Match Corporation of Zambia Ltd v Nyirenda (Appeal 134 of 2004) [2005] ZMSC 34 (14 November 2005)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CIVIL JURISDICTION) APPEAL NO 134 OF 2004 BETWEEN: MATCH CORPORATION OF ZAMBIA LIMITED Appellant and MATOLA NYIRENDA Respondent For the Appellant: Dr J Mulwila, Ituna Chambers For the Respondent: (In Person) Coram : Sakala, CJ, Chirwa, JS Mushabati Ag. JS on 5th April and 14th November, 2005 JUDGMENT Chirwa, JS. Delivered the judgment of the Court: - Cases referred to: 1. RDS Investments Limited v Joseph Ouseph Moonjelly, SCZ appeal No. 52 of 2. Mwanzi v Morester Farms Limited [1977] ZR 108 In this judgment, we will refer to the appellant MATCH CORPORATION OF ZAMBIA LTD as respondent and the respondent, MATOLA NYIRENDA, as the plaintiff. The plaintiff sued the respondent in the Industrial Relations Court for wrongful dismissal. By his amended complaint, the plaintiff alleged that he was dismissed on 17th March 1994 on discriminatory grounds based on UNION participation. The gist of his J2 complaint was that prior to his dismissal, he was Union chairman of National Union of Commercial and Industrial Workers and they were involved in negotiating better conditions of service for the workers with the respondent. As the negotiations were going on, the workers went on strike and some 94 workers were dismissed. According to the answer by the respondent to the plaintiff's complaint, investigations revealed that the plaintiff was one of the ring-leaders and instigators of the strike and he was dismissed from employment for going on an illegal strike. As the result of the respondent's action of dismissing the plaintiff, the plaintiff commenced the proceedings against the respondent in the Industrial Relations Court on 20th July 1994. The matter dragged on in the Industrial Relations Court for a long time. In 2001 the matter was strike out for non-attendance of the plaintiff but the matter was restored on 30th October 2001. In October 2002, leave was granted to the plaintiff to amend his complaint and the matter came before court for hearing on 6th March 2003. Counsel for the respondent was not present and the record is not clear as to whether Notice of hearing was served on Counsel for the respondent. The court, without any explanation on the record, proceeded to hear the evidence of the plaintiff. At the end of his evidence, the plaintiff indicated that he had one witness to call but his witness was not present. The matter was then adjourned to a date to be notified to the parties. On 3rd April 2003, the court sat but both the plaintiff and his witness and Counsel for the respondent were absent. The court then adjourned J3 in order to “write Judgment according to the facts available before us". The court then rendered its judgment on 7th April 2003. There is nothing on record to show whether the parties were notified of the date of the delivery of judgment. In its judgment, the court awarded the plaintiff emoluments for a period of 18 months effective from 17th March 1994. That sum was to attract interest at Bank of Zambia lending rate from the said date until payment. The plaintiff was also awarded out of pocket expenses. The respondent then applied for leave to appeal out of time which was granted on 4th January 2004. There is only one ground of appeal and this is that judgment was passed without hearing the appellant and as such it was not on merit. On behalf of the respondent, there were filed heads of arguments the gist of which is that the matter was not heard on merit and in this regard the cases of RDS INVESTMENTS LIMITED V JOSEPH OUSEPH MOONJELLY (1) and MWAMBAZI V MORESTER FARMS LIMITED (2) were relied upon. It was further argued that there is nothing on record to show that notices were served on the respondent's advocate. Further this lack of communication was demonstrated when the court after hearing the plaintiff, adjourned the matter to a date to be notified for the court to continue hearing the plaintiff's case but on the alleged adjourned date both the plaintiff and respondent were not present or represented showing that the parties were not notified.. J4 The plaintiff also filed written heads of arguments on his own behalf in which he supported the lower court in determining the matter in the manner it did because the respondent did not give any reason why it did not attend court and that the court was right to proceed with its judgment as the case had taken too long to conclude and that this had caused a lot of hardships on him and that a retrial would be very costly. He further submitted that the lower court took into account the respondent's answer and found that it had no merit. We have gone through the record on appeal to see how the proceedings were handled and also at the judgment. We have also considered the submissions by the parties. From the record of appeal, one evident aspect of lack of good record management is very glaring. On all its sittings, there was no proof of notices of hearing being served on the parties and this is very manifested after the plaintiff had given his evidence and he indicated that he wish to bring one witness to testify on his behalf. The court adjourned the matter to a date to be notified. When the court sat on 3rd April 2003, the plaintiff and his witness and the respondents were not present, this should have dawned on the court that the Notices were not served on the parties and further attempt should have been made to notify the parties. We have no reason not to believe that the respondents were never notified of the hearing dates. Further, when the court reserved its judgment on 3rd April 2003 to write its judgment on the facts available, in its judgment the court never considered the respondents' answer. But on the other hand, it considered J5 the complainant's complaint as filed under Section 5 and it found not proved, but proceeded with the matter based on other grounds in order to do substantial justice. Therefore, in line with our numerous decisions including the cases of RDS INVESTMENT LIMITED V JOSEPH OUSEPH MOONJELLY (1) and MWANZI V MORESTER FARMS LIMITED (2) cited by Counsel for the respondent, this case was not decided on its merits. We therefore allow the appeal. We order a re-trial so that the matter is settled on its merits. Costs will abide the results of the retrial. E L Sakala CHIEF JUSTICE D K Chirwa JUDGE OF THE SUPREME COURT C S Mushabati AG. JUDGE OF THE SUPREME COURT