Chongesha v Securiror Zambia Limited (Appeal 102 of 2005) [2014] ZMSC 58 (23 June 2014)

SCZ JUDGMENT NO. 27/2014 P653 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 102/2005 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ELLINGTON DIWELL CHONGESHA APPELLANT AND SECURICOR ZAMBIA LIMITED RESPONDENT CORAM: Mambilima, D. C. J, Chirwa, Mwanamwambwa, J. J. S. On the 11th of February, 2010 and 24th June 2014. For the Appellant: Legal Aid Board For the Respondent: Messrs DH Kemp and Co. JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. John R. Ng’andu V. Lazarous Mwiinga (1988 - 1989) Z. R. 197 (S. C.). 2. Zambia Consolidated Copper Mines Limited V. Richard Kangwa and others (2000) ZR 109 3. Zambia National Holdings Limited and UNIP V. Attorney General (1993-94) ZR 115. 4. Zambia Privitisation Agency V. Chisenga Chibichabo and Zamcargo Zambia Limited (2005) ZR 74 (SC). 5. Zambia Union of Financial and Allied Workers V. Barclays Bank Zambia Appeal No. 209 of 2004 (Unreported). 6. Paton V. Attorney-General and Chona (1968) Z. R. 185 (C. A.) Legislation referred to: 1. Rule 55 of the Industrial Relations Court Rules, Cap 269 of the Laws of Zambia. Other works referred to: 1. Halsbury’s Laws of England, 11th Edition, paragraph 715. When we heard this appeal, Hon. Justice D. K. Chirwa was part of the Court. He has since retired. Therefore, this is a majority Judgment. This is an appeal from the Ruling of the Industrial Relations Court, dated the 17th day of February, 2009. By that Ruling, the Industrial Relations Court refused an application for leave to review the Court’s order to strike out the matter from the active cause list. The brief facts of the matter are that on the 10th of July, 2000, the Appellant brought an action against the Respondent for wrongful dismissal. The matter was sent for mediation but the mediation failed due to non-attendance by the Respondent. The matter was then taken back to the Industrial Relations Court 655 for hearing. Notice of hearing was issued for the 16th of June, 2003. On the 16th of June, 2003, the Appellant was absent before Court while Counsel for the Respondent was present. The Court made the following order: “since the Applicant is absent, the matter is struck out with liberty to restore within 7 days from today. In default of restoration within the stated period, it stands dismissed.” On the 28th of May, 2004, Counsel for the Appellant made an application for leave to review the Court’s order and to restore the matter to the active cause list. Counsel filed an affidavit in support, in which he deposed that he did not receive any notice of hearing scheduled for the 16th of June, 2003. He added that two months later, he heard that the matter had come up and was struck off the active cause list. He continued to state that he was not even served with the order striking out the matter from the active cause list. On behalf of the Respondent, Mr Dean Chanda deposed that a notice of hearing setting the date of hearing of the Complaint for the 16th of June, 2003, was received by the Respondent’s 656 advocates. He deposed that on the date of hearing, the Complainant and his advocate did not attend Court. On the 21st of June, 2004, the Court delivered the following Ruling: “We have considered the arguments and submissions of both Counsel as well as the Affidavit evidence and exhibits attached thereto. In our considered view, we find that of the two contending arguments, Counsel for the Respondent is on firm ground when he says that this Court has no power or jurisdiction to review its own decisions. We are fortified in so saying because the Industrial and Labour Relations Act, Cap 269 does not give this express power to review its own decisions. For the reasons given, this application is dismissed.” The Appellant now appeals against the above Ruling. There is one ground of appeal in this matter and it reads as follows: “The Ruling of the 21st day of June, 2004, as decided by Hon. Mr Nyundo given in the Industrial Relations Court was of errors at law holding that counsel for the Respondent is on firm ground when he stated that the Industrial Relations Court has no power or jurisdiction to review its own Rulings, Judgments or decisions. We are fortified in saying so since the Industrial Relations Act, Cap 269 does not give this Court express power to review its own decisions.” 657 To support the appeal, Counsel on behalf of the Appellant submitted that this Court held in John R. Ng’andu V. Lazarous Mwiinga (1), that: “The trial judge had no jurisdiction to dismiss the appeal for want of attendance of the appellant's advocate. In the absence of proof of service of a notice of the new hearing date, the only course open to the court were to allot a fresh hearing date and to cause notices thereof to be served on the advocates for the parties or to strike the case out of the list and leave it to the parties to make application to restore.” He added that the Respondent did not file an affidavit of service in Court to prove that it had served a copy of the Notice of Hearing on the Appellant. Counsel submitted that pursuant to Rule 55 of the Industrial Relations Court Rules, Cap 269 of the Laws of Zambia, the Industrial Relations Court can review its own decisions. He stated that the Court was established to deliver substantial justice unlike the High Court. He cited the case of Zambia Consolidated Copper Mines Limited V. Richard Kangwa and others (2) to support his argument. On behalf of the Respondent, Counsel submitted that in line with the case of Zambia National Holdings Limited and UNIP V. Attorney General (3), the Industrial Relations Court has 658 limited jurisdiction and that all applications for the grant of specific relief should be brought and made within the stipulations of the Industrial and Labour Relations Act. He submitted that in