Futsal and Sports Complex Limited v Philip Sibanda (Suing under a Power of Attorney of Louis Zaragoza Salvado) (Appeal No. 114/2025; CAZ/08/101/2025) [2025] ZMCA 154 (1 December 2025)

,. IN THE COURT OF APPEAL OF ZAMBIA -. HOLDEN AT KABWE Appeal No. 114/2025 CAZ/08/101/2025 (Civil Jurisdiction) BETWEEN: / .. O 1 DEC 2025 FUTSAL AND SPORTS COMPLEX LIMITED APPELLANT AND PHILIP SIBANDA (Suing under a Power RESPONDENT of Attorney of Louis Zaragoza Salvado) Coram: Mchenga DJP, Majula and Muzenga, JJA On 13th October, 2025 and 1 st December, 2025 For the Appellant : Mr. C. Hamwela of Messrs Nchito & Nchito For the Respondent: No Appearance JUDGMENT MAJULA JA, delivered the Judgement of the Court Cases referred to: 1. Augustine Tembo v First Quantum Minerals Limited, Appeal No. 124 of 2015 (SCZ, unreported) 2. 3 . Eustone David Chola v Attorney General, SCZ Appeal No. 200 of 2016 Rajagopala Kothandaraman v Jenala Ngwira, SCZ Appeal No. 163 of J2 4. 5. B ank of Zambia v J onas Tembo & Others SCZ App eal No. 24 of 2002 Zlatan Zlatkoam autovic v Stanbic Bank Zambia Limited, SCZ Appeal No. 08/ 14/ 2020 6. Owners of the Motor Vessel ''Lillian S" v Caltex Oil (Kenya) Ltd [1989) KLR 7 . 8 . Jonathan Lwimba Mwila v World Vision Zambia (SCZ No. 193 of 2005) Cavendish University Zambia Limited v Buchisa Mwalongo (CAZ Appeal 238/2024) 9. Lumus Agricultural Services v Gwembe Valley Development Company Limited (in Receivership) (1999) ZR 1 10. Killian Mwiinga (suing as attorney for Gregory Mainza) v Emmanuel Chama & Others (2023/ HP/ 0505) Legislation referred to: 1. Employment Code Act, No. 3 of 2019 2. Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 3. Authentication of Documents Act, Chapter 75 of the Laws of Zambia Authoritative Texts referred to: 1. Bryan A . Garner, Black's Law Dictionary Thomson Reuters (9th Edition) 2 009 2. Lord Hailsmam, Halsbury Laws of England. 4 th Edition, (London, Butterworths, 1915). 1.0 INTRODUCTION 1. 1 This is an a ppeal again st t h e rulin g of th e High Court for Zamb ia, Industrial Relation s Division, delivered on 4 th February, 2025. In t h a t d ecision , th e learned Judge J3 dismissed the Appellant's application to set aside the Registrar's order granting the Respondent leave to file a complaint out of time. 1.2 The Appellant, Futsal and Sports Complex Limited, is a limited liability company and the former employer of Louis Zaragoza Salvado. The Respondent, Philip Sibanda, appears in these proceedings under a Power of Attorney executed by Mr. Salvado. 2.0 BACKGROUND 2.1 The Respondent commenced proceedings against the Appellant on 12th November 2020 by Notice of Complaint and supporting affidavit under Cause No. COMP/IRC/LK 733/2020. The matter was later reallocated to Judge M. C. Mikalile, who on 1st August 2023 struck it off for want of appearance, with liberty to restore within 30 days. It was ultimately dismissed, and an application to set aside the dismissal was rejected. 2.2 On 28th November 2023, the Respondent filed ex parte summons seeking leave to lodge a complaint out of time, supported by a Power of Attorney. The Registrar granted the application on 29 th January 2024 , directing that the complaint be filed within 14 days. Pursuant to that order, the Respondent filed a fresh complaint under cause No. 2024 / HPIR/ 007 4 , claiming unpaid salary and allowances of €7 ,000, reimbursement of € 1 ,200 for repatriation costs, gratuity, accrued leave, and other benefits under the J4 Employment Code Act1 . He also sought damages for constructive dismissal or redundancy, compensation for loss of income, damages for stress, interest, costs, and further relief. 2.3 Dissatisfied with the Registrar's ruling, the Appellant applied on 2 nd September 2024 to set it aside for want of jurisdiction, invoking section 85(3)(a) of the Industrial and Labour Relations (Amendment) Act No. 8 of 20082 and Rules 33 and 55 of the Industrial and Labour Relations Court Rules3 . On 4 th February 2025, the High Court dismissed that application, upholding the Registrar's order. 3.0 DECISION OF THE LOWER COURT 3.1 On 4 th February 2025, the Court held that the dismissal of the earlier matter did not preclude the complainant from commencing fresh proceedings under a different cause. It further found that the delay in filing the present action was not deliberate and, as such, leave could properly be granted to commence proceedings outside the 90-day limit prescribed by the Industrial and Labour Relations Act2 . In addition, the Court observed that the Respondent had failed to demonstrate that the matter was statute-barred or that the Power of Attorney relied upon by the complainant was improperly auth enticated. 