GMGD Security Services v Benjamin Mbewe (APPEAL NO. 35 OF 2023) [2024] ZMCA 307 (19 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 35 OF 2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: GMGD SECURITY SERVICES APPELLANT AND BENJAMIN MBEWE RESPONDENT CORAM : Chashi, Makungu and Sichinga, JJA ON: 12th and 19th November 2024 For the Appellant: Non-Attendance For the Respondent: Non-Appearance JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1 . Chiragben Rashikbhai Pandoliker v African Banking Corporation Limited (T/a Banc ABC) - CAZ Nom No. 11 of 2018. 2 . Occupational Health and Safety Institute v Jame5 Mataliro - Application No. SCZ/8/11/2022. 3. Martin Nguvulu & 34 Others v Marasa Holdings Limited (t/a Hotel Inter-Continental Lusaka)- SCZ Appeal No. 10~ of 2016. Legislation referred to: 1. The Industrial and Labour Relations Act, No. 139 of Rules referred to: 1. The Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Honourable Mrs Justice Mwaaka Chigali Mikalile, High Court (Industrial Relations Division), delivered on 22 nd November 2022. 1.2 In the said Judgment, the learned Judge opined that the complainant, who is now the Respondent, had proved his case on a balance of probabilities. It was on that basis that she entered Judgment in the sum of K2,048.00, being leave days in the sum of K414.00, 18 days salary in the sum of K 414. 00 and shift allowance or overtime in the sum of K290.00 already received. 1.3 The learned Judge ordered that the Judgment sum was to attract interest at short term deposit rate from the date of filing of the notice of complaint to the date of Judgment and thereafter at commercial bank lending rate. In addition, the learned Judge ordered that costs shall follow the event and were to be taxed in default of agreement. 2.0 BACKGROUND 2.1 The Respondent on 27th December 2021, filed a complaint against the now Appellant claiming the fallowing reliefs: (a) Leave days (b) September salary ( c) Shift allowance ( d) Costs and any other benefits the court may deem fit 2.2 According to the affidavit in support of the complaint, the Respondent was employed as a security guard on 24th December 2020, until 18th September 2021, when he resigned. It was the Respondent's assertion that he tried to pursue his dues but to no avail. That he then engaged the labour office for assistance, but still failed to get his dues, hence commencing the court action. 2.3 According to the said affidavit, the Appellant was forwarded a copy of the Order to file answer within 21 days, dated 12th January 2022, together with the notice of complaint and affidavit in support. Also exhibited is an Order for mediation dated 12th January 2022, which mediation according to the Respondent failed. 2.4 On 11 th March 2022, the Appellant filed a notice of authority pursuant to Rule 57 of The Industrial and Labour Relations Act, No. 139 of 20131, appointing Frederick Mulenga Chinsala as its representative. 2.5 The Court then scheduled 22 nd November 2022, for commencement of trial. On 18th November 2022, three days before commencement of trial, the Appellant filed into court an ex parte summons for leave to file answer out of time, pursuant to Rule 47 of The Industrial Relations Court Rules 1 . 2.6 In the affidavit in support, the Appellant acknowledged being served with an Order to file an answer within 21 days, sometime in January 2022. According to the Appellant, the Respondent on 10th January and 25 th January 2022 approached the Appellant and requested for payment of his dues. That the Respondent was paid all his dues and he stated that he was going to withdraw the case. That however, upon conducting a search on 9 th September 2022, it was discovered that the matter was still active and it had been given a hearing date of 22 nd November 2022. 3.0 DECISION OF THE COURT BELOW 3.1 When the matter came up for trial on 22 nd November 2022, the Respondent was present in person, whilst there was no appearance on the part of the Appellant. Before calling upon the Respondent herein to take the stand, the learned Judge made the following observation: "Matter for trial. I note that the Respondent has ft.led an application to file answer out oj time, but has not appeared today for reasons unknown. Since it is aware of the hearing, J will proceed in its absence." 3.2 After the Respondent's examination in chief, the matter was stood down for Judgment. In the Judgment appearing at pages 5-9 of the record of appeal (th€ record}, the learned Judge noted that the Appellant did not file an answer. Then she went on to state as follows: "However, on l 8th November 2022, almost a year later, it filed summons for an Order for leave to file answer out of time. In the affidavit in support, sworn by the Respondent's proprietor, it was averred that the Respondent was aware of today's hearing. For reasons unknown, no representative of the Respondent appeared. In view of the Supreme Court's guidance in the case of Robert Simeza ll Elizabeth Mzyeche (2011) ZR, Vol 3, that no procedural injustice is occasioned when a party who is aware of the proceedings does not turn up, I proceeded to hear the complaint and make a determination in the Respondent's absence." 3.3 Despite there being no answer, the learned Judge still went on to consider the assertions in the affidavit in support of the summons for leave to file answer out oi time. In the said affidavit, the Appellant was claiming to have paid the Respondent. The learned Judge observed that a close look at the document marked "CG2" on which the allegation of payment was being made, shows that the Respondent did not sign as having received the agreed payment. That on the other hand, the document marked "CGl" showing the K290.00 payment referred to by the Respondent, clearly shows that he signed for the said payment on 11 th January 2022. 4.0 THE APPEAL 4.1 Dissatisfied with the Judgment, the Appellant has appealed to this Court, fronting the fallowing six ( 6) grounds: (i) The court be low erred in law and fact when it didn't hear the Appellant's application to file answer out of time in the interest oj justice; (ii) The court below erred in law and fact when it didn't give a date for the Appellant's application to file answer out of time, nor state any reasons or gave a ruling regarding the refusal granting the application, as the notice of hearing indicated that any interlocutory application in the above cause may be made on or before 22nd day oj November 2022, and Appellant's application was made on the 18th day of November 2022; (iii) The court be low erred in law and fact when it stated that there was no representation on the part of the Appellant, as I the proprietor of the Appellant was present but didn't know that the matter was held in chambers rather than open court, as 1 located the marshal only to be informed that trial had taken place in my absence; (iv) The court below erred in law and fact when it didn't hear the Appellant's application when called into its chambers to deliver the Judgment on the even date; (v) The court below erred in law and fact when it made reference to the affidavit in support oj summons for leave to file answer out of time and concluded that the Respondent didn't sign on the letter marked and exhibited "CG2': without giving the Appellant proprietor a chance to aver and prove that payment was made to the Respondent t hrough filing oj answer out of time; (vi) The court below erred in law and fact when it awarded the Respondent a sum of K2,O48. O0 without the Respondent adducing evidence or calling any witnesses to support the claim, but only stating that the Respondent had proven his claim on a balance of probabilities without awarding a chance for the Appellant to be heard. 5.0 ARGUMENTS IN SUPPORT 5.1 The Appellant was not in attendance at the hearing, having filed a notice of non-attendance on 6 th November 2024. In its heads of argument, the Appellant argued all the six grounds of appeal separately. However, it is evident that grounds one, two, four and five are all speaking to the application to file the answer out of time. The issues being raised are that, the Appellant ought to have been given a return date, despite his application having been filed three days before the date of trial and ought to have been heard. 5.2 In respect of the third ground, it was submitted that the proprietor of the Appellant, Mr George Chiyayika was present, but did not know that the matter was being held in chambers. That he could not locate the marshal! and he was only informed after the matter had been heard that the honourable Judge was going to render Judgment. 5.3 As regards the sixth ground, it was submitted that, the Respondent was paid his leave days, which he tabulated on his own, collected and signed for. The Appellant then goes on to submit on issues pertaining to filing the complaint out of time, which submissions were not speaking to any ground of appeal. The Appellant concluded by asking us to order the Respondent to pay back the money as it was obtained fraudulently, as the Respondent was not entitled to the same. 6.0 RESPONDENT'S HEADS OF ARGUMENT 6. 1 The Respondent did not file his heads of argument and neither was he in attendance at the hearing. 7.0 OUR ANALYSIS AND DECISION 7.1 We have considered the Appellant's arguments and the Judgment being impugned. We shall consider grounds, one, two, four and five together as they are entwined. 7. 2 In the background to this matter, we gave a chronological order of events, right from the commencement of the matter to the Judgment of the court below. It is clear from those events that there was dilatory conduct on the part of the Appellant. The Appellant was served with an Order to file answer in January 2022 and did nothing. Even assuming he was under the belief that the complaint had been withdrawn, in its own words, the Appellant admitted to discovering on 9 th September 2022, after conducting a search that the matter was still active; but still did nothing until three days before the hearing. 7.3 Apart from the dilatory conduct, there was also in our view deliberate inordinate delay on the part of the Appellant as acceded to by the learned Judge in her Ruling of 14th December 2022, in refusing a stay of execution when she had this to say: "On 9 th September 2022, the Respondent's representative by the name of Frederick Mulenga Chinsala conducted a search on the record and noted the date of hearing. Despite learning of the hearing date, the Respondent opted to sit back and only fl.led its application for extension of time within which to fl.le an answer three days before the hearing date. Further there was no representative at the hearing. This court is pressed for time and wilJ not indulge parties with luke warm attitudes in the conduct of their cases. The complaint was fl.led in December 2021, which means almost a year had elapsed by the time the matter came up. The Respondent has no excuse for not filing its application much earlier." 7.4 It would seem from the court proceedings at page 83 of the record, that despite the late filing of the application, the learned Judge was prepared to entertain the Appellant's application to file the answer out of time, but for its absence. The learned Judge was also courteous enough to refer to the Appellant's affidavit in support of the application, in respect to the assertion that the Respondent had been fully paid. 7. 5 Even assuming that the application had been given a return date and heard, we have in a plethora of cases, prominent amongst them the Chiragben Rashikbhai Pandoliker v African Banking Corporation Limited (T/a Banc ABC)1, where we noted that in the exercise of discretion by the court, when a party is seeking to extend time, it is clear that the circumstances and the reasons must be justifiable. In our view, the circumstances and the reasons proffered by the Appellant for the delay in making the application were not justifiable. 7.6 The third ground in our view is superfluous. The record of proceedings clearly shows that there was no representation on the part of the Appellant. The learned Judge cannot be faulted for that, as one cannot claim to be present when not in court. 7. 7 As regards the sixth ground, that is tied to the first set of grounds. The learned Judge based the determination of the matter on the available evidence and did not have to wait for the evidence of the Appellant which deliberately faile.d to file its answer and attend court. 7. 8 The six grounds of appeal have no merit and should be dismissed. We however note that the learned Judge in respect of costs ordered that they follow the event. There are a number of cases as regards the award of costs in the Industrial Relations Division, the latest one being the Supreme Court case of Occupational Health anc Safety Institute v James Mataliro. 2 7. 9 In the aforestated case, Mu tuna JS, had this to say: " ... As for matters in the IRD, Rule 44 of The Industrial Relations Court Rules states in th(: relevant portion as follows: 'Where it appears to the court that an.! person has been guilty of unreasonablf delay, or of taking improper vexatious OJ unnecessary steps in . any proceedings OJ of other unreasonable conduct, the cour1 may make an order for costs or expense . agatns t h" tm .•• " This Order is a departure from the general principle we have set out above because it curtails the power of the Industrial Relations Division to grant costs. The power is limited to instances where a party is guilty of unreasonable delay and conduct in the proceedings. The rationale for this lies in the origin of the Industrial Relations Division which is that it was set up as a tribunal and forum in which an employee or ex-employee would seek redress without having to be exposed to unnecessary costs. We have consistently held that courts adjudicating over IRD matters, even at appellate level, should abide by the provisions of Rule 44 of The Industrial Relations Court Rules, as reflected in our decision in the case of Martin Nguvulu & 34 Others v Marasa Holdings Limited (t/a Hotel Inter-Continental Lusaka) .3" 7. 10 In view of the afore stated the Order on costs i~ C. KMAKUNGU COURT OF APPEAL JUDGE . . COURT F A A, SC L JUDGE