Zambia Railways Limited v Micheal Temba (APPEAL NO. 142/2008; SCZ/8/290/2006) [2013] ZMSC 92 (7 October 2013)

J1 THE SUPREME COURT OF ZAMBIA APPEAL NO. 142/2008 HOLDEN AT LUSAKA SCZ/8/290/2006 (Civil Jurisdiction) BETWEEN: ZAMBIA RAILWAYS LIMITED APPELLANT AND MICHEAL TEMBA RESPONDENT CORAM: Chibesakunda, Act. CJ., Mambilima, DCJ., Mwanamwambwa, J. S. On the 22nd July, 2010 and 7 th October, 2013. For the Appellant: Mr. Chitundu of Messrs Chifumu Banda and Associates. For the Respondent: Mr. M Sakala, Corpus Globe, Legal Practitioners. JUD6MENT Mwanamwambwa, J. S, Delivered the Judgment of the Court. Cases referred to: 1. Mweshi v ZCCM Ltd., Judgment No. 10 of 1996. Legislation referred to: Rule 32(2) of the Industrial Relations Court Rules. J2 This is an appeal against the Ruling of the Industrial Relations Court, of 25 th October 2006; whereby it upheld a preliminary objection by the Respondent, and refused to hear the Appellant's appeal, against assessment of damages by the Registrar. The facts of the matter are that the Judgment on assessment was passed on 31 st May 2006. On June 2006 the Appellant filed the appeal to the full Court, against assessment. That was 27 days from the date of the Judgment on assessment. That was a breach of Rule 35(a) of the Industrial Relations Court Rules. The Rule requires that such an appeal should be filed within three (3) days from the date of the Judgment on assessment. The main Judgment on liability was passed about 10 years before, in favour of the Respondent. As at assessment in May 2006, the Respondent had already passed away. The assessment Judgment ordered the Appellant to pay the Respondent K65,426 , 104.8, plus pension, but less the purchase price of the House, as offered to others similar in type of House. It awarded 35% interests per annum until settlement. J3 In considering the preliminary objection, the Court below observed that it's chief function was to do substantial justice, between the parties. That nothing should limit or otherwise affect it to make such order as may be necessary for the ends of justice. But that at the same time, the Court should prevent the abuse of the process of the Court. It further said that every action should have a measure of duration - a maximum period during which e certain actions can be brought or rights enforced. It then held that the Appellant slept on its rights, by filing its Notice of appeal 27 days in excess of the prescribed period of three days. Accordingly, it refused to hear the Appellant's appeal against the assessment Judgment of the Registrar. Dissatisfied with the decision, the Appellant has appealed to this Court, advancing two grounds of appeal. They read as follows: "1. The Learned Registrar of the Industrial Relations Court erred in Law and in Fact by presiding over the assessment of damages and determining the same in her judgment of 31 st May 2006 when she did not have the requisite jurisdiction to do so. J4 2. The full bench of the Industrial Relations Court misdirected itself both in law and fact by declining to hear and determine the application for assessment of damages in its ruling of 25th October 2006 which was before it by way of appeal against the Registrar's said judgment on assessment of damages of 31 st May, 2006." On ground one, Mr. Chitundu, on behalf of the Appellant, makes lengthy submissions. The gist of his submissions is that the Registrar of the Industrial Relations Court had no jurisdiction to hear and determine assessment proceedings, as this is the preserve of the Court. That the Registrar does not constitute the Court. Therefore, the assessments of damages proceedings before the Registrar were null and void. In support of this submission, Counsel cites the following: (a) Ditton Chambwilo and 61 Others and Reliable Service Provider Limited and another -SCZ Judgment_No. 5 of 2009. (b) Mbazima & Others, the joint Liquidation of ZIMCO Ltd - SCZ No. 6 of 2009. (c)Rule 77 of the Industrial Relations Court Rules. JS We must say at once here that this ground and submissions thereon, are misconceived and way off mark. Here we are dealing with an appeal against the decision of the Industrial Relations Court to refuse to hear the Appellant's appeal, against the assessment of damages by the Registrar. We are not dealing with an appeal against the assessment of damages itself, by the Registrar. The appropriateness or otherwise of the assessment- - proceedings is not before us. The same applies to the merits or otherwise of the assessment judgment. We decline to adjudicate on an issue that is not before us. Accordingly ground one is hereby dismissed. On ground two the gist of Mr. Chitundu's submission is that the Industrial Relations Court is empowered to do substantial justice, as opposed to stopping a party from being heard on merits, for failure to comply with procedure. In response on behalf of the Respondent, Mr. Sakala points out that on 31st May, 2006, the Registrar delivered Judgment on assessment on damages. That Rule 35(2) of the Industrial and Labour Relations Act, states that an appeal against such a . •', J6 Judgment must have been lodged within three days from 31 st May, 2006. That the Appellant filed it's Notice of Appeal on 30th June 2006, without leave of the Court. He submits that while the Industrial Relations Court is empowered to do substantial justice in exercising it's jurisdiction, that substantial justice must be done within the Rules of the Court. He adds, that given the fact that the matter has been in Court for a long time, the substantial justice 4I that the lower Court is obliged to administer must be administered for the benefit of both parties. In support of his submissions he cites Mweshi v ZCCM Ldt.1 11 We have considered the submissions on both sides. We totally agree with the decision of the Court below and the submission by Mr. Sakala, that substantial justice must cater for the interests of both sides. The delay of 27 days in this matter was inexcusable and unreasonable. This matter had been in Court for about 10 years when the default by the Appellant occurred. The Appellant clearly slept on it's rights. A party who sleeps on his rights, delay the matter and thereby occasion prejudice to the other party, cannot plead substantial justice. A party cannot inflict injustice on ' , ' ' . •• I J7 the other party by delay, and at the same time , plead substantial justice in his favour. For the foregoing reasons, we uphold the decision of the Industrial Relations Court, in refusing to hear the Appellant's appeal against the Judgment of the Registrar, on assessment of damages. We hereby dismiss the appeal. We order that the Judgment on assessment be enforced immediately. We award costs to the Respondent, to be taxed, in default of agreement. (/} ( L. P. Chibesakunda AG. CHIEF JUSTICE '&--~ ............................................. LC. Mambilima DEPUTY CHIEF JUSTICE