3. 2 Accordingly, the matter was ordered to proceed to trial on 3 rd September 2025, with each party b earing its own costs, and leave to appeal was granted. J5 4.0 GROUNDS OF APPEAL 4 .1 Dissatisfied with the ruling, the Appellant lodged an appeal before this Court on 4 th March 2025, advancing the following grounds: "1. The court below erred in law and in fact when it held that the Respondent's action was not statute-barred despite being commenced three (3) years after the cause of action had arisen and allowing the claim to proceed despite clear statutory provisions barring the action. 2. The court below erred in law and fact by holding that the burden of proof rested on the Appellant to establish that the Power of Attorney was not authenticated, whereas it was the duty of the Respondent to produce a duly authenticated Power of Attorney before the Court. 3. The court below erred in law and fact when it held that the Appellant failed to prove that the Court had no jurisdiction to hear the matter, and failed to consider binding legal precedents that establish that a claim filed outside the statutory period is legally untenable and ought to be struck out at the earliest opportunity and the Court lacked jurisdiction to entertain the claim. " 5.0 APPELLANT'S ARGUMENTS Grounds 1 & 2 5.1 Heads of argument in support of the appeal were filed on 2 nd May 2025. On the first ground, Counsel submitted that the learned Judge erred in holding that the Respondent's complaint was not statute-barred, despite being commenced more than three years after the cause of action arose. It was J6 argued that Section 85(3) of the Industrial and Labour Relations Act requires complaints to be filed within ninety days of exhausting administrative remedies, and that the authorities of Augustine Tembo v First Quantum Minerals Limited1 and Eustone David Chola v Attorney General2 make clear that time may only be extended where sufficient cause is shown before the ninety-day period lapses. Reliance was further placed on Rajagopala Kothandaraman v Jenala Ngwira3 , where the Court stressed that procedural rules ensure order and fairness. Counsel contended that the Respondent failed to act within time, did not meet the statutory threshold, and thereby engaged in forum shopping. 5.2 Turning to the second ground, Counsel argued that the lower court erred in holding that the Appellant had not established lack of jurisdiction. It was submitted that jurisdiction is conferred by statute, and a claim filed outside the prescribed limitation period is legally untenable and must be struck out. Reference was again made to Augustine Tembo 1 and Eustone David Chola2 , which establish that once the limitation period lapses without sufficient cause, the court is divested of jurisdiction. Counsel contended that by disregarding these binding authorities, the lower court misdirected itself and assumed jurisdiction where none existed. Ground 3 5.3 On the third ground, Counsel submitted that the lower court erred in entertaining the matter despite an earlier ruling of Judge Mikalile, which dismissed a related claim, arguing that J7 the Respondent ought to have appealed that decision rather than relitigating the same issues eight months later. The doctrine of res judicata was invoked, with reliance on Bank of Zambia v Jonas Tembo & Others4, where the Supreme Court held that a final judgment of a competent court on the merits is conclusive and constitutes an absolute bar to subsequent proceedings between the same parties on the same cause of action. Further reliance was placed on Zlatan Zlatkoarnautovic v Stanbic Bank Zambia Limited5 , which, adopting the reasoning in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd6 , affirmed that jurisdiction is everything and any orders made without it are nullities. Counsel therefore submitted that the Respondent's complaint was statute-barred, res judicata and incompetent, that the lower court lacked jurisdiction to grant relief, and that its decision ought to be set aside. 6.0 RESPONDENT'S ARGUMENTS 6 . 1 The Respondent did not file any heads of argument 1n opposition. 