Development Bank of Zambia v Jacob Lundah Lushinga (APPEAL NO. 82/2020) [2021] ZMCA 233 (6 August 2021)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 82/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DEVELOPMENT BANK OF ZAMBIA APPELLANT AND JACOB LUNDAH LUSHINGA RESPONDENT CORAM: KONDOLO SC, CHISHIMBA AND GULUBE, JJA. On 19th May, 2021 and 6 th August, 2021. For the Appellant: N. Banda- Chanda, R. Mwala and T. Mukuka, Messrs AMW and Company Legal Practitioners. I For the Respondent: S. Kalima-Banda, Messrs and M Advocates. JUDGMENT NGULUBE, JA delivered the judgment of e Court. Cases referred to: 1. 2. Lubunda Ngala and Jason Chulu vs Anti-Conruj ption Commission SJ Number 4 o/2018 Zambia National Holding Limited and Unit d National Independence Party (UNIP) vs The Attorney General (1994) S. J. 22 3. Vangelatos and Vangelatos vs Limited and other, SCZ Judgment Number 35 of 2016 4. Shilling Bob Zinka vs The Attorney-General (1 90-1992) Z. R. 73 -2- 5. Major Richard Kachingwe (suing in his capa ,ity as National Secretary of the Movement of Multiparty Democracy) vs Dr . N lvers Mumba (2013) Vol. 3 Z. R. 6. Zambia National Commercial Bank Plc vs Joseph Kangwa, SCZ Appeal Number 54/ 2008 7. Engen Petroleum Zambia Limited vs Willis Muhanga and Jeromy Lumba, Appeal Number 11 7I2016 8. Zambia Telecommunications Company Limited vs Mirriam Shabwanga and 5 others (2002) Z. R.51 9. New Plast Industries vs The Commissioner o Lands and the Attorney-General (2001) Z. R.51 10. Felix Chipota Mutati and 3 others vs Winrl! .-e Zaloumis, Selected Judgment Number 31 of 2018 Owens Bank Limited vs Bracco and others (1 . 92) 2 All ER 193 at 203 Mcqueen Zenzo Zaza vs Zesco Limited (2018/ICCZ/006) Odys Oil Company Limited vs The Attom • y-General, Constantinos James Papoutsis, SCZ Judgment Number 4 of 2012 14. Amiran Limited vs Robert Bones, Appeal Nu ber 42/2010 Legislation referred to: The Industrial and Labour Relations Rules, Chapter 269 of the Laws of Zambia The Constitution of Zambia, (Amendment) Act 1 umber 2 of 2016 The High Court Rules, Chapter 27 of the La s of Zambia. 11. 12. 13. 1. 2. 3. I I INTRODUCTION 1. This is an appeal against a ruling of the Industrial Relations Division (IRD) of the High Court deli ered by Mwansa, J, on 14th February, 2020, which dismissed the appellant's counterclaim for being frivolous and vexatious and wlas struck off the pleadings, with costs to the respondent. BACKGROUND -3- 2. The background to this appeal is tha the respondent took out a notice of complaint against the app Hant seeking the following reliefs : (i) A declaration that he is entitled o be retained on the payroll until his full terminal benefits ar paid; (ii) Payment of gratuity at contract rate of 35% of total gross earning for three years under the 15th February, 2018 contract; (iii) Payment of unpaid leave days ow ng to the respondent; (iv) Damages for unlawfully withhol ing the respondent's dues and benefits; (v) Damages for loss of use of funds nd for emotional stress; (vi) Interest on all sums found due an payable; (vii) Costs. 3. The appellant filed an answer and aver ed that it was a term of the Employment Contract dated 15th ebruary, 2018 that the respondent was possessed of sufficie t skill and competence to enable him perform his duties and th t he would use reasonable skill and care in the performance of his duties. 4. The appellant averred that the respon ent failed to discharge and perform his duties in accordance with he contract, the law and as agreed. It was further averred that thr respondent's contract was terminated as he was not competent to perform his duties and . . -4- failed to use reasonable skill and car · 1n the performance of his duties. 5. It was averred that the respondent waJs not entitled to be paid all emoluments for the remainder of the L ntract period and gratuity thereon in accordance with claus1 7.3 of the contract of employment. It was stated that t e appellant retained the respondent on its payroll and effected salary payments wrongfully and mistakenly and therefore seeks a efund of the money paid to be offset from the money found owing tl the respondent. 6. According to the appellant, the respo~ dent borrowed money from the appellant in the sum of KS ,700,0~0.00, plus interest secured by a mortgage over Lot No. 23997 / ~ Central Province. It was submitted that the respondent's emplo} ment was terminated on 4 th December, 2018, due to failure to perfol m his duties. 