Silomba v Zambian Breweries Ltd (Appeal 147 of 2003) [2005] ZMSC 26 (5 October 2005)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 147/2003 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LAWRENCE SILOMBA Appellant AND ZAMBIAN BREWERIES LIMITED Respondent Coram: Lewanika, DC J, Chirwa and Chitengi, JJS on 8th July, 2004 and 5th October, 2005. For the Appellant : Mr. G. C. Mulenga Legal Resources Chambers For the Respondent: Mr. N. K. Mubonda of Messrs D. H. Kemp & Company t _____________________________________________________________________________lX________________________ JUDGMENT ~ Chitengi, JS, delivered the judgment of the court. We regret the delay in rendering this judgment. During the past two years the court has been very busy with the Presidential Election Petition. In this appeal, we shall refer to the Appellant as the Plaintiff and the Respondent as the Defendant, which, is what they were in the Court b§low. J2 The facts of this case are that the Plaintiff was once employed by the Defendant as a general worker up to September, 1994 when he was dismissed for allegedly being drunk. The Plaintiff brought an action in the Industrial Relations Court alleging that he was dismissed on the ground of his social' status and claimed reinstatement in his position of a general worker. The Plaintiff alleged that he was unfairly treated or discriminated against. The Industrial Relations Court dismissed the Plaintiffs case, holding that the Plaintiff had failed to prove that he was treated less favourably than any other employee who found himself in similar situation. ■ The judgment in the Industrial Relations Court was delivered on 20th October, 1995. On 5th May 1998 ,/the Plaintiff commenced an action in the High Court base^. on the same facts now claiming damages for wrongful dismissal, damages for inconvenience and loss of employment and damages for breach of contract. This action was met by the defence of res judicata in that a court of competent jurisdiction had already adjudicated on the issues raised. The Defendant produced to court the judgment of the Industrial Relations Court. The defence of res judicata was raised as a preliminary issue. The case in the court below was fought on the basis that the case in the Industrial Relations Court was one of unfair dismissal while the one in the High Court was one of wrongful J3 dismissal. The learned trial Judge would have none of this. The learned trial Judge characterized the arguments on behalf of the Plaintiff as unnecessary semantics. The learned trial Judge held that the Plaintiff was seeking the same relief as the one he sought in the Industrial Relations Court in a different fashion. Consequently, the learned trial Judge upheld the defence of res judicata and dismissed the Plaintiffs action. The Plaintiff now appeals to this court against the holding of the court below that the defence of res judicata applied in this case. Mr. Mulenga, learned counsel for the Plaintiff, only made oral submissions and also relied on the submissions on behalf of If the Plaintiff in the court below. Mr. Mubonda, learned counsel for the Defendant, filed written heads of argument which he augmented with oral submissions. However, in the view we take of this appeal, we do not intend to recite the submissions. Suffice it to say that we have carefully considered these submissions and the authorities cited therein. J4 We have considered the evidence, the submissions of counsel and the judgment of the court below. We do not have to visit many authorities in order to state the conditions precedent to a successful plea of res judicata. We only refer to paragraph 358 of Halsburys Laws of England 3rd Edition where the learned author states: “In order that the defence of res judicata may succeed, it is necessary to show not only that the cause of action was the same, but also that the Plaintiff had the opportunity of recovering but for his own fault what he might have recovered in the first action that which he seeks to recover in the second. ” In this case we have no difficulty in holding th^t the cause of action in the Industrial Relations Court was the same as that in the High Court and that the Plaintiff had opportunity to get in the Industrial Relations Court what he claimed in the High Court but he failed to prove his case. The arguments by Mr. Mulenga directed at distinguishing unfair dismissal and wrongful dismissal etc. are just an exercise in splitting hairs or, as the learned trial Judge rightly put it, unnecessary semantics. Whether the action is pleaded as unfair dismissal or wrongful dismissal it is an action for dismissal from employment and the remedies are the same. The fact that the Plaintiff in the Industrial Relations Court claimed for J5 reinstatement while in the High Court he claimed damages does not change the situation. In employment cases in the Industrial Relations Court, the Court may refuse reinstatement, though pleaded, and award damages depending upon the circumstances of each particular case. Jn the event we hold that the learned trial Judge was on firm ground when he held that the defence of res judicata applied in this case and we cannot fault him. We find no merit in this appeal and we dismiss it. But having regard to the facts of the case, we make no order as to costs. DEPUTY CHIEF JUSTICE .. sL..... D. K. CHIRWA SUPREME COURT JUDGE PETTERCHI^NGI SUPREME COURT JUDGE