7.0 HEARING OF THE APPEAL 7 .1 The matter was heard on 13th October, 2025. Learned Counsel, Mr. C. Hamwela, appeared for the Appellant, while there was no appearance for the Respondent. In his oral submissions, Mr. Hamwela contended that the ruling of the court below, if upheld, would sanction an undesirable practice of prosecuting matters through powers of attorney. He argued that such a trend is J8 improper and liable to render proceedings absurd, as it would oblige counsel to cross-examine persons appearing in cou rt merely on the strength of such instruments. He accordingly urged this Court to reverse the decision of the lower court in order to arrest this anomaly and safeguard the proper administration of justice. 8.0 DECISION OF THIS COURT 8 . 1 We have carefully considered the recor d of appeal togeth er with th e well-researched submissions of counsel. Grounds one and three, being closely interrelated, will be addressed together, after wh ich we sh all tu rn to ground two separately. 8.2 Our point of departure is th e law governing the limitation of actions. In particular, Section 85(3) of the Industrial Relations Act provides that: "(3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the Court- (a) within ninety days of exhausting the administrative channels available to the complainant or applicant; or (b) where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that- (i) upon application by the complainant or applicant, the Court may extend the period in J9 which the complaint or application may be presented be/ ore it; 8.3 It is evident from the foregoing provision that a complaint must be filed within the statutory period of ninety (90) days after the exhaustion of domestic procedures. Where, however, a complainant is unable to act within this period, recourse may be had to the Court by way of an application supported with sufficient reasons for the delay. This principle has been consistently affirmed in several decisions of the Industrial and Labour Relations Division of the High Court. The statutory limitation is thus not merely procedural but substantive in character, and non-compliance renders the cause of action statute-barred. 8.4 In the present case, criticism has been directed at the learned trial Judge for holding that the complaint was not statute barred, notwithstanding its having been lodged outside the ninety-day period prescribed under section 85(3) of the Act. It is further contended that the court below erred in assuming jurisdiction in a matter alleged to have been caught by limitation. 8.5 We have given careful consideration to these arguments. While section 85(3) prescribes a ninety-day limitation, it also vests the Court with discretion to enlarge time upon sufficient cause being shown ( see Augustine Tembo v First Quantum Minerals and Eustone David Chola vAttorney Genera~. In the instant case, the trial Judge had due regard to the Registrar's finding that the delay was not deliberate and found no fault JlO therein. We equally discern nothing objectionable in the decision to grant leave to file the complaint out of time. In our view, once such leave was granted, the Judge was clothed with jurisdiction to entertain the matter. Fortification for this position is to be found in the Supreme decision in Jonathan Lwimba Mwila v World Vision Zambia7 and our decision of Cavendish University Zambia Limited v Buchisa Mwalongo, 8 where we held: "In any event, we find that the appellant's argument that the respondent ought to have made the application within the period of 90 days is erroneous. This is because as guided by the Supreme Court of Zambia in the case of Jonathan Lwimba Mwila vs World Vision Zambia, applications for leave to file a complaint out of time are not limited to any specified period because the Industrial Relations Division of the High Court is mandated to do substantial justice. Further that it has jurisdiction to hear such applications regardless of the delay and what was important was the sufficiency of the reasons for the delay. The lower Court was therefore on firm ground in finding that the Industrial Relations Act does not provide for a time limit within which an application for leave to file a complaint out of time can be lodged." 8.6 In light of the foregoing, we are satisfied that the trial court cannot be faulted for holding that the complaint was not statute-barred. Jll Res Judicata 8.7 Turning to ground 2, the Appellant contends that the matter in issue had already been adjudicated upon, rendering all subsequent proceedings null and void. In support of this position, they have invoked the doctrine of res judicata. 