7. It was contended that the respondent t as wrongfully informed that he would be paid his terminal benefitls calculated on the basis of the remainder of the contract peri Id and that he would be maintained on the appellant's payroll and paid his full salary and other benefits from the month of December, 2018 to October, 2019. 8. According to the appellant, the rl spondent's mortgage was discharged and the said amounts w re offset from the wrongly computed tern1inal benefits. The ap ellant then counterclaimed -5- against the respondent for the refund f the sum of K2,629,385 .00 being the sums wrongly paid to the respondent for the period December, 2018 to October, 2019. 9. The appellant further sought a declarat on that the discharge of the mortgage relating to Lot Number 23997 /M Central Province was an error and null and void and that he said property remains encumbered by the mortgage to the a~pellant. The appellant also sought an order that the respondent d~livers the certificate of title for the mortgaged property and that a mortgage be registered on the property. Alternatively, the appeljant sought payment of all sums due and owing by the respondei under the mortgage which stood at K4,322,371.45, as at 4 th Di ember, 2018, all accruing interest as per banking facility until fi al payment with interest on all sums found due. 10. On 31 st December, 2019, the appell , t filed a notice to raise a preliminary issue on a point of law pulsuant to Rule 33 and 34 of the Rules of the Industrial and Labojr Relations Court1 , and the questions of law. Firstly, whether or ot the Industrial Relations Division of the High Court has jurisdiction to deal with claims (i), (iii), (iv) and (v) of the complainant as they would involve the interpretation of constitutional provisions which are the preserve of -6- the Constitutional Court of Zambia. Secondly, the appellant sought the determination of the ques ion whether the Industrial Relations Division of the High Cou t has jurisdiction to grant reliefs that are not related to Industrial Relations matters in light of section 85 of the Industrial and Labou Relations Act1 • 11. In the affidavit in support of notice to raise a preliminary point of law, sworn by James Banda, a partner ·n the firm representing the appellant, Counsel averred that the clams (i), (iii), (iv) and (v) of the respondent's complaint hinge on he interpretation of the Constitution, which is the preserve of the Constitutional Court of Zambia. 12. Counsel went on to aver that the Ind strial Relations Division of the High Court does not have jurisdic ion to deal with the issues, as the appellant disputes that what ·s purportedly owed to the respondent falls within the ambit of a ension benefit, as provided for in Article 189 of the Constitution. 13. It was further contended that the app llant denies that a pension benefit can accrue where a former e ployee did not render any services . According to Counsel, the In ustrial Relations Division of the High Court will be called upon to i terpret the import of Article 189 of the Constitution of Zambia and that the Industrial Relations Division of the High Courts jurisdiction is limited to -7- disputes revolving around industrial relations matters and can merely grant reliefs related to those m tters and is not competent to hear and determine the reliefs that the appellant sought in the counterclaim. 14. The respondent filed an affidavit in pposition to the notice of motion to raise a preliminary issue on a point of law and averred that the appellant's affidavit was wrongly deposed by an advocate in a contentious application which is a strongly discouraged practice which should not be overlooke 1 • 15. He averred that he did not commefl ce an action seeking the interpretation of the Constitution but r • ther seeks the enforcement of his right to remain on the payroll until payment of his dues, as acknowledged and acceded to by the appellant for ten months at its own volition. According to the responde t, the appellant acquiesced to the provisions of the Constitution y maintaining him on the payroll for ten months. 