 th Edition, by Bryan A. Garner, Thomas Reuters, 2009 was ref erred to, which is; "A statutory period after which a lawsuit cannot be brought into Court-Also termed limitations period; limitation period; limitation of action". 4.6 The Defendant also relied on Section 2(1) of the Limitation Act, 1939 as providing that actions founded on simple contract shall not be brought after the expiration of six (6) years from the date on which the cause of action R7 accrued . Reliance was placed on the definition of simple contract in Black's Law Dictionary which is; "A contract other than one under seal, a recognizance, or a negotiable instrument that derives its force not from the observance of formalities but because of the presence in the transaction of certain elements that are usually present when people make promises with binding intent. An informal contract may be made with or without a writing. Most modern contracts are informal". 4.7 The Defendant stated that the Supreme Court in the case of Mahenshkumar Sombhai Patel and Himaanshu Patel v Freeze-0-Matic Patel and Ajay Patel f19J r eiterat ed that the action which was founded on simple contract was statute barred, as it was commenced after the expiration of six years. The case of R. B Policies at Lloyd's v Butler f3J was relied on, as having held that; "It is a policy of the Limitation Acts that those who go to sleep upon their claims should not be assisted by the Courts". 5 . AFFIDAVIT IN OPPOSITION 5.1 The Plaintiff as deponent of this affidavit, stated that h is commencing th e legal proceedings arose from crimina l R8 proceedings instigated by the Defendant, where he underwent trial from 2014 to 2018, when the Court acquitted him, as seen on the Notice of Acquittal exhibited as 'ZZ l '. He denied having resigned from the Defendant's employment on 25th June, 2013 as alleged, as the same was declined in the letters exhibited as 'ZZ2-ZZ4'. 5.2 He further deposed that he could not commence proceedings for wrongful termination as he was still being prosecuted on the criminal allegations which only terminated on 7 th September, 20 18, when the Judgment was delivered. 5 .3 His position was that only Two (2) years had elapsed from the time the Judgment in the criminal proceedings was delivered to when he instituted these proceedings, and that his claims accrued after the Judgment was delivered. 6. SKELETON ARGUMENTS AND LIST OF AUTHORITIES IN OPPOSITION 6.1 The Plaintiff argued that at the instigation of the Defendant, he was charged with various offences for which he appeared before the Subordinate Court and Judgment was delivered on 7 th September, 20 18. The case of Levy Hamalala and Justin Hachulu v Attorney General f12J was relied on, with regard to the elements that constitute malicious prosecution. R9 6. 2 Further r eliance was placed on the case of Jonny Moffat v Orbin McPeake et al f2 0J as having held that an action founded on m alicious prosecution accrues at the time the Judgment on the underlying action is entered in the trial Court. 6.3 The argument by the Plaintiff was that based on the above authorities, the cause of action in malicious prosecution only accrued when he was acquitted in the Judgment dated 7 th September, 20 18, and th e action is therefore not statute barred. Citing the cases of Kumar v Mutale f11J and Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture (suing as a firm) f14J, the Plaintiff argued that his claims should be heard and d etermined on the merits, in the interests of justice. 7. AFFIDAVIT IN REPLY 7 . 1 The averments in the affidavit in r eply also deposed to by Mildred Chica, wer e that the Defendant maintained that the Plaintiffs cause of action 1s premised on his employment contract with the Defendant, and he cannot rely on the outcome of the criminal proceedings in civil proceedings. The d eponent also maintained that this action has been commenced more than six (6) years after th e Plaintiffs contr act of employment was terminated. RlO 7 .2 Sh e a lso stated that the criminal proceedings are separate from civil p r oceedings and therefore, the action is statute barred. 8 . PLAINTIFF'S SUBMISSIONS 8 . 1 In these submissions, th e Plaintiff stated that the argument by the Defendant that the notification of acquittal exhibited to the Plaintiffs affidavit in opposition was irregular, illegal and contrary to the established position of the law as set out in the case of U Rest Foams Limited v Puma Botswana (PTY) Limited and Colour fast Textile Printers (PVT) Limited (1 8J, could not stand, as their position was that the Plain tiff was in order to rely on the notification of acquittal despite it emanating from criminal proceedings. 8 .2 The Plaintiff went on to further argue that in that matter, the case of Kabwe Transport Company Limited v Press Li mited (1975) Limited (6J was noted as having referred to the case of Hollington v F. Hewthorn & Company Limited (2J where it was held that certificate of conviction could not be tendered as evidence in civil proceedings, the rationale being that the criminal proceedings were not relevant, and that they were "res alias inter acta". 