8.8 According to the learned author of Black's Law Dictionary, the term res judicata is defined as follows: "Res judicata: An issue that has been de.finitely settled by judicial decision (Judgment). An affirmative defence barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions that could have been but was not raised in the first suit. The three elements are: 1. An earlier decision on the issue 2. A final Judgment on the issue of the original parties. 3. The involvement of the same parties or parties in privity with the original parties." 8.9 We have likewise considered the definition set out by the esteemed authors of Halsbury's Laws of England (4th Edition) at paragraph 1529, which states: "In all cases where the cause of action is really the same and has been determined on the merits and not on some ground ... which has ceased to operate when the second action is brought, the plea of res judicata should succeed. J12 The doctrine applies to all matters which existed at the time of giving the Judgment and which the party had an opportunity to bring before the Court. If, however, there is a matter subsequent which could not be before the Court at that time, the party is not stopped from raising it. " 8. 10 It is clear to us from the foregoing that the doctrine of res judicata bars re-litigation of a cause of action that has already been determined on its merits, including all matters that could have been raised at the time. However, it does not preclude issues arising from subsequent events that could not have been placed before the court in the earlier proceedings. 8 . 11 For the defence of res judicata to prevail, there must be a final judgment rendered on the merits by a court of competent jurisdiction, conclusively determining the respective rights of the parties. We find it fitting to adopt the guidance of the Supreme Court in Bank of Zambia v Jonas Tembo & Others4, where the Court observed as follows: "In order that a defence of res judicata may succeed, it is necessary to show that not only the cause of action was the same, but also that the plaintiff has had an opportunity of recovering, and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger or that the same point had been actually decided between the same parties. Where the former judgment has been for the defendant, the conditions necessary to conclude the plaintiff are not less J13 stringent. It is not enough that the matter alleged to be concluded might have been put in issue, or that the relief sought might have been claimed. It is necessary to show that it actually was so put in issue or claimed. " 8. 12 In our considered view, the circumstances of this case reveal that no final judgment on the merits was rendered by a court of competent jurisdiction. The matter in contention has therefore not been conclusively determined as to the respective rights of the parties. Guided by the authority in Bank of Zambia v Jonas Tembo & Others, 4 we are driven to the inescapable conclusion that the defence of res judicata is unavailable to the Appellant. 8.13 In view of the foregoing analysis, we find no merit in Grounds 1 and 3 of the appeal, which are accordingly dismissed. Power of Attorney - Ground 2 8. 14 The grievance raised under this ground of appeal arises from the learned Judge's ruling that the burden of proof lay on the Appellant to establish that the power of attorney had not been authenticated. It is contended, however, that the duty properly rested on the Respondent to place before the Court a duly authenticated power of attorney. 8.15 We have considered the provisions of the Authentication of Documents Act, which under section 3 stipulates as follows: "3. Any document executed outside Zambia shall be deemed to be sufficiently authenticated for the purpose of use in Zambia if- J14 (a) in the case of a document executed in Great Britain or Ireland it be duly authenticated by a notary public under his signature and seal of office; (b) in the case of a document executed in any part of Her Britannic Majesty's dominions outside the United Kingdom, it be duly authenticated by the signature and seal of office of the mayor of any town or of a notary public or of the permanent head of any Government Department in any such part of Her Britannic Majesty 's dominions; (c) in the case of document executed in any of Her Britannic Majesty 's territories or protectorates in Africa it be duly authenticated by the signature and seal of office of any notary, magistrate, permanent head of a Government Department, Resident Commissioner or Assistant Commissioner in or of any such territory or protectorate; (d) in the case of a document executed in any place outside Her Britannic Majesty 's dominions (hereinafter referred to as a "foreign place") it be duly authenticated by the signature and seal of office- How documents executed outside Zambia are to be authenticated (i) of a British Consul-General, Consul or Vice Consul in such foreign place; or (ii) of any Secretary of State, Under-Secretary of State, Governor, Colonial Secretary, or of any other person in such foreign place who shall be shown by the certificate of a Consul or Vice-Consul of suchforeignplace in Zambia to J15 be duly authorised under the law of such foreign place to authenticate such document. " 8.16 The foregoing provision leaves no doubt that any document executed outside Zambia must be authenticated before it can be admitted for use within this jurisdiction. The Supreme Court has pronounced itself unequivocally on this requirement in Lumus Agricultural Services v Gwembe Valley Development Company Limited (in Receivership), 9 where it held that an unauthenticated document is inadmissible. We therefore find merit in the argument advanced by counsel for the Appellant on this point. 8.17 The crux of the dispute is that the document relied upon, the power of attorney, was executed in Spain and thus required authentication. Yet the Respondent has neither indicated where and when it was authenticated, nor identified the authority under whose hand such authentication was effected. To reinforce the argument, it has further been submitted that personal matters ought not to be prosecuted through a power of attorney and that the initiation of employment proceedings in this manner is highly irregular and should not be sanctioned. 8.18 In this regard, we have considered the decision in Killian Mwiinga (suing as attorney for Gregory Mainza) v Emmanuel Chama & Others, 10 cited in support of the Appellant's contention. That case, though emanating from the High Court, underscores the dangers inherent in the conduct of Jl6 personal litigation through powers of attorney and discourages such practice. 8.19 At the heart of this ground is the question of where the Power of Attorney was executed. A careful examination of the document at page 41 of the Record of Appeal shows that the principal, Lluis Zaragoza Salvado, is described as residing in Barcelona, Spain. However, the instrument bears the signature of a witness, one Chitalo Kalasa, identified as an entrepreneur, and is endorsed with the stamp of a Commissioner for Oaths/Notary Public, Mr. Mulenga Mwamba, with a Lusaka address. 8.20 From these features, it is evident that the Power of Attorney was executed in Zambia. The mere fact that the principal's address is in Spain does not, of itself, mean that execution took place there. While the case of Lumus9 underscores the necessity of authenticating documents executed outside Zambia, that principle is inapplicable here, since our finding is that execution occurred within this jurisdiction. 8.21 Accordingly, the Power of Attorney was properly admitted in evidence. The Authentication of Documents Act does not apply to instruments executed in Zambia, and the learned Judge cannot be faulted on this score. This ground of appeal, therefore, lacks merit and is dismissed. 9.0 CONCLUSION 9 . 1 In summary, our decision is as follows: .. Jl7 1. Grounds 1 and 3: These grounds are without merit. The complaint was not statute-barred, and the plea of resjudicata was unsustainable in the absence of a final judgment on the merits by a court of competent jurisdiction. 2. Ground 2: This ground equally fails. The Power of Attorney relied upon by the Respondent was executed in Zambia, and thus did not require authentication under the Authentication of Documents Act. It was therefore properly admitted in evidence. DISPOSAL 9.3 The entire appeal is devoid of merit and is hereby dismissed. The matter shall proceed to trial before the same Judge of the High Court. We make no order as to costs. ' ·······~ i;············· COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE