Andrew Mwamba and Ors v Health Professions Council of Zambia (2023/HPIR/ 1297) [2024] ZMHC 231 (21 November 2024)

IN THE HIGH COURT FOR ZAMBIA 2023/HPIR/ 1297 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: ANDREW MWAMBA FYATILANI CHIRWA HILDAH LYAMBA AND oURTo LUSAKA --2 1 NOV 2024 MPLAINANT 3RD COMPLAINANT HEALTH PROFESSIONS COUNCIL RESPONDENT OF ZAMBIA Coram: Chigali Mikalile, Jthis 21 st day of November, 2024 For the Com pla inants: Mr. B . M Kabika - Messrs Mwimaka Legal Practitioners For the Respondent: Ms. S. M. Musonda- Messrs Kalokoni and Company Legislation referred to 1. The Industrial and Labour Relations Act, Chapter 269 2. Th e White Book (1999) Edition 3. The Constitution (Amendment) Act No. 2 of 2016 4. English Law (Extent of Application) (Amendment) Act No. 6 of 2011 Cases referred to: 1. Ruth Kum bi v. Rabson Caleb Zulu, SCZ Judgment No. 9 /2009 2. Zambia National Commercial Bank Plc v. Martin Musonda & 58 Others Selected Judgment No. 24/2018 3. New Plast Industries v . The Commissioner of Lands & Attorney General, SCZ Appeal No. 8 / 2001 4 . Isaac Lungu v. Mbewe Kalikeka, Appeal No. 114/2013 5. Zambia Consolidated Copper Mines v. Richard Kangwa, SCZ Judgment No. 25/2000 6. Charles Kangwa v. Shade Control, Appeal No. 132/2007 7 . Chansa Chipili Powerflex (Z) Limited v . Wellington Ka nshimike Wilson Kalumba (2012) 3 ZR 483 (S. C) Introduction 1. The complainants filed their notice of complaint on 19th December, 2023. The respondent filed its answer on 19th January, 2024 and on 1st February, 2024, it amended its answer without leave of court. It is this course of action that has prompted the complainants to file notice of intention to raise preliminary issue on a point of law pu rsuant to Rules 33(1) and 38 of the Industrial Relations Court Rules, Chapter 269 (!RC) on the following grounds: (i) whether or not the respondent made an application before court to amend its answer; (ii) whether or not the High Court Ru les, Chapter 27 (HCR) are applicable to the Industrial Relations Division of the High Court (!RD); R2 (iii) whether or not the Rules of the Supreme Court Practice (White Book) 1999 Edition (RSC) are applicable to the IRD; (iv) whether or not t h e respondent's answer and amended answer are signed and valid. Affidavit in support 2. The affidavit in support 1s sworn by Andrew Mwamba, the lead complainant. He deposed that on 1st February, 2024, the respondent amended its answer without making an application before court. The amended answer is exhibited to the affidavit. 3. According to the complainant, allowing the respondent to proceed with the amended answer that has not been authorized by this court would be to disregard rules of procedure applicable in this court. Further, the answer and amended answer off end rules of procedure applicable in the IRD as they are settled by the respondent's legal counsel and not signed by the respondent as required by law. Affidavit in opposition 4 . The affidavit was sworn by Lloyd Bwalya, respondent's in-house counsel. He averred that the respondent filed an answer on 19th January, 2024 and on 1s t February, 2024, filed an amended answer which only removed the word "to the respondents" under paragraph 7 of the aforesaid amended answer, without leave of court. 5. According to the deponent, the amended answer does not alter any substantive issues in contention by the complainants. Further, the R3 procedure taken to amend does not off end any rules applicable in the IRD. 6. The deponent also averred that the answer and amended answer were signed by him as the respondent's legal representative at the time of filing. The complainants are not only seeking to dismiss the amended answer but also the answer itself, which is an abuse of the court process as one can only refer to the current pleading under contention and not both as the amended answer supersedes the first answer. 7. The deponent further averred that he is alive to the fact that an application to raise a point of law can be made at any time, though the application by the complainants is an afterthought that should not be entertained by court and is without merit. The matter ought to be allowed to proceed to trial on merit on the amended answer. Submissions 8. Both sides filed skeleton arguments for which I am most grateful. Counsel for the complainants also made oral submissions at the hearing which shall not be repeated as they are canvassed 1n the written submissions. Decision 9. I have carefully considered the affidavit evidence, skeleton arguments as well as the oral submissions. 