16. The respondent averred that by filing an Answer and Counterclaim on 14th January, 2020, this negated thl preliminary issue raised by the respondent and did not make any f eference to the need for the Constitutional Court's interpretation. The respondent averred that the lower court had jurisdiction to dek with the matter before it -8- and urged the court to dismiss the app llant's application as it was an abuse of court process to delay justi e. DECISION OF THE HIGH COURT 17. In determining the preliminary issue r · sed on a point of law, the court stated that it had no power to interpret the Constitution because such powers are vested in t e Constitutional Court of Zambia by virtue of Article 128 of the onstitution. The appellant argued that the Constitutional Cou t had already made an interpretation in the case of Lubunda Ngala and Jason Chulu vs Anti-Corruption Commission 1 , in whic the Constitutional Court considered the interpretation of Article 89 of the Constitution and also settled Article 266. The lower cou t took the view that Article 189 had already been interpreted and required no further interpretation by the Constitutional Co rt . 18. Although the court acknowledged tha there are limits to every court's jurisdiction, it was of the view that the appellant had not alerted the lower court of any relief sou ht by the respondent which it could not award. The court then dismissed the appellant's counterclaim for being frivolous and ve atious and struck it off the pleadings, with costs to the respondent. THE APPEAL TO THIS COURT -9- 19. The appellant was dissatisfied with the Ruling of the lower court and appealed to this court advanci1 g six grounds of appeal couched as follows- 1. The Learned Honourable High Court ,Judge erred in law and fact when he found that the respondent kid not alert the court as to any relief being brought by the complainant which the court I cannot award contrary to the evidenbe on record. 2. The Learned High Court Judge err+ in law and fact when he found that there was nothing to interpret in the Constitution as the same was already interpreted in \the Lubunda Ngala case. 3. The Learned Honourable High Cou ~ Judge misdirected himself in determining an application to s t rike out pleadings without hearing the parties. I 4. The Learned Honourable High Court Judge erred in law and fact when he found that the respondent'J counterclaim is a mortgage action which should be commence~ by originating summons contrary to the evidence on record a +d the law. 5. The Learned Honourable Court Ju Jf,ge erred in law and fact when he found that the counterclait is frivolous and vexatious and should be struck out from the pli adings. 6. The Learned Honourable High Co rt Judge erred in law in condemning the respondent in costs, contrary to the law. THE APPELLANT'S ARGUMENTS 20. In support of ground one, it was s bmitted on behalf of the appellant that the appellant alerted the court below that the reliefs sought in claims (i), (iii), (iv) and (v) of the respondent's claims -10- cannot be awarded by the court as the appellant questioned whether the lower court had jurisdictio to grant reliefs not related to industrial relations matters. 21. It was contended that at the hearing o the notice of motion in the lower court, the appellant argued that the reliefs 1n the respondent's complaint bordered on the interpretation of the Constitution or the alleged violation o the Constitution, and that the lower court accordingly misdirect d itself when it bestowed I . 1tse JUns 1ctlon w 1c 1t oes not av~. h. h . d . d. lf . h . 22. It was argued that the appellant's rl usal to pay the demanded sums in the respondent's letter of del and resulted in the suit in the lower court, that the respondent bl retained on the appellant's payroll in accordance with Articl1s 189 and 266 of the Constitution. Counsel relied on thr case of Zambia National Holding Limited and United National Independence Party (UNIP) vs The Attorney General2 where the court observed that- "In its narrow and strict sense, the ''jurisdiction" of a validly constituted court cannot s the limits which are imposed on its power to and determine issues between persons seeking ail themselves of its process by inference (i) (ii) To the subject matter of th issue or To be persons between who~ the issue is formed; or -11- (iii) To the kind of relief sought, or any combination of these factors. 23 . The court was further referred to t e case of Vangelatos and Vangelatos vs Metro Investments Lim ted and other3, where the Supreme Court stated that- "Where a court takes it upon itself to exercise a jurisdiction which it does not p r ssess, its decision to amounts to nothing. Jurisdicti n must be acquired before judgment is given." The above cited case, according to Cou sel serves as authority that courts oug t to h h ave JUns 1ct10n to ear an eterm1ne matters . . d' . I d d . before them and that the court below d es not have the jurisdiction to hear and determine the respond claims for the alleged violation of its constitutional rights is the preserve of the Constitutional Court. 