8.3 The Plaintiff referred to the definition of "res alias inter acta" in Merriam-Webster Law Dictionary as being; Rll "Something transacted between other parties ... matters not involving the same parties as those in litigation". 8.4 The view taken by the Plaintiff was that in this matter, the notification of acquittal is not res inter alios acta, but it is of utmost importance in proving the claim of malicious prosecution against the Defendant, and it is a key element in proving the tort. 9. SUBMISSIONS AT THE HEARING 9.1 At the hearing on 23rd February, 2022 , Counsel for the Plaintiff asked for leave to file a further affidavit and Counsel for the Defendant equally asked for leave to file a further affidavit, which applications were granted. Counsel for the Plaintiff was directed to file the further affidavit by 3 rd March, 2022, while Counsel for the Defendant was given up to 14 th March, 2022, to file their affidavit in reply and thereafter, I would deliver my Ruling. 10. FURTHER AFFIDAVIT BY THE PLAINTIFF 10.1 This affidavit was deposed to by the Plaintiff, stating that he was dissatisfied with the decision of the District Registrar, on two grounds, namely, that the District Registrar misdirected himself in law and fact when he held that the Plaintiff was prosecuted by the State, and not by the Defendant, and as such the claims for malicious • R12 prosecution ought to have been directed at the Drug Enforcement Commission (DEC) through the Attorney General, notwithstanding that the prosecution was instigated by the Defendant. 10.2 The second ground was that the District Registrar erred in law and in fact, when he found that the action not having been commenced within six (6) years of the Plaintiff's contract of employment being terminated was statute barred, notwithstanding that the Plaintiff was acquitted of the charges on 7 th September, 2018. 11. SUBMISSIONS BY THE PLAINTIFF 11. 1 In respect of the first ground of appeal, the case of Levy Hamala and Justin Hachulu v The Attorney General (121 was reiterated, with regard to the elements of malicious prosecution. The case of West Gengal S t ate Electricity Board v Di llip Kumar Ray AIR (lOJ was stated as having held that a judicial proceeding instituted by one against the other, from wrongful or improper motive and without probable cause to sustain it, is malicious prosecution. 11.2 On when an action founded in malicious prosecution can be sustained, the decisions in the cases of Jonny Moffat v Orbin McPeake et al r201 and Corley v Jacobs (81 were reiterated. The Plaintiff went to argue that the Defendant did not have reasonable and probable cause to prosecute him, hence the said prosecution was malicious, and R13 reliance was placed on the case of McArdie v Egan (lJ as well as the case of Gaynor v Cowley, in arguing that the Defendant acted maliciously. 11.3 On ground two, the submission was that the Plaintiff was prosecuted at the instigation of the Defendant, and the cases of Jonny Moffat v Orbin McPeake et al (2 0J and Anderson v Coleman (4) were reiterated. 12. AFFIDAVIT IN REPLY BY THE DEFENDANT 12.1 This affidavit was deposed to by Wana Mukuma a Legal Assistant in the employ of the Defendant, who averred that the appeal has no prospects of success. 13. DEFENDANTS' SUBMISSIONS IN OPPOSITION 13.1 In the submissions filed on 14th March, 2022, and in response to ground two of the appeal, the Defendant r elied on the case of Shoprite Holdings Limited and Shoprite Checkers (Pty) Limited v Lewis Chisanga Mosho and Lewis Nathan Advocates (Sued as a firm) f 1 3 ) stating that the Supreme Court in that case guided that there is no bar to civil and criminal proceedings involving the same parties proceeding concurrently. Therefore, the argument that the Plaintiff could only commence this action after his acquittal is misleading and devoid of merit, and the claim for damages for wrongful termination of employment is statute barred. R14 13 .2 The case of Mahenshkumat Somabhai Patel and Himanshu Patel v Freeze-O. Matic Patel and Ajoy J. Patel fl9J was reiterated, and the cases of Mirriam Chella v Pep Stores Limited f2 1J and Zambia Revenue Authority v Bruce Kaemba f17Jwer e also r elied on in that regard. 13.3 As regards the first ground of appeal, the case of Vangelatos and Vangelatos v Metor Investment Limited, King Quality Meat Products and Poilou f15J was relied on, stating that in that matter, the Court held that where a Court takes it upon itself to exer cise jurisdiction which it does not possess, the decision amounts to nothing. It was argued that the case of Crossland Mutinta and Seedat v Chipanda f22J affirm ed the decision in the above case. 13.4 Relying on the case of Attorney General v Marcus Achiume f5J, which held that an appellate Court will not r everse findings of fact made by a trial Judge unless it is satisfied that the same were perverse or were made in the absence of any relevant evidence, the Defendant stated that the Plaintiff had not shown that the District Registrar erred in law or in fact . 14. DECISION OF THIS COURT 14.1 I have considered the application. It was brought pursuant to Order 14A and Order 33 Rules 3 and 7 of the Rules RlS of the Supreme Court of England, 1999 Edition. Order 14A provides as follows; "(l) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that - (a) such question is suitable for determination without a full trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. (2) Upon such determination the Court may dismiss the cause or matter or make such order or Judgment as it thinks just". 14.2 Order 33 Rule 3 of the said Rules of the Supreme Court of England on th e other hand states that; "The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the R16 manner in which the question or issue shall be stated". 14.3 Rule 7 of Order 33 provides that; "If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such Judgment therein as may be just". 14.4 In terms of the use of Order 14A of the Rules of the Supreme Court of England, 1999 Edition in raising preliminary issues, the Supreme Court in the case of African Banking Corporation v Mubende Country Lodge f16J guided that in Order for an application to be launched under Order 14A, the requirements of Order 14A/2/3 of the Rules of the Supreme Court, have to be complied with, being the giving of notice of intention to defend. This they said, is the filing of a memorandum of appearance accompanied by a defence. 14. 5 This position was reiterated in the case of John Sangwa v Sunday Bwalya Nkonde SC f24J where the Supreme Court held that; R17 "In the not too distant past, we stated in the case of African Banking Corporation Limited v Mubende Country Lodge that an application under Order 14A of the White Book can only be made after the defence has been filed". 14.6 In th is matter, t h e record shows th at t h e Defen dant entered app earance and filed a defence on 3 rd February, 2020 . On the same date, th e application s u bject of th e appeal was filed. Th erefore , the requirements of Order 14A of the Rules of the Supreme Court of England were complied with before th e application was made. 14.7 Coming to Order 33 Rules 3 and 7 of the Rules of the Supreme Court of England, it will be seen from the editorial n otes u n der Order 33/3/1 which guides on the effect of the Rule, that it states that; "Under this rule, the Court can, if necessary, direct that a question or issue shall be stated by or in the form of a special case, but the parties cannot under this rule agree between themselves, without obtaining the order of the Court, to state questions of law in the form of a special case. If a special case is directed by the Court, it should be signed by Counsel if settled by him, otherwise it should be signed by the solicitors or by the parties if appearing in person. The former R18 practice with regard to the filing of a special case and its entry for argument no longer prevai ls. This rule should be read with 0 . 14A (Disposal of case on point of law), 0.18, r . 11 (raising a point of law on the pleading) and with r.4 (2) (trial of preliminary issues). Under this rule the Court has power to try a preliminary question of law at the outset. Such question may have been raised on the pleadings (see 0.18, r.11 and may be ordered to be tried on the pleadings or on a case stated or an agreed statement of facts, and such order will be made on the hearing of a summons fo r directions if not earlier. Or the Court may at the trial order a question of law to be tried first". 14.8 From the above, it is clear that the parties may not on their own, decide to frame questions for the Court's determination, but must apply for an Order of the Court to do so. There is no such application from the Defendant on record. Rule 7 of Order 33 empowers the Court to dismiss an action or cause, where a question or issue raised therein, which is tried separately disposes of the matter. It will be noted that the power under Rule 7 stems from an Order given under Order 33 Rule 3 , which requires that R19 the Court should have given an Order for the determination of the issues or questions separately, and not on the parties' own motion. 14.9 I have already stated that there is no such application on record, and the use of Order 33 Rules 3 and 7 was irregular, as Order 14A sufficed. 14. 10 That said, the question is whether this action is statute barred? The contention by the Defendant was th a t the Plaintiffs contract of employm ent was terminated on 25 th June, 2013, and he commenced these proceedings on 20Lh January, 2020, more than six (6) years later. 14.11 Relying on Section 2(1) of t he Limitation Act, 1939, the Defendant's argument was that the action is statute barred as it is based on the Plaintiffs contract of employment, which is a simple contract, and the action should h ave been commenced within six (6) years of the contract being terminated. 14.1 2 The Defendant also argued tha t the Plaintiff could not r ely on the outcome of criminal proceedings in this matter, which is a civil one. 14.13 The Pla intiff in countering those arguments, submitted that t h e main cla im in this action is anchored on a llegations that the Defendant maliciously prosecuted the Plaintiff, and tha t the cause of action under malicious • R20 prosecution only arose on the termination of the criminal proceedings. Further, he was being prosecuted on the criminal charges in relation to his employment, and therefore, he could not have commenced the claim for unlawful termination of his employment. 