Isaac Ngoma v Brian Manyando (2024/ HPIR/ 646) [2024] ZMHC 232 (17 September 2024)

IN THE HIGH COURT FOR ZAMBIA 2024/ HPIR/ 646 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: ISAAC NGOMA (Suing as Gcner iec et. of the Zambia National Union of Tec er (cid:9) ? / 1? t. COMPLAINANT AND 5, BRIAN MANYANDO (Sued as President of the (cid:9) RESPONDENT Zambia National Union of Teachers) Coram: Chigali Mikalile, Jon 17th September, 2024 For the Complainant: Mr. T. Chali - Messrs Tresford Chali Legal Practitioners For the Respondent: Mr. M. Kasaji - Messrs CL Mundia & Company Legislation referred to 1. The Industrial Relations Court Rules, Chapter 269 Cases referred to: 1. St. Mary's Secondary School v. Nyirenda (2013) ZMSC 34 2. Concrete Pipes and Products Limited v. Kinsley Kabimba & Christopher Simukoko, SCZ Appeal No. 14/2015 (cid:9) 3. American Cyanamid Company v. Ethicon Company Ltd (1975) AC 396 4. Shell and BP Zambia Limited v. Conidaris and Others (1975) ZR 174 S. Kekeiwa Samuel Kongwa v. David Nkhata, Appeal No. 102/2013 6. Hastings Obrian Gondwe v. BP Zambia Limited (1997) S. J. 1 (S. C.) Text referred to: 1. Matibini, P. Zambian Civil Procedure: Commentary and Cases (2017) Vol. 2. Lexis Nexis Introduction 1. The complainant, who was elected General Secretary of the Zambia National Union of Teachers on 10th December, 2022, was handed a letter of dismissal on 31st July, 2024. According to the complainant, the respondent acted ultra vires as neither he nor the National Executive Committee of the Union (NEC) has the power to dismiss an elected official. 2. It is against this background that the complainant filed his complaint on 7th August, 2024 seeking amongst other reliefs: a declaration that his dismissal from his elective position is illegal; an order for reinstatement and; an order of interim injunction restraining the respondent from interfering with and harassing him in his position. 3. I directed that the injunction application be heard interpartes. When the matter came up for hearing, it was brought to the fore that the respondent had, in addition to opposing the injunction R2 application, filed a notice of motion to raise preliminary issue pursuant to Rule 33 of the Industrial Relations Court Rules, Chapter 269. The preliminary issue questions the propriety of the complaint before court as the complainant had not exhausted administrative remedies available to him as laid down in the Union's Constitution. 4. Quite clearly, it is cardinal that the jurisdiction issue is dealt with first. Counsel for both parties were agreed that I could consider the preliminary issue on the documents before me and proceed to consider the injunction application in a similar fashion should I find no merit in the preliminary issue. Respondent's case S. In the affidavit in support of the notice to raise preliminary issue, the respondent averred that after assuming his duties as General Secretary, the complainant continued receiving a full Government salary and the Union would then mark up the difference in order to achieve a full salary of his position. However, before the Ministry of Education could approve his secondment and remove him from its payroll, the complainant, in December, 2023 instructed the Union's accounts staff to start paying him a full salary of his position as he alleged that Government had removed him from payroll. Thus, the complainant received 2 full salaries from the Government and the Union for a period of 4 months, that is, from December to March, 2024. R3 6. Following discovery of this anomaly, the respondent charged the complainant who exculpated himself and the matter was referred to the Union's disciplinary committee for action. The disciplinary committee recommended dismissal and the recommendation was referred to the Union's NEC which sat and unanimously resolved to uphold the disciplinary committee's recommendation. 7. It is the complainant's decision to proceed to commence legal action instead of appealing to the Union's National Executive Council or the National Quadrennial Conference of Delegates, whichever came first, that is being impugned by the respondent. 8. In the accompanying skeleton arguments, counsel for the respondent cited Article IV (d) (i) to (vi) of the Union's Constitution (exhibited to the respondent's affidavit) which provides for discipline of members and union officials. Essentially, it provides that once an offence is reported or discovered, the alleged offender shall be charged and his matter referred to the disciplinary committee. Based on the finding, the disciplinary committee makes a recommendation to the General Secretary or the president as was the case herein and the president in turn refers the recommendation to the NEC. Where NEC feels that the case warrants a dismissal or expulsion from the Union, the matter is referred to the National Executive Council or the National Quadrennial Conference of delegates whichever comes first. R4 9 The provision (under sub article (d) (vi)) goes on to state that any member or official disciplined under clause IV shall have the right to appeal to the National Executive Council within a period of 90 days prior to the National Executive Council or the Extra Ordinary National Executive Council or the National Quadrennial Conference of Delegates whichever comes earlier. 10. It was then argued that by not exhausting the administrative remedies available as laid down in the Constitution, the complainant violated the exhaustion of remedies doctrine. The doctrine is premised on the principle that an individual must first pursue all avenues of relief within the institution responsible for the issue at hand before commencing court action. The rational, it was submitted, is to allow institutions to address and potentially resolve the issues before they are escalated to court. The case of St. Mary's Secondary School v. Nyirenda(') was relied on. (cid:9) According to the submissions, the Articles of Association of St. Mary's provided that any dispute should be resolved by the Board of Trustees. However, the respondent bypassed the board and appealed directly to the High Court. The Supreme Court held that by bypassing the board of trustees, the respondent failed to exhaust the internal dispute resolution mechanism and that the High Court should not have entertained the appeal without the internal mechanism being exhausted first. R5 11. Premised on this authority, counsel urged me to dismiss the matter for being prematurely before court. Complainant's case 12. The complainant reacted to the preliminary issue by filing an affidavit in opposition and skeleton arguments. 13. The complainant averred that the Constitution only provides for appeals or administrative procedures against constitutionally made decisions. The respondent's decision to dismiss him was unconstitutional. The NEC has no power to dismiss him as General Secretary but can only suspend him and refer the matter of his dismissal to the National Executive Council. Even the said Council has no power to dismiss him as its member but can only recommend for his dismissal. 14. According to the complainant, the respondent was erroneously quoting Article IV (5) which also refers to recommendation to dismiss and not dismissal but because he is a member of the National Executive Council the correct provision is Article VI (j) (xii) 15. It was further the complainant's averment that he has an option to go to court without exhausting administrative procedures if they are non-existent, or are unduly prolonged or totally ineffective. The quadrennial conference takes place after 4 years. According to the complainant, the atmosphere is hostile R6 that the respondent reported him to the police therefore administrative procedures are not possible. The call out was exhibited to the affidavit. 16. Furthermore, the respondent has replaced him as General Secretary contrary to the union Constitution in Article IV (6) (d) as shown by the letter dated 2nd August, 2024 highlighting the administrative changes. 17. In the accompanying skeleton arguments, counsel for the complainant highlighted Articles VI and IV of the Constitution and argued that Article VI was the applicable provision. He then submitted that there is no provision to take administrative measures on an unconstitutional dismissal as was the case herein. 18. For the argument that the complainant has a choice to either go to court or to follow administrative procedure, the case of Concrete Pipes and Products Limited v. Kinsley Kabimba & Christopher Simukoko(2) was relied on which held as follows: However, an aggrieved employee need not subject himself to any internal administrative disciplinary procedures where these are non-existent, or are unduly prolonged or totally ineffective. Unreasonable refusal for an employee to subject himself to disciplinary procedures could of course have its own repercussions. The extent to which the employee's choice not to submit to internal administrative disciplinary proceedings may R7 react upon the merit of his case, will of course vary from case to case depending on the peculiar circumstances. Our view nonetheless is that refusal to subject oneself to internal disciplinary procedures goes to the credibility of the complaint in court, rather than to the cause of action itself. In other words, a cause of action is not necessarily lost by reason merely of the fact that internal administrative disciplinary proceedings were not concluded or acceded to. In our estimation, failure or refusal to follow or to subject oneself to disciplinary procedures can only go either to strengthening or to weakening the employee's (cid:9) complaint (cid:9) against (cid:9) the (cid:9) employer. 19. It was then submitted that the complainant cannot wait for 4 years for the quadrennial conference. Furthermore, there is evidence of hostility and the complainant has been replaced in his position as General Secretary when the matter is ongoing. Reference was made to Article IV (d) of the ZNUT Constitution which provides that there shall be no co-option before any case is disposed of. Reply 20. In the affidavit in reply, the respondent averred that the Union Constitution provides for 'Decisions' to be appealed against and does not make a distinction of decisions made outside the ambits of the Constitution. The purported unconstitutional decision of the NEC is what ought to have been appealed against to the National Executive Council or the National Quadrennial R8 Conference whichever came first. The respondent insists that the complainant should have exhausted all administrative remedies available to him and not rush to court. Decision 21. I have carefully considered the affidavit evidence and skeleton arguments for and against the preliminary issue. As rightly pointed out by the respondent, this court is clothed with the jurisdiction to determine the issue by virtue of Rule 33(1) of the Industrial Relations Court Rules, Chapter 269 which states: Without prejudice to rule 36, an interlocutory application may be made by giving notice in writing to the Court, specifying the directions or order sought. 22. The sole issue for determination is whether or not the matter is properly before court in light of the fact that the complainant did not exhaust all the administrative remedies available to him as laid down in the Union's Constitution. 23. The record so far reveals that the complainant, as General Secretary, was charged by the Union president, the respondent herein, for receiving double salary. He appeared before the disciplinary committee which recommended that he be dismissed. The recommendation was referred to NEC which resolved to uphold the disciplinary committee's recommendation. (cid:9) The complainant did not appeal this decision but filed his complaint in court. R9 24. According to the respondent, the complainant ought to have exhausted the internal remedies first as guided by the case of St Mary's Secondary School (supra). I must mention here that I searched high and low for this case but my efforts were in vain. 25. On his part, the complainant argued firstly that the body that exercised the power to dismiss him was not bestowed with such powers by the Union Constitution and that there can be no appeal from an unconstitutional decision. Secondly, he argued that he had the option to come to court without exhausting administrative procedures if they are non-existent or are unduly prolonged or totally ineffective. 26. I have carefully read the Concrete Pipes case (supra) relied on by the complainant and indeed it supports his argument that the failure to exhaust administrative remedies does not affect the cause of action. This then means that the fact that the complainant did not appeal to a higher body within the Union does not bar him from filing a complaint in court. The matter is properly before me. 27. I have not overlooked the first argument raised by the complainant that the decision to dismiss him was unconstitutional but I hold the view that addressing that argument would be to delve into the main matter which matter can only be properly determined after a full hearing. R 10 28. Having found that the matter is properly before me, I shall proceed to deal with the injunction application. Injunction application 29. In his affidavit in support, the complainant deposed that in his act of handing him a letter purporting to dismiss him from his elective position of General Secretary, the respondent acted ultra vires as neither he nor the NEC of the Union has the power to dismiss an elected official. 30. The complainant also deposed that the respondent intends to permanently remove him from his position and deprive him of all his privileges. If allowed to tamper with his conditions of service, he will suffer irreparable injury that cannot be atoned for in damages. According to the complainant, he has an arguable case to be determined at full trial and he stands ready to indemnify the respondent if this matter is finally resolved in the respondent's favour. 31. In the affidavit in opposition, the respondent averred that the complainant is a member of the Union but is no longer the General Secretary as he was removed from his position in accordance with the Union's Constitution for committing an offence, that is, receiving a salary from both the Government and the Union for a period of 4 months contrary to the Union's Constitution and the criminal laws of Zambia. R 11 32. The respondent deposed that the NEC's decision to discipline the complainant is not ultra vires as it was made in conformity with the procedure laid down in the Union's Constitution. Removing the complainant from his position is not tampering with his conditions of service as he was merely removed from a position for committing an offence. He remains in gainful employment of the Government thus no irreparable damage shall befall him. 33. The respondent also avers that the complainant has not demonstrated a clear right to relief as he admitted whether expressly or impliedly that he did receive 2 salaries during the period in question even though he could not see the salary from Government as it was deducted to service his own loan from PSPF, which renders him not coming to court with clean hands. 34. He further avers that the positions and privileges within the Union are given by the Union's Constitution which Constitution sets the standards for conduct of its members. If breached, the said Constitution also provides for removal from office and withdrawal of privileges. 35. In the affidavit in reply, the complainant reiterated that the NEC can only recommend for his dismissal to the National Executive Council but has no powers to dismiss him. He was charged for abuse of office but surprisingly he was dismissed for R 12 not being remorseful, being defensive, shifting blame on others and for communicating with other institutions. 36. (cid:9) Both parties filed skeleton arguments for which I am grateful. Decision 37. I have carefully considered the parties' affidavit evidence, skeleton arguments and authorities cited. I am empowered to determine an injunction application by virtue of Rule 38 of the Industrial Relations Court Rules, Chapter 269 which states that: "The court may, on the application of any party, make, as an interim order, any order which under the Act it could make as a final order in the proceedings." 38. The record so far reveals that the complainant was dismissed by the NEC through a unanimous vote on 301h July, 2024 and was advised to appeal within 90 days to the National Executive Council or the National Conference of Delegates, whichever came first. The record further reveals that someone has since been appointed to act as General Secretary. 39. The granting of an injunction is at the court's discretion and it is imperative that this discretionary power is exercised judiciously as guided by a plethora of authorities. Both parties cited the case of American Cyanamid Company v. Ethicon R 13 Ltd 3 an authority which lays down the major guidelines for granting an injunction. Court was also referred to the case Shell and BP Zambia Limited v. Conidaris and Others(' in which the Supreme Court of Zambia held that: A court will not generally grant an injunction unless the applicant has a clear right to relief and unless the injunction is necessary to protect the plaintiff from irreparable injury. Mere inconvenience is not enough. Irreparable injury means injury which is substantial and can never be adequately remedied or atoned for by damages. 40. (cid:9) These authorities are instructive and they establish the following principles: (i) The Applicant ought to show that his right to relief is clear by establishing in his pleadings that there is a serious question for the court to consider. (ii) The alleged wrong being perpetrated by the respondent will result in irreparable injury which cannot be adequately remedied or atoned for by damages. (iii) The balance of convenience tilts in favour of the grant of the injunction. 41. (cid:9) In relation to the first principle, as seen above, the pertinent facts of this matter are fairly straight forward. What is in dispute is whether or not the complainant's dismissal was done in accordance with the Union's Constitution. Clearly, therefore, R 14 (cid:9) (cid:9) there is a serious issue to be tried which issue can only be properly and conclusively determined after a full hearing. 42. The second aspect to consider is whether or not damages would be sufficient recompense. In the case of Kekeiwa Samuel Kongwa v. David Nkhat&5 it was held interalia that: Pleading for damages as a relief in the originating process is acknowledgement that damages would serve as adequate compensation and there is in such event no irreparable injury to be suffered without an interlocutory injunction. 43. A perusal of the complainant's Notice of Complaint shows that he is not seeking damages. (cid:9) The complainant has demonstrated that he was elected to office in December, 2022 for a period of four years and that he was removed before the end of his term in unclear circumstances. In light of the foregoing, I am persuaded that the complainant will suffer prejudice if not granted an injunction pending determination of the matter. 44. Turning to the aspect of balance of convenience, according to Matibini in his book "Zambian Civil Procedure, Commentary and Cases Vol. 1, the balance of convenience test may be expressed in terms of whether the risk of injustice if the interim injunction is refused outweighs the risk of injustice if the injunction is granted. R 15 45. As already recognised, the complainant is likely to suffer prejudice if not granted the injunction. Therefore, the balance of convenience tilts in favour of granting the injunction. 46. Furthermore, in the case of Hastings Obrian Gondwe v. BP Zambia Limited(') , the Supreme Court observed that since there was a probability that the appellant may have been entitled to the relief he was seeking in the main action, he should be granted the interlocutory injunction. 47. Without pre-emptying the decision of the issues which are to be decided on merit and evidence at the trial of the action, it is safe to state that the complainant has sufficiently demonstrated that it is more probable than not that the respondent's decision to dismiss him was not supported by the provisions of the Union's Constitution. The respondent has after all so far not directed court's attention to the provision of the Constitution that grants the NEC power to out rightly dismiss its member. 48. In conclusion, the complainant has satisfied court that there is a serious issue to tried, that damages would not be an adequate remedy and the balance of convenience tilts in favour of granting the injunction. 49. In view of the aforementioned, I am inclined to grant an interim order of injunction restraining the respondent from R 16 interfering with and harassing the complainant in his position as General Secretary pending final determination of the matter. 50. No order is made as to costs and leave to appeal is granted. 51. Parties shall proceed to mediation as per order of this court. Delivered this 17th day of September, 2024. HIGH COURT JUDGE R 17