24. On the second ground, it was argued hat the court below erred in law and fact when it found that ther was nothing to interpret in the Constitution as the same was alre dy interpreted in the case of Lubunda Ngala and Jason Chulu vs An i-Corruption (supra). 25 . It was contended that the lower ourt glossed over serious questions that required further interp etation by the Constitutional Court beyond what was espoused ii the Lubunda Ngala case. According to Counsel, the lower court /railed to distinguish the case -12- at hand with the Lubunda Ngala case and failed to appreciate the real issues that require further consideration by the Constitutional Court in this matter. 26. Counsel argued that 1n the Lubunda Ngala case, the court recognized that the terminal benefits that were presented before it (that is, leave pay, uniform and settli! in allowances) are not the only terminal benefits that require ast essment on whether or not they qualify to be a pension, gratuitly, compensation or similar allowance. It was submitted that the L urt in the Lubunda Ngala case dealt with termination of emplo~ment by way of resignation whereas in this case, the termination i as by way of dismissal. 27. The appellant's counsel contended th! in determining this matter, the lower court will be required to adr ress the questions whether the High Court has jurisdiction t i extend the scope of the application of the Articles to cases wit facts that are distinct from the Lubunda Ngala case, whether an employee whose contact has been terminated by way of dismis al can seek redress under Articles 189 and 266 and whether or not a pension benefit, gratuity, compensation or other allowances can accrue to an employee who has not rendered any s ,rvices. 28. Counsel argued that the lower court does not have jurisdiction to proceed and make pronouncement , on the issues highlighted -13- above due to the fact that it will be clalled upon to interpret the Constitution and was therefore require~ to refer the matter to the Constitutional Court. We were urged ~o sustain ground two of the appeal . 29. Ground three is that the Learned Honourable High Court Judge misdirected himself in determining t le application to strike out pleadings without hearing the parties . Counsel for the appellant submitted that the parties were not heard on the respondent's application to strike out pleadings and that the lower court proceeded to determine the respol dent's application without hearing the parties, thus striking out he appellant's counterclaim on the basis that it was a mortgage actjon. 30. Counsel cited the case of Shilling Bob Zinka vs The Attorney General4 where the court stated that- "The principles of natural justice are implicit in the concept of fair adjudication. These principles are substantive principles and are two-fold, namely that no man shall be a judge in his J wn cause, that is an adjudicator shall be disinterest ed and unbiased and that no man shall be conde ned unheard, that is parties shall be given adequate notice and opportunity to be heard (audi alteram parte ). " 31. Counsel fortified his arguments by r , ferring to the case of Major Richard Kachingwe (suing in his capJ city as National Secretary of -14- the Movement of Multiparty Democr cy) vs Dr Nevers Mumba5 where it was held inter alia that- "Where a court is faced with multiple interlocutory application arising in the same case, priority must be given to hearing an applicatio whose outcome will conclusively determine the whole matter." 32. It was argued that the lower court fell i to grave error when it failed to hear the parties on the application o strike out pleadings to the detriment of the appellant and fai ed to appreciate that the appellant's counterclaim was not a ortgage action. We were urged to uphold the third ground of ap 33 . On the fourth ground, it was argued at the learned Judge in the court below in his Ruling found at the counterclaim failed immediately for want of jurisdiction. he court was of the view that Order 30 Rule 13 of the Rules of the High Court3 instructs how a claim relating to mortgages should e instituted. According to Counsel, the lower court struck out t e appellant's counterclaim in its entirety on the basis that it was a mortgage action. Counsel called in aid the case of Pulse ancial Services Limited T/A Entrepreneurs Financial Centre (u cited) in which a mortgage action was defined as- "An action for a claim of mon ys secured by property which claim is accompanied by a bouquet of other -15- reliefs including delivery of possession of the mortgaged properties, foreclosur and sale of the said property." 34. Counsel summitted that the appellant erely sought to reinstate a charge on the property and recover the onies that were due under the said discharged mortgage which c rrently has no security. It was contended that the mortgage in is ue was discharged and that the lower court misdirected itself it asserted that the counterclaim was a mortgage as there was no mortgagee/mortgagor or any charged p operties. 35. According to Counsel, the appellant's c unterclaim was interrelated with the sums claimed by the respond nt and that the lower court erred by dismissing the appellant's co nterclaim on the basis that the claim was a mortgage action. The court was urged to sustain ground four of the appeal. 36 . Ground five is that the lower court e red in law and fact when it found that the counterclaim was f ivolous and vexatious and should thus be struck out from the leadings with costs. It was argued that the lower court found th t the counterclaim failed for want of jurisdiction. The court fo nd the whole counterclaim frivolous and vexatious and it was s ruck off the pleadings, with costs to the respondent. -16- 37. It was argued that the appellant merely sought to reinstate a charge on the property and recover the r onies that were due under the discharged mortgage. We were ur .ed to allow the fifth ground of appeal. 38. Turning to ground six, the appellant's contention was that the lower court failed to warn itself agai I st the danger of awarding costs in the Industrial and Labour Relations Court except in befitting cases . Counsel cited section 44(1) of the Industrial and Labour Relations Act which provides that- "Where it appears to the court thht any person has been guilty of unreasonable delay, + of taking improper, vexatious or unnecessary steps jn any proceedings, or of other unreasonable conclude, the court may make an order for cost or expenses agains~ him." Counsel further cited the case of zl mbia National Commercial Bank Plc vs Joseph Kangwa6 , where t i e Supreme Court held inter alia that- "With regard to costs, Rule 44 of the Industrial Relations Court Rules containe in the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia provides that a party sh , uld only be condemned in costs if they have been guil+- of misconduct in the prosecution or defence of the proceedings." 39 . The court was further referred to t e cases of Engen Petroleum Zambia Limited vs Willis Muhanga an<!, Jeromy Lumba7 and Zambia -17- Telecommunications Company Limited vs Mirriam Shabwanga and 5 others8 on the rationale behind Rul 44(1) of the Industrial and Labour Relations Act, which restricts he discretion of the IRC in the award of costs to instances specified in the Rule. Counsel contended that the court erred in awart ng costs to the respondent as the appellant had not abused 1he court process and its counterclaim was not intended to abu, e the court machinery. The court was urged sustain the sixth groumd of appeal. THE RESPONDENT'S ARGUMENTS 40. Counsel on behalf of the respondent countered ground one and supported the decision of the lower court. It was submitted that the mere fact that being retained on Jhe payroll until payment of dues is a right established by the c l nstitution Amendment Act does not entail that the Constitutional Court is the only court with jurisdiction to grant an order for the etention of an individual on the payroll. According to Counsel, th respondent went before the lower court seeking his rights as a former employee of the appellant, to be upheld. It was argul d that this was within the jurisdiction of the Industrial Relation~ Court as indicated under section 85 of the Industrial and Labour Relations (Amendment) Act, Chapter 269 of the Laws of Zambia. .. .. -18- 41. It was argued that the lower court s on firm ground when it found that the appellant did not alert t e court regarding any relief being sought by the appellant which t e court could not award as the matter in the court below fell within the jurisdiction of the lower court. Counsel prayed that ground one fails. 