Mwila v World Vision Zambia (Appeal 193 of 2005) [2008] ZMSC 154 (14 May 2008)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 193/2005 HOLDEN AT LUSAKA (CIVIL JURISDICTION) IN THE MATTER BETWEEN: JONATHAN LWIMBA MWILA APPELLANT AND WORLD VISION ZAMBIA RESPONDENT Coram: Sakala, CJ., Mumba, JJS, Kabalata AJS, 15th May 2007 and 14th May 2008 For the Appellant: In Person For the Respondent: Mr N. Nchito of MNB Legal Practitioners JUDGMENT Mumba, JS, delivered the Judgment of the court. CASE REFERRED TO: 1. ZAMBIA CONSOLIDATED COPPER MINES AND JACKSON MUNYIKA SIAME AND 33 OTHERS, SCZ NO. 21 OF 2004. (UNREPORTED) LEGISLATION REFERRED TO: 1. SECTION 85(3) OF THE INDUSTRIAL AND LABOUR RELATIONS ACT CHAPTER 269 OF THE LAWS This is an appeal against the decision of the Industrial Relations Court whereby the appellant’s application to lodge a complaint out of time was dismissed. -J2- The appellant was employed by the respondent, World Vision Zambia, on 7th May 2001. He was summarily dismissed from employment by letter dated 6th May 2002; which was handed to him on 9th May 2002. He appealed against dismissal; but his appeal was rejected by the respondent. In March 2005, he filed summons for leave to file a complaint out of time before the Registrar in the Industrial Relations Court. The application was opposed by the respondent on grounds of unreasonable delay. The Registrar, in the court below, dismissed the application, stating that the delay was too long. Appellant appealed against the Registrar’s decision to the court below. On 15th September 2005, the appeal was dismissed and the Registrar’s decision was upheld by the court below. He appealed against that decision. The grounds of appeal were as follows: 1. The learned Judge and Honourable Members below erred in the fact that my affidavit in support does not give any proper reason to what caused the delay. 2. The court below erred in finding that I did not explain of “I was trying to sort out the matter -J3- administratively and say no documentary evidence to support my claim”. 3. The court below erred by that they are unable to interfere with the decision of the learned Registrar and by finding the learned Registrar was on firm ground to refuse the application. 4. The court below erred that it is very clear that from 2002 to 2005, the applicant sat on his right. 5. The court below erred that the idea of wishing to apply to file a complaint out of time came as an after thought. 6. The court below erred by dismissing the application. The appellant made oral submissions in support of the appeal. The gist of his appeal was that after his dismissal, he was promised a hearing which, according to him, was never finalized. He was, therefore, exhausting administrative channels; he had approached Legal Resources Foundation in 2003 to assist him in approaching the respondent. He submitted that he had a good case on the merits; that the delay was not deliberate and that the respondent simply lay emphasis on the delay in bringing the matter to court, without more. -J4- Mr Nchito made oral submissions to augment written submissions in the heads of argument. In the written submissions, the respondent dealt with the grounds of appeal collectively. On behalf of the respondent, it was submitted that the appellant’s appeal against dismissal from employment was rejected by the respondent in the same year 2002, there was, therefore, no administrative channel to pursue; the appellant simply slept on his rights. It was submitted that there was no evidence to support the appellant’s claims and that even though the court below had discretion to grant leave to the appellant to file his complaint out of time, the appellant was not a deserving litigant. Finally, it was submitted that the court below was within the law when it dismissed the appellant’s application. To buttress these submissions, the respondent cited the provisions of Section 85(3) of the Industrial and Labour Relations Act, Chapter 269 of the Laws which provide as -J5- follows: "The Court shall not consider a complaint or application unless it is presented to it within thirty days of the occurrence of the event which gave rise to the complaint or application. Provided that upon application by the Complainant or applicant, the Court may extend the thirty day period for a further period of three months after the date on which the Complainant or applicant has exhausted the administrative channels available to that person.” The respondent also cited the case of Zambia Consolidated Copper Mines and Jackson Munyika Siame and 33 Others(l). We have considered the submissions by both parties, we have also looked at the evidence on record and the judgment appealed against. Indeed, the record of appeal shows that after the appeal against dismissal was rejected by the respondent, nothing much was done in terms of initiating court proceedings. There is no evidence to support reasons for the delay so as to bring it within the perimeters of a reasonable -J6- delay; no genuine reasons were cited to the Registrar in the court below at the time when the application to grant leave to file the complaint out of time was made. The provisions of Section 85(3) cited above are clear. We agree with the submissions of the respondent that after the employers rejected the appeal against dismissal, there were no other administrative channels to pursue. The case of Zambia Consolidated Copper Mines and Jackson Munyika Siame and 33 Others(l) cited by the respondent, points out that the limitation period for initiating complaints in the Industrial Relations Court became applicable after amendment by Act No. 30 of 1997. The appellant was employed in 2001 and was dismissed in 2002, long after the limitation for court action was reduced to 30 days after the incident complained of. In addition, this court pointed out in that case that complaints were limited to 30 days from the date of occurrence of the incident complained of but that applications for leave to file complaints out of time were not -J7 limited to any specified period; that is because the Industrial Relations Court is mandated to do substantial justice, it has jurisdiction to hear applications for leave to file complaints out of time regardless of delay; that what was important was sufficiency of reasons for the delay. To submit that the appellant had a good case against the respondent was not a valid reason to move the court. The granting of leave to file delayed complaints requires that discretion is exercised judiciously. Besides, there has to be sufficient reasons for the delay to seek redress in court after the incident complained of; that the case was meritorious is no valid reason to counter the delay, on the contrary, that should have prompted the complainant to go to court early, within the prescribed time. A scrutiny of the evidence on record also shows that the appellant approached Legal Resources Foundation in 2003 to assist him approach the respondent, he only decided to go to court in 2005. We find no valid reason for the delay, there is no merit in this appeal. We dismiss it. We make no order on -J8- costs. E. L. SAKALA CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE ACTING SUPREME COURT JUDGE