14. 14 In terms of limitation of actions founded 1n simple contract, Section 2 (1) of the Limitation Act, 1939 provides that; "The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say; a) Actions founded in simple contract .... " 14.15 As seen from p a ragraph 2 .1 above, the Plaintiff seeks damages for unlawful termination of employment, special damages, damages for malicious prosecution, and d amages for defamation of character. These claims as evidenced by the statement of claim, arise from the allegation that the Defendant sometime in March and April, 2013 reported the Plaintiff to the Zambia Police Service on allegations of fraud and money laundering. 14.1 6 It is alleged that on or about 14th June, 2013, the Defendant suspended the Plaintiff from work to facilitate the investigations, and on 10th and 17th July, 2013, the Plaintiff was invited to attend disciplinary h earings at the \ R21 Defendant. The contention by the Plaintiff is that he could not do so, as on those dates, he was being interrogated by the Zambia Police and the Drug Enforcement Commission, and he had accordingly informed the Defendant. 14.17 However, he was dismissed from employment on 27 th July, 2013, and he did not appeal against his dismissal, as he was not given an opportunity to do so, as he was reported to the Zambia Police, and subsequently the Drug Enforcement Commission, who charged him with the criminal offences for which he was prosecuted from September, 2014 until September, 2018, when he was acquitted on all the charges. He then instituted these proceedings on 20th January, 2020. 14.18 With regard to the claim for unlawful termination of employment, this arose from the contract of employment. As seen from Section 2 (1) of the Limitation Act, the limitation period for actions based on simple contract is six (6) years from when the cause of action accrues. This claim, as rightly argued by the Defendant, is independent of the criminal proceedings, a nd the fact that the Plaintiff was facing criminal charges arising out of his employment, did not stop time from running, when it came to the administrative disciplinary proceedings that the Defendant had instituted against him. \ R22 14.19 The Defendant h as relied on the case of Shoprite Holdings Limited and Shoprite Checkers (Pty) Limited v Lewis Chisanga Mosho and Lewis Nathan Advocates (Sued as a firm) f 1 3J stating that the said case guided that there is no bar to civil and criminal proceedings involving the same parties running concurrently. In that matter, it was stated as follows; "We have stated above that there is no complete bar to civil and criminal proceedings involving the same parties proceeding concurrently. However, a court must guard against the real danger of a potential miscarriage of justice in the criminal proceedings if the court did not intervene. A notional danger is not enough. We are of the view that the 1st defendant will suffer no serious injustice by the continuance of the civil proceedings as there will be no danger of incriminating himself. We are, however, of the view that a sensible approach to take in this matter is to adopt the reasoning in Attorney General for Zambia v Meer Care & Desai and 19 others, and ring fence the civil proceedings. We therefore order that none of the evidence adduced by the defendants in the civil proceedings can be used against the 1 st defendant in criminal proceedings, nor can any of the documents \ R23 disclosed by him in the proceedings in the court below be used in the criminal proceedings, unless the 1 st defendant agrees or the court orders otherwise. The order staying the proceedings is set aside and the appeal is allowed". 14.20 In that matter , referen ce was made to Paragraph 20A- 358 at page 1643 of the White Book, 1999 Edition, Volume 2 wh ich states t h at: "Where there are concurrent civil and criminal proceedings against the same defendant arising out of the same subject matter, there is no principle of law that the plaintiff in the civil proceedings is to be debarred from pursuing the action in accordance with the normal rules merely because so to do would or might result in the defendant, if he wished to defend the action, having to disclose his defence by taking some necessary procedural step, and so give an indication of what his likely defence was likely to be in contemporaneous criminal proceedings, but the civil court has a discretion to stay the proceedings if it appeared to the court that justice between the parties so required, having regard to concurrent criminal proceedings arising out of the same subject matter and taking • ' R24 into account the defendant's "right of silence" in t he criminal proceedi ngs. There was no overriding right based on the privilege against self incrimination, to have a civil action stayed pending the conclusion of the criminal proceedings. It was fo r a defendant to seek to avail himself of the privilege t o take specific objection on an application at some point i n the interlocutory stages of a civil action." 14.21 Based on the above, it can be seen that there is no law that precludes the continuance of civil proceedings and cr iminal proceedings currently involving the same subject, save that a person subject of those proceedings, may apply that the civil proceedings be stayed pending the conclusion of the criminal proceedings, in order to avert any prejudice that may be occasioned to them as a result of any evidence that may be produced in the civil proceedings, which may infringe or impact upon their right to remain silent or otherwise in the criminal proceedings. 14.22 Therefore, in light of the above, what the Plaintiff should have done, was to commence the proceedings a lleging unlawful termination of his contract of employment within the period of six years of the cause of action arising, and ther eafter apply to have to have them stayed pending the determination of the criminal proceedings. • ' R25 14.23 The Court of Appeal in the case of Standard Chartered Bank (Z) Plc v Celine Mena Nair (2 3J upheld the d ecision of the High Court which stated that; "The Grievance Procedure Code in employment forms part of the contract of employment. It forms the basis upon which internal disputes between employees and employers are resolved. When the grievance procedure is triggered, the responsibility is upon the emp layer to take charge of the process so that the dispute is resolved quickly in order to promote industrial harmony". 14.24 The Court in that matter further found that the Respondent failed to follow its grievance procedure. Going by the above, as there is need to invoke the disciplinary procedure in line with a contract of employment, once an employee is alleged to be in breach of the same in order to promote industrial harmony, which the Defendant did. Thus, it cannot successfully be argued that the Plaintiff could not respond to the disciplinary charges as he was facing criminal charges in relation to the same. 14.25 The Plaintiff has not alleged that his contract of employment provided that if there were criminal proceedings pending, then the Defendant could not invoke administrative proceedings against him, in the form of ' R26 disciplinary charges 1n line with the disciplinary and grievance code. 14.26 That being the position, and the fact the Defendant did in fact invoke the disciplinary grievance procedure when there was an allegation that the Plaintiff had breached his contract of employment, and bearing in mind that there is no law that stops the concurrent civil and criminal proceedings against an em ployee, entails that the Plaintiff was bound to institute any claim for damages for wrongful termination of his employment within a period of six (6) years from the date h is employment was terminated by way of dismissal, being 27th July, 2013. 14.27 He should have commenced tha t claim by 26Lh July, 2019, and it is consequently statute barred, and I strike it out of the claims. 14.28 As regards the claim for malicious prosecution, it has been seen from the authorities cited, that one of the elements of that tort is that the prosecution should have ended in a plaintiffs favour. The Judgment in the criminal proceedings under which the Plaintiff was prosecuted, was only delivered in September, 2018 . Malicious prosecution is a tort and the cause of action accrues on the date of Judgment, and time runs for three (3) years from that date. 14.29 That said, the arguments relating to the decision in the case of U Rest Foams Limited v Puma Bot swana (PTY) • R27 Limited and Colourfast Textile Printers (PVT) Limited (lBJ do not apply, as one of the elements of the tort of malicious prosecution, is that the prosecution should have terminated in a plaintiffs favour. Having instituted the action on 20th January, 2020 after the Judgment was delivered on September, 2018, the Plaintiff was within time, and that cause of action is not statute barred. 14.30 It is noteworth y that the arguments by the Plaintiff in the submissions dated 3 rd March, 2022 regarding malice on the part of Defendant in instituting criminal proceedings against him, and the lack of reasonable and probable cause for doing so, are properly for determination at trial, and not at this stage. 14.31 That being the position, and the Defendant having entered appearance and filed a defence on 3rd February, 2020, the following shall be the Orders for Directions; 1. That the Plaintiff shall file a reply by 8 th April, 2022. 2. There shall be discovery or documents by 20th April, 2022 . 3. There shall be inspection of documents by 5 th May, 2022. 4 . The parties shall file their bundles and pleadings and documents by 19 th May, 2022 . \. R28 5 . The matter shall come up for a status conference on 6 t h June, 2022 at 08:30 hours. 14.32 Costs shall be in the cause and leave to appeal is granted. DATED AT LUSAKA THIS 31st DAY OF MARCH, 2022 S. KAUNDA NEWA HIGH COURT JU ... ,~.---.. ~-E_P_U_BL_I_C_O_F_Z_A_M_B_IA-- HIGH C OHRT n F 7AMBIA iJ4[31_MAR20~ q;i S . NEWA. J P. O . BOX 50067, LUSAKA