Zambia Consolidated Copper Mines Ltd v Sinkala and Ors (SCZ Appeal 149 of 1998) [2000] ZMSC 132 (18 April 2000)

SCZ APPEAL NO. 149 OF 1998 IN THE SUPREME COUR OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: ZAMBIA CONSOLIDATED COPPER MINES LTD. Appellant AND MOFFAT SINKALA AND FIVE OTHERS Respondent CORAM: Chaila, Chirwa and Lewanika, JJS at Ndola on 3rd March 1999 and at Kabwe on 18th April 2000 For the Appellant: Mr. Ndulo, Legal Counsel, ZCCM For the Respondent: Mr. K. Msoni, J. B. Sakala & Co. JUDGMENT Chaila, J. S. The facts in the Appeal No. 149 of 1998 as found by the learned trial Judge are not very much in dispute and they have raised very serious issues. The learned trial Judge in his ruling said: : J2 : “The substantive action in this case is that the plaintiffs were wrongly paid on unionized formula when they are supposed to be paid on non-unionised formula. Mr. Ndulo, learned counsel for the defendants submitted that the plaintiffs have only queried their payment. That is not correct. The truth is that the plaintiffs have filed an action in Court and on the papers before me the plaintiffs have raised a serious issue to be determined at the trial. If the plaintiffs are not protected now and they succeed in the main action they will lose the opportunity to buy the houses they now occupy and this loss in my view will be irreparable injury which cannot be adequately atonedfor damages. ” The learned trial Judge then proceeded to deal with document MS 1 which the learned trial Judge regarded as a new matter. The said document makes serious pronouncements on the sale of houses. The learned trial Judge did not go into detail of this document but he treated it as a new matter. I will refer briefly to this document. At page 34 of the record, the document states: “SALE OF COMPANY HOUSE: This information must be communicated to union branch officials and all levels of employees at all Division/Units on Monday, 21st July 1997.“ The wording indicates that this document was definitely issued by the 21st of July 1997. Paragraph 1 of the same document at page 34 states: - “In the last Brief on the progress made in the privatisation of the company, it was stated that a separate Brief would be issued on the sale of company houses to employees. The main reason for not covering the sale of company houses at that time was that modalities for sale had not been worked out. Now that these matters have been resolved, the company will commence the selling of houses to employees on Tuesday, 22nd July 1997. : J3 : Through the on-going negotiations, the Union has made valuable proposals which have been taken into account in arriving at the decisions to sell company houses to employees. ” This paragraph in my view shows that the question of sale of houses had been going on and it is not clear when the final decision was reached on the sale of houses. The people who knew were the ZCCM and the Unions. The respondents would therefore, not know what decision had been reached, except that negotiations had been going on at the time they took out the writ of summons and applied for Protective Orders. The circular MS 1 brought some new matter which is to take into account that a decision and been made on the sale of houses prior to the date of implementation. The circular was definitely issued before 21st July 1997. Paragraph 2 of the circular talks about the rules governing the sale of houses. 2 (1) says: “All confirmed Zambian ZCCM employees in service shall be eligible to purchase company houses subject to the following provisions: (i) (ii) Priority would be given to sitting tenants; Employees occupying institutional houses or sub-standard houses or un housed would be offered available house within ZCCM to buy; (Hi) Employees who have retired, or have been declared redundant, or have been discharged on medical grounds but have not been paid their terminal benefits at the time the scheme would be introduced shall qualify. Paragraph 2 (2) provides that the following shall not be eligible: (i) Non-Zambians; (H) Direct employees of subsidiary companies; : J4 : (Hi) Employees who have retired, or discharged on medical grounds, or have been declared redundant and have been paid their terminal benefits. It can be seen from the quotations of the circular that when the employees were retired, they were unable to purchase the houses because the modalities of sales were still being worked out. The paragraph I have referred to in my view, have introduced new matters which were not known to the respondents at the time they had applied for Protective Order and in my view, these are the matters which formed the basis of sufficient grounds for the learned trial Judge to exercise powers to review. The learned trial Judge in my view was on a firm ground when he exercised his powers in favour of the respondents. I would uphold the decision of the learned trial Judge and I would dismiss the appeal with costs. M. S. CHAILA SUPREME COURT JUDGE : J5 : Chirwa, J. S. Case referred to: Roy v Chitakata Ranching Company [1980! Z. R, 198 I have read the judgment of my senior brother, Chaila, JS just delivered. I respectfully do not agree with his conclusion for reasons contained herein. This is an appeal against the granting of an interim injunction against the appellant, ZAMBIA CONSOLIDATED COPPER MINES LTD., restraining the appellant from evicting the respondents from their homes in Chingola. The facts so far revealed on record show that the respondents were employed by the appellant and worked for various lengths of time. They were retrenched and according to the writ, they have not been paid all their terminal benefits and they have sued for the same and other claims. Whilst retrenched and while waiting full payment of their terminal benefits the respondents were served with notices of eviction from their houses. They applied for an injunction which was refused but were granted a protection order valid for three (3) months. This means that evictions could not be carried out during that three (3) months. When the three (3) months was about to expire they applied to the Court for an extension of the protection J6 : order, which was duly granted, and the order was extended for two (2) months. When the two (2) months was about to expire, they applied to the Court to extend the protection order. At the hearing of the third extension, it was argued that the application was irregularly before the Court, saying that the matter should have gone to Court by way of review although in the same vein it was argued that there was no new matter that had arisen to warrant review of the order. However, the Judge held that there was new matter in the form of document outlining methods and qualifications in buying the appellants houses. To save time, the judge treated the respondent’s application as an application for review and that there were sufficient grounds upon which he could invoke his powers of review under Order 39 of the High Court Rules. He then reviewed his Order of 4lh February 1997 in which he refused to grant the injunction and instead issued a protection order. He set aside the protection order and instead granted the respondent an injunction restraining the appellant from evicting the respondents until the final determination of the main action. It is this order of interim injunction that has been appealed against. In arguing this appeal, Mr. Ndulo submitted that the learned trial Judge erred right from beginning when he refused to grant an injunction and yet he granted a protection order which had the same effect. It was also argued that, the learned trial Judge should not have considered the application for extension of the protection order as an application for review as there was no such protection. Further that events that happened after the ruling granting protection order should not have been considered in purporting to review the order. ; J7 : In reply, it was argued on behalf of the respondent that the learned trial judge was in perfect order in reviewing his order in view of the new evidence that the respondents were entitled to buy the houses as sitting tenants. There were good grounds upon which the learned trial Judge had decided to review his ruling of February 4, 1997. The matter came for a further extension of the protection order and was opposed. The Judge, on his own motion treated the application for an extension of protection order as an application for review of his ruling rejecting the application for an interim injunction. The Powers under Order 39 r.l are very wide. The Court can rehear the case wholly or in part and take fresh evidence. What is crucial is the taking of fresh evidence. What is meant by fresh evidence? The High Court decision in the case of ROY v CHITAKATA RANCHING COMPANY !19801 Z. R. 198 cited to us by Mr. Ndulo is good law. By fresh evidence it means evidence available, but not known to the party, at the time of the original judgment or ruling; which with due diligence the party could be aware of have discovered it. It does not mean evidence which becomes available after the ruling or judgment. In the present case the fresh evidence is the circular outlining the qualifications of the employees to buy company houses and modalities. This circular came into effect on 21sl July 1997. The original ruling rejecting the application for an interim injunction was made on 4 February 1997 long before the circular was issued. This means that the circular was not fresh evidence or evidence that was available at the time the ruling was made which the respondents with all reasonable diligence could not discover it. The learned trial Judge : J8 : could therefore not use this evidence as fresh evidence, the basis on which he reviewed his 4th February 1997 ruling and granted an interim injunction. I would therefore allow this appeal with costs to be agreed in default to be taxed. D. K. CHIRWA SUPREME COURT JUDGE : J9 : Lewanika, J. S. I have had the opportunity of reading the judgments of chirwa J S and Chaila, J. S. I concur with the reasoning of Chirwa, J. S. S and would also allow this appeal with costs, to be taxed in default of agreement. D. M. LEWANIKA SUPREME COURT JUDGE