10. It is a fact that the respondent amended its answer without leave of court and the amendment is pursuant to Rule 55 of IRC Rules, Cap R4 269 as read with Order 18 of the HCR, Cap 27 and Order 20 Rule 1 of the RSC. These provisions state as follows: Rule 55: Nothing in these Rules shall be deemed to limit or otherwise affect the power of the Court to make such order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Order 18 HCR: The Court or a Judge may, at any stage of the proceedings, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just. Order 20/ 1 RSC: Subject to paragraph (3) the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed. 11. The net effect of the first two provisions is that the court can allow an amendment for the furtherance of justice. The last provision allows a party to amend a writ once without leave of court before pleadings are closed but subject to the conditions set out in paragraph 3. 12. I will now address the grounds upon which the preliminary issue is raised as listed by the complainants. RS Whether or not the res pondent made an application to amend its answer 13 . The complainants submitted that an amendment to a notice, statem ent of claim, answer or other document m ay b e made in two instances , tha t is, on the motion or instiga tion of the trial court or wh ere th e party to the proceedings applies to the court to have a notice, st atemen t of claim, answer or other document amended. This is as p er Rules 36(1), (4) and (S)(a) of the IRC rules. It was th en argued that the respondent ought to have made an application in a ccordance with th ese rules . 14. On it s p art , the respondent submitted that Rule 36 of the IRC rules does not provide for the procedure of how an answer must be amended . The White Book, however, doe s provide procedure and allows a party to amend once without leave of court. The case of Ruth Kumbi v . Rabson Caleb Zulu 1 was relied on in which th e Supr eme Court h eld tha t: Now by statute, the Zambian Courts are bound to follow all the rules and procedure followed in England as stated in the 1999 edition of the White Book. The entire provisions of the rules of the Supreme Court as expounded in the White Book, 1999 edition, including the decided cases, are now Zambian law by s tatute and as s uch binding on the Zambian Courts. 15. As seen from the foregoing argum en ts, the re sponden t did not m ake an application to amend its answer. The consequences , if any, shall be d ealt with later in th e ruling. R 6 Whether or not the High Court Rules, Cap 27 are applicable to the IRD 16. The complainants have argued that the HCR are not applicable in the IRD. In support of this position, several provisions of the law including Article 133 of the Constitution a s amended by Act No . 2 of 20 16 were cited. 1 7. The respondent argued that it relied on Article 133(2) which makes the IRC a division of the High Court thereby making the HCR applicable where the procedure is ina dequate in the IRC rules without seeking leave . 18. I have considered the opposing views. The issue of whether or not the HCR are applicable was settled by the Constitutional Court in the case of Zambia National Commercial Bank v. Martin Musonda & 58 Others2 . In fact the decision of that Court is in sharp contrast to the respondent's proposition. The Court held in part as follows: In its literal interpretation, Article 133(2) of the Constitution as amended merely makes the Industrial Relations Court a division of the High Court and has not affected wholesale, the provisions of the Industrial and Labour Relations Act and its Rules to the extent that they do not conflict with any provision of the Constitution as amended. Until new legislation is enacted to provide fo r the processes and procedures and ;urisdiction of the Industrial Relations Court Division pursuant to Article 120(30/a) and (b) of the Constitution as amended. the Court continues to use the existing processes and procedures and enioy the same ;urisdiction. To find that the rules of the High Court apply by virtue of 133(2) would entail this Court reading words into R7 the provis ion of the Article w hen the wording of the Article is not ambiguous at all. (underlined for emphasis) 19 . The foregoing decision is very clear. The rules of the High Court are not applicable to this division. Thus, it was irregular for the respondent to rely on Order 18 of HRC. Whether or not the Rules of the Supreme Court o{England, 1999 Edition are applicable to the IRD 20. The complainants contend that the respondent could not have made its amendment pursuant to RSC as there is no authority to suggest that these Rules are applicable. Various provisions of the law were cited in support of the argument that the applicability of the White Book is limited to selected Courts and divisions of the High Court. These are: section 8 of the Supreme Court of Zambia Act Chapter 25; section 9 of the Constitutional Court Act, No. 8 of 2016; section 8 of The Court of Appeal Act No. 7 of 2016; section 2 of the High Court Act as amended by Act No. 7 of 2011; and section 12 of the Subordinate Courts Act, Chapter 28. 21. According to the complainants, no similar provision providing for the application of the White Book exists in Cap 269 and its attendant rules. 