42 . Counsel also opposed ground two, ar ing that it must fail as the Constitutional Court gave a guide to th lower court on the position it should take regarding the interpret tion of the Lubunda Ngala case. According to Counsel, the Learn d Judge in the court below addressed his mind on the issue jurisdiction and further submitted that there was no need for interpretation other than that which was provided in the nda Ngala case. It was contended that the issues before the court are a pursuit of the respondent's contractual rights do not give nse to interpretation as alleged by the appell t. She prayed that ground two fails as well. 43. Responding to ground three, the court was referred to the case of New Plast Industries vs The Cammi sioner of Lands and the Attorney-General9 on the question of w at amounts to parties being heard in a matter. In the aforestated c se the Supreme Court held that- .. -19- "The contract of what amounts to the hearing of the parties in any proceedings can t ke either the form of oral and written evidence. ere the evidence in support of an application is of affidavit, the deponent cannot be heard to say hat he was denied the rig ht of a hearing simply becau he had not adduced oral evidence." 44. According to Counsel, there was affi avit evidence and skeleton arguments on record which were filed by the appellant's counsel which stated the law and cannot theref re say that the parties were not heard on the application to strif out pleadings. We were urged to dismiss the third ground of ap eal for lack of merit. 45. Responding to the fourth ground of ap eal, Counsel submitted that the appellant's claim is a mortgage acti n as the appellant sought a declaration that the property in issl e relating to Lot Number 23997 /M remams encumbered by a l ortgage . It was contended that the counterclaim was not within he jurisdiction of the lower court as it should have been commenc d by originating summons . 46. According to Counsel, a mortgage acti n cannot be commenced by way of counterclaim and the court was referred to Order 30 Rule 14 of the High Court Rules3 which pro ides that mortgage actions must be commenced by Originating S mmons. Counsel cited the case of Felix Chipota Mutati and 3 o hers vs Winnie Zaloumis10, l -20- where the Supreme Court guided that counterclaim is a separate claim which is independent of the mail action and is adjudicated I upon separately with different outcomes. 47. The Supreme Court went on to guide tJ at the court before which a counterclaim is raised must have jurisr iction to hear it. Counsel contended that the learned trial Judge r as on firm ground when he found that the appellant's countercla··m was a mortgage action which should have been commenced b originating summons. The court was urged to dismiss ground four of the appeal. 48. Responding to the fifth ground of app al, Counsel submitted that the mere commencement of this action ly the applicant is an abuse of court process. Counsel cited the ca, e of Owens Bank Limited vs Bracco and others11 , where the court stated that- "Moreover, this court has juri diction not only to prevent abuses of court process ut also to protect its authority and dignity." 49. According to Counsel, the failure by he appellant to disclose a reasonable cause of action agains the respondent by its counterclaim in the lower court is an l buse of court process and necessitated the dismissal of the couJ erclaim for being frivolous and vexatious. lt was submitted that th e appellant's counterclaim -21- was so unsustainable that it rendered ·t an abuse of court process when it was included in the appellant's swer. 50. The court was urged to dismiss the fifth ground of appeal as Counsel was of the view that the lowe court was on firm ground when it awarded costs to the responde 51. Responding to ground six, it was sub itted that the counterclaim put forward by the appellant was vexat ous. It was argued that the appellant knowing that the lower cour did not have jurisdiction to entertain its counterclaim went ahead o file the said counterclaim, thus making it an abuse of court proc ss. It was argued that the lower court was on firm ground wh n it awarded costs to the respondent. APPELLANT'S HEADS OF ARGUMENT IN 52. The appellant responded to the res ondent on ground one by stating that the Constitutional Cou t is the correct forum to adjudicate a matter of this nature ue to the reliefs that the respondent seeks as they border on the violation of the Constitution. Regarding the jurisdicti n of the lower court, it was submitted that the right that the re pondent seeks should have been pursued in the Constitutional Co rt which has the preserve of -22- hearing constitutional matters. We w re urged to allow the first ground of appeal. 53. On the second ground of appeal, it w s submitted that the lower court does not have jurisdiction to proceed and make pronouncements that require the inter retation of the Constitution. The court was urged to find that groun two has merit and allow it. 54 . In response to the third ground of appe 1, it was submitted that the learned Judge in the court below erre by not allowing the parties to argue the application and be heard ccordingly. On whether the appellant's counterclaim was a mor gage action, the appellant responded that the claims in the cou terclaim are not mortgage actions and submitted that the properly consider the issues and accordingly fell into grave error. 55. Regarding the sixth ground of appeal, he appellant responded that the lower court erred in awarding cos s to the appellant as there was no abuse of court process n r has it made vexatious applications. The appellant was of th view that its counterclaim was bonafide. The Court was urged o allow the sixth ground of appeal. COUNSEL'S ORAL SUBMISSIONS 56. At the hearing of the appeal, Mr Mwal , on behalf of the appellant submitted that he would rely on the h ads of arguments filed. He . ., -23- briefly augmented the said arguments y submitting that the lower court had no jurisdiction to determine allegations that border on the violation of the constitution. Mr Mwala cited the case of Mcqueen Zenzo Zaza vs Zesco LimitedT in this regard. Mr Mwala also argued grounds three, four and ilive together and submitted that the lower court misdirected itsL f when it dismissed the appellant's counterclaim on the basis tJ at it was a mortgage action. 57. Mrs Kalima Banda countered Mr Mwall.s arguments by submitting that the Constitutional Court had alre! y interpreted Article 189 of the Constitution and that there was n l need for the parties to go back to the Constitutional Court for interpretation. Mrs Kalima Banda submitted that the court wa . on firm ground when it dismissed the counterclaim for being frivolous and vexatious. CONSIDERATION OF THE MATTER BY TH S COURT AND VERDICT 58. We have carefully read the Record of Appeal, considered the grounds of appeal as well as the spirited arguments by both Counsel. We note that grounds one ld two relate to whether the lower court had jurisdiction to adjudicate upon the respondent's I complaint which, according to the a) ellant, sought reliefs which bordered on the interpretation of the Constitution or the alleged violation of the Constitution. -24- 59. The essence of the respondent's notic of complaint was that he sought to be retained on the appellants payroll until he would be paid his full terminal benefits. He als sought the payment of his unpaid leave days as well as damages f r loss of use of funds. 60. We are of the view that the respond nt's claims as highlighted above were an incidence of his e ployment and that the respondent was well within his right to commence the action relating to the payment of his termin benefits in the industrial relations division of the High Court. he appellant's argument is that the lower court did not have ju isdiction to determine the matter as it entailed that the cour would have to interpret prov1s10ns that related to the Consti ution of Zambia, which it contended, is the preserve of the Consti utional Court. 61. In the Lubunda Ngala case, the Constit tional Court guided that- " . . . it would be wrong to say th tall terminal benefits simply because they arise fro the termination or coming to an end of the employ ent contact, should be considered or interpreted to be he same as a pension benefit." We therefore form the view that the Co stitutional Court guided on what constitutes a pension benefit and we opine that the respondent's claims as per the notice o complaint filed in the lower -25- court are clear and unambiguous and elate to an incidence of his employment. 62. The lower court was therefore on firm ground when it stated that there was no relief sought by the respo dent that it was unable to adjudicate. As earlier stated, we e of the view that the respondent's claims in the notice of co plaint can be adjudicated upon by the lower court without r quiring any constitutional interpretation. We accordingly find merit in grounds one and two of the appeal and they are accordin 63. Ground three relates to whether th lower court was on firm ground when it determined an applic ion to strike out pleadings without hearing the parties. ve weighed the competing arguments of the parties and a perusal of the record from the court below shows that the appellant filed notice of motion to raise a preliminary point of law and the respo dent then applied to strike out the pleadings. 64. The lower court determined the re pondent's application and struck out the appellant's counterclai as it was of the view that it was a mortgage action. What is wo th noting is that the lower court proceeded to determine the respo dent's application to strike out pleadings without hearing the par ies . In the case of Odys Oil -26- Company Limited vs The Attorney-Ge eral, Constantinos James Papoutsis13, the Supreme Court stated hat- "It is fundamental to our advers rial system of justice that the parties should clearly i entify the issues that arise in the litigation so that ea h has the opportunity to responding to the points ma e by the other. The function of the judge is to adjudi ate upon these issues alone." 65. The record from the lower court indica es that the lower court did not hear the parties on the application to strike out pleadings and went on to strike out the appellant's co nterclaim on the basis that it was a mortgage action. The lower c urt accordingly misdirected itself in that regard and we find merit i the third ground of appeal, which we allow . 66. Ground four relates to whether the low r court was on firm ground when it found that the appellant's co nterclaim was a mortgage action which should have been ommenced by originating summons. The bone of contention is whether the appellant's counterclaim was a mortgage action. ccording to Counsel for the appellant, it merely sought to reinsta a charge on the property and recover the monies under the dis arged mortgage which has no security. A perusal of the record rom the lower court shows that the appellant sought a refund oft e sum of K2,629,285.15 as -27- the sum that was wrongfully paid to t e respondent in the period December 2018 to October, 2019. 67. A further perusal of the appellant's c unterclaim on page 46 of the record of appeal indicates that the counterclaim was not only for the recovery of the money that t e respondent borrowed to secure the mortgage over LOT No. 23997 /M Kabwe as the appellant also sought a refund of thJ sum of K2,629,385.15, a sum that was wrongfully paid to the respondent in the period December 2018 to October, 2019. I "fi d . i e are ortJ 1e m our view " . that the lower court erred when it found that the appellant's counterclaim was a mortgage action f s there were other claims in the counterclaim. We find meri in the fourth ground of appeal and it succeeds. 68. Ground five is whether the lower courl was on firm ground when it found that the counterclaim was frivolous and vexatious and I that it should be struck out of the plJ adings with costs. Having found that the counterclaim was not a mortgage action, we are I further of the view that it was not frivr ous and vexatious as was erroneously found by the lower court. We are of the view that the lower court erred and we find m + it in ground five which we allow. J -28- 69. Turning to ground s ix, the issue f awarding costs in the Industrial Relations Division Rule 4 (1) of the Industrial and Labour Relations Rules is instructive s the court can make an order for costs against a litigant f he has been guilty of unreasonable delay, or taking improper vexatious or unnecessary steps in the proceedings, or of other unreasonable conduct. The Supreme Court followe its earlier decisions in the cases of Amiran Limited and Zambia Telecommunications Company Limited s Mirriam Shabwanga and 5 others (supra), where the rational behind rule 44 ( 1) was explained. 70. This is that the IRD was originally est blished as an employment tribunal and the rules were intended o guard against the abuse of court process through unreasona le delays, unnecessary or vexatious applications while ensurin that genuine litigants are not discoura ged from asser ting their rights due to cumbersome rules of evidence and litigation cost to which they could be condemned. 71. We are of the view that the lower cou t misdirected itself when it awarded costs to the respondent s the appellant had not abused the court process through unreasonable delays or I . Ir -29- unnecessary and vexatious applicatio, s. We therefore quash the lower court's order for costs as it was l nwarranted. 72. The net result is that this appeal sub tantially succeeds and the matter is sent back to the !RD of t1 e High Court for hearing before another Judge. Each party s all bear its costs of the action. M. M. KONDOLO sp COURT OF APPEAL J DGE F. M. CHISHIMBA COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE