Zambia Railways Ltd v Nkhuka (SCZ Appeal 18 of 1998) [1999] ZMSC 76 (25 January 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 18 OF 1998 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ZAMBIA RAILWAYS LIMITED APPELLANT AND FRANCIS LOTI NKHUKA RESPONDENT Coram: Chai la, Lewanika and Chibesakunda, JJS 13th August, 1998 and. A^.'l^^Cy.,. AW. For the Appellant : Mr. M. Nsefu, Company Secretary, Zambia Railways. For the Respondent: Mr. E. M. Mukuka of Mukuka and Company. JUDGMENT Chaila, J. S. delivered the judgment of the court. This is an appeal by the Zambia Railways Limited (hereinafter called the appellant), against the ruling of the High Court (Kabamba, J), made in favour of FRANCIS LOTI NKHUKA (hereinafter called the respondent). The brief facts of the case were that the respondent who had been an employee of the appellant stopped work sometime in 1994. He was paid K120,000 for repatriation. The respondent was allowed to purchase a house in Kabwe. The house belonged to the appellant. After he had been sold the house and given repatriation allowance, the respondent went to settle in a village in the Eastern Province. A colleague of his who was also an employee of the Railways also stopped work for the appellant company. The respondent's friend was paid initially K120,000 as repatriation allowance. Later he took out summons against the appellant in the Industrial Relations Court. The Industrial Relations Court interpreted the Conditions of Service which gave him more than K120,000. On learning that his colleague has been awarded more than KI20,000 by the Industrial Relations Court, the .'■;;s:>ondent took out 3 writ of summons under Order 13 of the High Court Rules. The District Registrar found that there was a disagreement on the interpretation of the clause that dealt with reoatriation allowance and the company's policy of selling houses. The District Registrar decided to give the apnellant unconditional leave to defend the action. The respondent appealed to the judge at chambers against this decision. The appellate judge agreed that the matter had not yet been settled by the Supreme Court and therefore, the District Registrar was not bound by the decision of Industrial Relations Court. He, however, went on to interpret the clause in the Zimco conditions of service dealing with repatriation allowances and allowed the appeal and ordered the appellant to oay repatriation allowances based on the interpretation of the relevant clause. The main issue in this appeal is whether the learned trial judge was correct in interpreting the clause of the conditions. The advocate for the appellant argued through written heads of argument and oral submissions, that what the District Registrar did was to allow them to defend an action since there were triable issues. They argued that the Zimco conditions of service were subject to subsidiary company conditions and that Zambia Railways had their own conditions. They further argued that the respondent had accepted the payment of K120,000 as full payment. They further argued that there was a new element of purchasing company's houses. They wanted to know whether a person who has purchased a house in Kabwe could be paid reoatriation allowance outside Kabwe. They have further argued that they are an organisation which employs a lot of people and has been paying repatriation allowances in accordance with the company's conditions and that if the Zimco conditions applied to the employees, then the comoany could collapse. Counsel for the respondent has argued that the learned appellate judge was correct in his interpretation of the relevant clause and that the appeal should be dismissed. We have given the matter very serious considerations. We have read the affidavits, the judgment of the District Registrar and the judgment - J3 - of the Industrial Relations Court. The learned appellate judge in his ruling agreed with the arguments put forward by the appellant that: "the matter has not been concluded and therefore, there was no decision on the superior court that would bind the District Registrar." The learned appellate judge went further to interpret the clause in question. In the District Registrar's ruling, it is quite clear that the Registrar was of the view that there were triable issues which could only be resolved by giving the appellant leave to defend. We agree with the arguments of the learned advocate for the appellant that the matter should be decided upon by trial of the issues involved. The learned trial judge should have not proceeded to give legal interpretation to the clause without evidence being led. The decision of the learned appellate judge is set aside. The matter is sent back to the District Registrar for hearing. The appeal is, therefore, allowed and we make no order as to costs. M. S. CHAILA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE