Citibank Zambia Limited v Suhayl Dudhia (CAZ/8/387/2019; CAZ APPEAL NO. 16/2020) [2021] ZMCA 189 (15 December 2021)

IN THE COURT OF APPEAL OF ZAMBIA CAZ APPEAL NO. 16/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CAZ/8/387/2019 CITIBANK ZAMBIA LIMITED 1 6 IJEC 2021 APPELLANT AND SUHAYL DUDHIA RESPONDENT CORAM: KONDOLO SC, CHISHIMBA, NGULUBE JJA On 27th July 2021 and on 16th December, 2021 For the Appellant : Mr. R. Petersen Messrs Chibesakaunda & Co. v'For the Respondent : Mr. J. Madaika of Messrs J&M Advocates RULING KONDOLO SC JA delivered the Ruling of the Court. CASES REFERRED TO: 1. Guardall Security Group Limited v Reinford Kabwe CAZ Appeal No.44/2019 2. Road Transport and Safety Agency v First National Bank Zambia Limited and Josephine Milambo SCZ Appeal No. 127 /2016 3. Mutale-v-Mutale Appeal No. 141/2008. 4. Finsbury Investment Limited v Antonio Ventriglia and Manuela Ventriglia CAZ/08/ 126/2018 5. Antonio Ventriglia, Manuela Ventriglia v Finsbury Investment Limited SCZ Appeal No. 02/2019 R2 of 14 LEGISLATION & WORKS REFERRED TO: 1. The Court of appeal Act No. 7 of 2016, Laws of Zambia 2. The Court of Appeal Rules Statutory Instrument No. 65 of 2016, Laws of Zambia 3. The Supreme Court Rules 1965, 1999 Edition (White Book) 4. Bryan A Garner, Black's Law Dictionary, 8 th Edition. 1. INTRODUCTION 1.1. This Ruling shall address the effect of our Judgment in the case of Guardall Security Group Limited v Reinford Kabwe( 1l in which we held that a Judgment delivered by the Industrial Relations Division of the High Court (IRD) that does not dispose of a matter within a period of one year from the date on which the complaint was filed as provided by Section 19 (3) (b) (ii) of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 (ILRA) is null and void for want of jurisdiction. 2. BACKGROUND 2.1. The Respondent, on 23rd July, 2013 took out a complaint against the Appellant in the IRD which delivered its Judgment on 29th November, 2019 2.2. The Judgment was in favour of the Respondent and this triggered an appeal by the Appellant. R3 of 14 3. NOTICE OF MOTION 3. 1. Before the Appeal could be heard, the Appellant filed a Notice of Motion to raise the following issues: 1) That the matter under Comp No. IRC LK/211/2013 and whose Judgment was delivered on 29th November, 2019 by Honourable Justice E. Mwansa and forms the subject of the appeal was disposed of after one year from the date when the complaint was presented contrary to law and established jurisprudence. The Appellant sought the following orders: i) That the Judgment of Honourable Justice E. Mwansa under Comp No. IRC LK/211/2013 is null and void for the grounds stated above, and ii) Further that the Court should not exercise the discretion to order remit [sic] the matter to the High Court for re-hearing upon the order under (i) above for reasons more particularly revealed in the Record of Appeal and including those articulated in the affidavit filed in support of this motion. R4 of 14 3.2. The Motion was supported by an Affidavit sworn by Mapange Nsapato the gist of which was as follows; a. The failure by the trial court to dispose of the matter within one year of being presented rendered the Judgment null and void. b. This Court should not remit the matter back to the High Court because it was now statute barred. 3.3. In opposing the Motion, the Respondent filed and deposed to an affidavit in which he stated that the Motion sought to introduce a new ground of appeal through the backdoor. Further, the Motion was issued pursuant to provisions that relate to hearings before a single Judge and not the full bench. 3.4. He also stated that the Motion was not only filed outside the time frame ( 14 days) provided by the rules of this Court but was also not signed by the Master of the Court of Appeal. That the Motion was therefore, hopelessly out of time. 4. SUBMISSIONS 4.1. The Appellant filed submissions in support of the Motion that the motion raised a cardinal issue of jurisdiction RS of 14 which the Court was empowered to determine. The case of Road Transport and Safety Agency v First National Bank Zambia Limited and Josephine Milambo (2l was called in aid to support the argument that a jurisdictional issue may be raised at any time. 4 .2. We were reminded of our holding in the case of Guardall Security Group Limited v Reinford Kabwe (1) in which we nullified a Judgment rendered after one year of the presentation of the complaint. The Appellant argued that once a Judgment is declared null and void, the matter ends then and there. 4.3. It was further submitted that whilst our decision in the Guardall Security Group Limited Case (supra) to remit the case to the High Court for re-hearing was sound, it was not an appropriate remedy in casu because the matter had become statute barred. We were urged to grant the motion . 5. THE HEARING 5 .1. At the hearing of the motion, Counsel for the Appellant Mr. Petersen directed us to the case of Mutale v Mutale (3l in which the Supreme Court stated that since the Court of R6 of 14 1 st instance did not have jurisdiction the entire case including the proceedings thereafter were a nullity. 5.2. He submitted that it was fit and proper that before the substantive appeal is heard the question of whether the entire exercise is a nullity must be determined. 5 .3. In rejoinder, Mr. Madaika on behalf of the Respondent agreed with the holding in the case of Mutate v Mutate (supra) but contended that the effect the Appellant wishes to give it, is wrong. According to him, the actual effect of the Mutate Case is to nullify the Appellant's appeal. 5.4. Secondly, he contended that none of the cited provisions empower this Court to hear the Motion as filed by the Appellant. That the only provision which empowers an Appellant to move a Motion against its own appeal is Order 13 Rule 5 (2) Court of Appeal Rules ("CAR") which has a 14-day time frame and that the Appellants were irretrievably out of time. 5.5. Mr. Madaika opined that the Motion was incompetent as Order 7 Rule 1 cited by the Appellant, can only move a single Judge and not the full bench. R7 of 14 5.6. His third an.d last point was that the Appellant sought to move this Court under Order 14A RSC to nullify a Judgement of the lower Court but it was not pleaded. He argued that this matter can be distinguished from the Guardall Case because, in Guardall, there was a specific ground of appeal which asked the Court to look into the validity of the lower Court's proceedings and that was what empowered this Court to consider that issue. 5.7. Counsel suggested that the Appellant was basically abandoning its appeal and then moving this Court under Order 14A. It was his contention that the only way this Court can be moved to determine a Judgement of the lower Court is by lodging an appeal and not by proceeding under Order 14A. 5.8. In closing, he submitted that the Appellant's Motion must fail on its own omission of having cited the wrong law to move this Court and that the relief sought does not meet the requirement of the law and can be distinguished from Guardall Case. 5.9. Mr. Petersen countered the arguments by submitting that Section 8 of the Court of Appeal Act as read together RB of 14 with Order 1 Rule 1 CAR confirms that the practice and procedure before this Court where there is evidence shall be that of the White Book. 5.10. He contended that our Rules do not provide for the determination of an application to dispose of a matter on a point of law. He directed our minds to Order 13 CAR, cited by the Respondent, which provides for a situation where an Appellant intends to raise a preliminary objection to an appeal. He contended that this was not the same as moving the Court on a question of law that would have the effect of determining the matter on a point of law. 5.11. Counsel further submitted that this is not a preliminary objection to an appeal but an invitation to the Court to determine whether the substantive appeal is a nullity so as to avoid wasting the Court's time. 6. OUR DECISION 6.1. We have considered the arguments advanced by both Counsel and in our view the real issues for determination are as follows; a. Whether the Judgment delivered by the lower Court is null and void for want of jurisdiction; and R9 of 14 b. In the event that we find that the trial court lacked jurisdiction, whether this matter is statute barred and cannot, for that reason, be remitted to the High Court for trial. 6 .2. Mr. Madaika's industrious arguments that the Appellants motion should fail on account of their alleged failure to comply with the Court of Appeal rules, cannot prevail because the issue before the Court is one of jurisdiction. 6 .3. A jurisdictional question can be brought up at any stage of the proceedings either by formal application or viva voce; even on appeal, whether or not it was raised in the court below and even where it is not pleaded in the grounds of appeal or filed heads of argument. 6 .4. The nature of jurisdictional questions is that, once they are brought to the attention of the Court, they must be dealt with immediately. This is because if a court decides to proceed without addressing the jurisdictional issue and, it is later established that it h a d no jurisdiction, the court will have wasted both its own time and that of the litigants b ecause the proceedings and everything that Rl0 of 14 flows from them will be rendered a nullity and of no effect. We addressed the issue of jurisdiction in the case of Finsbury Investment Limited v Antonio Ventriglia and Manuela Ventriglia (4l. 6.5. The gravamen of the Appellant's Motion is our decision in Guardall Security Group Limited v Reinford Kabwe (1l where the trial Court delivered a Judgment after a year had elapsed from the date on which the complaint was filed and we set aside the Judgment for want of jurisdiction on account of the trial courts failure to comply with Section 19 (3) (b) (ii) of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 which provides as follows; Section 19 (3) (b) (ii) "The Court shall dispose of the matter within a period of one year from the day on which the complaint or application is presented." 6.6. The Record shows that in casu, the complaint was filed on 23 rd July, 20 13 and Judgment was delivered on 29 th November, 2019 after a period of over six years. Rll of 14 6.7. The trial Court fell foul of Section 19 (3) (b) (ii) and in keeping with our decision in the Guardall Case the Judgment of Mwansa J is accordingly set aside. 6.8. With regard to the question of whether or not the matter is statute barred, we note the Appellant's argument. We agree that the cause of action herein arises from the alleged breach of a simple contract and must therefore be brought to court before the expiry of six years and ordinarily such a matter would be deemed time barred if brought to court after the six-year limit. 6.9. It was argued that this matter cannot be remitted to the High Court for re-hearing because seven years have elapsed from the time the cause of action arose meaning that the matter is statute barred and the Court has no discretion to waive the statute bar. 6.10. Black's Law Dictionary defines the word 'remit' a s , follows; "3. To refer (a matter for decision) to some authority, especially send back (a case) to a lower court <the appellate court remitted the R12 of 14 case to the trial court for further factual determinations>" 6.9 We shall quote what we said in the Guardall Case (supra); "We therefore, allow ground one of the appeal and declare the Judgment delivered by the Hon. Mr. Justice E. L. Musona on 14th December 2018, null and void for want of jurisdiction and set it aside accordingly ............ . We accordingly remit the record to the Industrial Relations Division of the High Court for re-hearing before another Judge of competent furisdiction. In order to comply with the time limit which started running upon presentation of the complaint, we order that the complaint is hereby deemed to have been filed on the date of this Judgment. We further order that parties shall bear their own costs." 6, 10 When it is found that a court acted without jurisdiction, the parties are restored to the state they were in before R13 of 14 the jurisdiction lapsed and the right of a party to litigate is not necessarily put at an end. (See Finsbury Investment Limited v Antonio Ventriglia and Manuela Ventriglia (supra). 6 .11 In this particular instance, the complaint was filed correctly and the only infraction was the Court's failure to dispose of the matter within one year from the date when the complaint was filed. The complaint is still before court because only the Judgment was set aside and therefore, the question of the matter being time barred does not arise. 6 . 12 In the Guardall Case we did not order the parties to commence a fresh action because the complaint was already before court but we went further and deemed the complaint to have been filed on the date of our Judgement. This was for the purpose of providing a reference d a te for the Court to comply with Section 19 (3) (b) (ii) by disposing of the matter within one year of the date of our judgment. 7. CONCLUSION 7 . 1. In the premises, we repeat what we did in the Guardall R14 of 14 Case and accordingly remit the record to the IRD for re hearing before another Judge of competent jurisdiction. In order to comply with the time limit which started running upon presentation of the complaint, we order that the complaint is hereby deemed to have been filed on the date of this Judgment. 7.2 We further order that each party shall bear its own costs. M. M. KONDOLO SC COURT OF APPEAL JUDGE F . M. CHISHIMBA COURT OF APPEAL JUDGE ········~ P. C. M. NGULUBE COURT OF APPEAL JUDGE ············