22. In response to this ground, the respondent relied on the case of New Plast Industries v. The Commissioner of Lands & Attorney General3 which held that "the English White Book could only be resorted to if the Act was silent or not fully comprehensive. " RB 23. According to the respondent, Rule 55 of the IRC rules and Order 18 of HCR do not provide for any procedure of how to amend a pleading and so resort is had to the White Book. 24. Furthermore, the respondent relied on the Ruth Kumbi case cited above . 25. I h ave carefully considered each party's argument on this ground. I must m ention that the complainants do make a compelling argument th at Cap 269 does not provide for applicability of the White Book as is the case with the higher courts' Acts and Acts of the other divisions of the High Court. 26. Nonetheless, I have not come across any decision of the apex cour ts that completely ousts the application of the White Book in the IRD. Indeed , the case of Ruth Kumbi of 2009 obliged Zambian Courts to follow the rules and procedures followed in England as stated in the 1999 edition of the White Book. However , this position has since changed following the enactment of the English Law (Extent of Application) (Amendment) Act No. 6 of 2011. This was discussed by the Supreme Court in the case of Lungu v . Kalikeka4 as follows: ... we want to deal with the submission by Mr. Magubbwi that by virtue of section 2(e) of the English Law (Extent of Application) (Amendment) Act No. 14 0{20022, and Ruth Kumbi v Robinson Kaleb Zulu1 the provisions of Order 23 Rule 3/ 3 of the RSC, 1965 Edition and of the RSC or White Book 1999 Edition are of statutory effect and binding on our courts. We wish to state that the position as put by counsel for the appellant is no longer the same with the passing of the English Law (Extent of Application) {Amendment) Act No. 6of2011 8 . R9 By this amendment, and of course subject to the provisions of the Constitution and to any other written law, (a} the common law; (b} the doctrines of equity; (c) the statutes which were in force in England on 17th August, 1911 ..... ; and (d) any statute of a later date than that mentioned in (c) in force in England, now applied to Zambia, or which shall apply by an Act of Parliament, or otherwise, shall be in force in Zambia. However, English practice and procedure rules only apply in so far as there is a lacuna in our rules or practice and procedure. We do not resort to English practice and procedure when our own rules and procedures are clear and comprehensive. (underlined for emphasis) 27. It is clear from the above decision that the White Book can no longer be applied with a blanket approach. It is to be applied only where there is a gap in our own rules and procedure. 28. It is in light of the foregoing authorities that I am not persuaded by the argument that that White Book is inapplicable to this division. 29. Having stated the above, it is still to be resolved whether or not the respondent was on firm ground in relying on Order 20(1) RSC. 30. The Constitutional Court guided in the case Zambia National Commerc ial Bank v . Martin Musonda & 58 Others (supra) that the IRD was to continue using the processes and procedures in force until new legislation is enacted. As such, the question to be asked is whether or not our rules are wan.ting when it comes to amendment of an answer. 31. I have carefully examined Rule 36 subrules 1, 4 and S(a). They state: (1) Where it appears to the Court that the future conduct of any proceedings would thereby be facilitated, the Court may (either of its own motion or on application) at any stage of the proceedings appoint a date for the giving of directions as to their future conduct and thereupon the following provisions of this rule shall apply. (4) On the date appointed under sub-rule (1), the Court shall consider any application for directions made by any party and any written representation relating thereto and shall give such directions as it thinks fit for the purpose of securing the just, expeditious and economical disposal of the proceedings, including, where appropriate, directions in pursuance of rule 46 for the purpose of ensuring that the parties are enabled to avail themselves of opportunities for conciliation. (5) Without prejudice to the generality of sub-rule (4), the Court may give such directions as it thinks fit as to- (a) the amendment of any notice, statement of claim, answer or other document; 32 . I agree with the complainants that th e above prov1s10ns are adequate for purposes of making an amendment to a pleading and that such amendment can either be at the court's instance or through an application by a party to the proceedings. As such, the respondent ought to have sought the leave of court to amend its answer. 33. Thus, Order 20 Rule 1 of the RSC is inapplicable by virtue of the fact that there is no lacuna on amendment of pleadings in our rules. Further, as rightly argued by the complainants, it is inapplicable by virtue of the fact that it provides for an amendment of a writ. This matter was not comm enced by writ but by notice of complaint. R 11 Whether or not the respondent's answer and amended answer are signed and valid 34. The complainants argued that both the answer and amended answer were not signed by the Registrar/ Chief Executive Officer or any employee of the respondent. The rules and form require that an answer should be signed. 35. In response to this ground, the respondent submitted that there was nothing irregular about the respondent's legal representative signing the respondent's answer. To buttress this argument, the respondent made reference to Order 4 Rule 1 (3) of the Constitutional Act of 2016 which provides that a petition shall be signed by the petitioner or the petitioner's advocate and also Rule 11 of the Matrimonial Causes Rules of England 1973 which provides that every petition shall be signed by Counsel or by the petitioner's solicitor or by the petitioner if he sues in person. 36. I have examined Rule 11 (2) of the IRC Rules which states: A respondent who desires to answer a complaint shall, within the time appointed under sub-rule (1), deliver to the Court an answer in, or substantially in accordance with, Form /RC 10 contained in Part B of the Schedule, setting out his answer to the complaint, and the Registrar shall serve a copy of such answer on every other party to the proceedings. 37. I have further examined Form IRC 10 and note that it does have a provision for a signature. However, as rightly submitted by the respondent, the form does not specify as to who is to sign it. For instance, it does not state that the respondent's officer, in the event R 12 that the respondent is not a natural person as is the case herein, must sign the answer. 38. The complainants did not draw my attention to any authority that proscribes the signing of an answer by the respondent's advocate. I am, therefore, inclined to agree with the respondent that there was nothing irregular about the signing of the answer by the respondent's in-house coun sel. In any case, the in-house counsel is an officer or employee of the respondent. 39. Having settled all the gr ounds raised by the complainants, what remains to be determined is whether the amended answer ought to be dismissed in light of the fact that it was filed without leave of court as required by Rule 36. 40. The starting point is that this cour t is mand ated to administer substantial justice. Section 85(5) of Cap 269 gives this mandate. This entails that the court shall not be bogged down by procedural technicalities. I am fortified by the cases of Zambia Consolidated Copper Mines v . Richard Kangwa5 and Charles Kangwa v. Shade Control6 . In the former case, it was stated that the Industrial Relations Court is mandated to do substantial justice unfettered by legalistic niceties. In the latter, it was stated that allowing the strict rules of procedure would take away the whole purpose of the Industrial Relations Court being a Court of substantial justice. 41. Further, in the case of Chansa Chipili & Powerflex (Z) Limited v. Wellington Kanshimike & Wilson Kalumba7 it was held inter alia that: R13 "An irregularity on account of procedure would not be f atal because corrective action can be taken to allow the action to stand so that triable issues can be proceeded with, if that was all that was irregular." 42 . In light of these authorities, it becomes clear that dismissing the answer would not be the just course to take. Dismissing the answer means the respondent shall be left exposed, with no defence. Justice must be done between the parties and a court should be hesitant to grant an application that would deprive a litigant of an opportunity to defend itself. 43. Furthermore, I have considered the amendment made which is basically the removal of the words "to the respondents" in paragraph 7 of the answer so that the sentence now reads ' .. . which complaint ought to be dismissed with costs 1 as opposed to ' ... which complaint ought to be dismissed with costs to the respondents. 1 44. Quite clearly, this amendment is insignificant. It does not prejudice the complainants in any way. Besides, in granting an order for costs, the court is guided by the rule which specifies the circumstances under which costs may be ordered. (See rule 44). 45. In the circumstances, I am disinclined to dismiss the amended answer filed on 1st February, 2024. By virtue of rules 36(5) and 55, the amended answer shall be treated as if it was regularly filed 1n accordance with the rules of court and the court shall proceed to determine the matter on its merit. R 14 46. Each party shall bear own costs. Delivered at Lusaka this 21 st day of November, 2024 R 15