Zambia Privitisation Agency V. Chisenga Chibichabo and Zamcargo Zambia Limited (4) , the Supreme Court held that the Industrial Relations Court has no power to review its own Judgment or decisions. He added that there appears to be conflicts in Supreme Court decisions in that the Supreme Court, held in Zambia Union of Financial and Allied Workers V. Barclays Bank Zambia (5) that the Industrial Relations Court has power to review its own decisions. He stated that the above decisions go against the principle of stare decisis. He submitted that Rule 55 of the Industrial and Labour Relations Rules is a rule of procedure drawn in the same Act to facilitate the administration of justice in the Industrial Relations Court. He stated that rule 55 only comes into being if a Judgment is not clear and is ambiguous. He argued that according to Halsbury’s Laws of England, 11 th Edition, paragraph 715, were a court takes upon itself to exercise a 659 jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction, must be acquired before Judgment is given. We have looked at the evidence on record and considered the submissions filed by both parties. We have also read the authorities cited by both parties. Our view is that Rule 55 of the Industrial Relations Court Rules should be read together with section 85(6) of the Industrial and Labour Relations Act. Rule 55 provides that- “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.” Section 85 provides that- “The Court shall not be bound by the rules of evidence in civil or criminal proceedings, but the main object of the Court shall be to do substantial justice between the parties before it.” From the above, it is clear that the aim of the Industrial Relations Court is to deliver substantial justice. In the case before us, the matter was struck off from the active cause list and an ‘unless order’ issued that restoration should be within 7 days. There was no service of the Notice of hearing on the Appellant. In 660 our view, this was not justice. The Appellant had no knowledge of the hearing date and therefore, striking out the matter was unfair. The lower court should have reviewed its order and allowed the matter to be restored. This should have been done in accordance with aims and aspirations of the Industrial Relations Court as a Court of substantial Justice. Proceeding in the manner the lower Court proceeded took away the delivery of substantial justice in that the matter was disposed of on a technicality and not on merit. We wish to add that an ‘unless order’ made, like the one in this case, only has effect if there is proof of service on the other side. Without such proof, an ‘unless order’ has no effect. We now come to the argument on stare decisis. We wish to state that this Court still abides by the principle of stare decisis. There is no conflict between the ZPA case and the Zambia Union of Financial and Allied Workers. The view we have taken above is in conformity with the latter decision of Zambia Union of Financial and Allied Workers. We have extended its application in that the powers under Rule 55 are not limited to making the 661 decision clear and unambiguous but extend to doing all such things that will help the Industrial Relations Court deliver substantive justice. However, this should be balanced with the need to prevent it, that is, the Industrial Relations Court, from being used to abuse the court process. Further, in the case of Paton V. Attorney-General and Chona (6), it was held that- “Coming to the principal matters, I find it convenient to deal first with the cross-appeal. Mr Ryan, for the defendant cross-appellant, first argued that Thixton's case was wrongly decided. He submitted that this court was not bound by its previous decisions. The United States Supreme Court, the Supreme Court of the Republic of Ireland, the ultimate courts of Canada, Australia, South Africa and most European countries hold themselves free, if they think it right to do so, to refuse to follow a previous decision. Recently, the House of Lords in England has abandoned its rigid adherence to the rule of stare decisis. I have no doubt that this court as the ultimate Court of Appeal for Zambia is not absolutely bound by its previous decisions. It can, however, only be for very compelling reasons that the court would refuse to follow a decision of the court and only where the court clearly considered that the previous decision was wrong. The relaxation of the rule is not its abandonment and ordinarily the rule of stare decisis should be followed. Abandonment of the rule would make the law an abyss of uncertainty. Sir Ryan urged that it was open to this court to refuse to follow a previous decision which was not unanimous. That, in my view, is not compelling reason. Thixton's case was fully argued and it has certainly not been shown that it was clearly wrong. Indeed I, as the dissenting judge in that case, recognised and recognise that the result which flowed from the majority decision was more in accord with natural justice than that which flowed from the view of the law which I felt compelled to take. This point therefore fails.” From the above, it is clear that without abandoning the rule of stare decisis, this court has power, if there are compelling reasons, to refuse to follow a previous decision. We therefore hold the same view. We strongly feel that in order for the ends of justice to be met, the Industrial Relations Court has power to review its previous decision. For the above reasons, we allow the appeal. We order that the matter be taken back to the Industrial Relations Court for hearing. We order that each party bears its own costs of these proceedings. ……………………………..……………………… I. C. Mambilima DEPUTY CHIEF JUSTICE (Retired) ……………………………………….……………. D. K. Chirwa SUPREME COURT JUDGE ………………………………………….…………. M. S. Mwanamwambwa SUPREME COURT JUDGE