Matthew Ndhlovu v ZESCO Limited (2023/HP/0744) [2024] ZMHC 314 (27 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: - p UBLIC OF \-\\GI-I COURT OF PRIN ICI PAL 2023/HP/0744 MATTHEW NDHLOVU PLAINTIFF AND ZESCO LIMITED DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Plaintiff Mrs. E. Chibambo - Chomba -Messrs. Manda & Pasi Legal Practitioners. For the Defendant: Ms. J. Kunda and Mr. W. Sakutadika- In house counsel. RULING Cases referred to: 1. Finance Bank Zambia Limited v. Official Receiver (As interim receiver of the estate of Dimitros Mono-Kandilos (in Bankruptcy) and Anor SCZ 8/37 /2019. 2. Antonio Ventrigla v. Finsbury Investment Limited (SCZ Appeal No. 2 of 2019). 3. Zambia National Broadcasting Corporation Limited v. Penias Tembo and Others (SCZ Judgment No. 9 of 1995). 4. ANZ Grindleys Bank (Zambia) Limited v. Chrispin Kaona (SCZ No. 12 of 1995). 5. N. B. Mbazima and others Joint Liquidators of ZIMCO Limited (In Liquidation) v. Ruben Vera (2001) Z. R 43. 6. Victoria Chileshe Sakala v. Spectra Oil Corporation Limited (SCZ Appeal No. 02 of 2018). 7. Benjamin Mwale v. ZESCO Limited (2024/HN/288). 8. Citibank Zambia Limited v. Suhayi (CAZ/ 16/2020). Legislation and materials referred to: 1. The Rules of the Supreme Court of England 1999 Edition. 2. The Employment Code Act No. 3 of 2019. 3. A Comprehensive Guide to Employment Law in Zambia. 4. Words and Phrase Legally Defined. 5. Black's Law Dictionary 8 th Edition 2004. 6. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 1. INTRODUCTION 1. 1 This ruling is in respect of an application for an Order to Dismiss the Matter on a Point of Law. The Defendant seeks a determination of the following point of law: «Whether or not this Court has jurisdiction to hear and determine an employment dispute after thirty days of cause of action.'' 1.2 The application is made pursuant to Order 14A rule 1, Order 33 rule 3 and Order 33 rule 7 of the Rules of the Supreme Court. R2 2. DEFENDANT'S AFFIDAVIT EVIDENCE 2.1 The Defendant's affidavit filed in support was deposed by SIWELWA MUSANI an employee of the Defendant Company. 2.2 The deponent deposed that the Plaintiff's contract of employment was terminated by the Defendant on 8 th April, 2022 as shown by a copy of the letter of termination. The deponent explained that the Plaintiff commenced this action on 8 th May, 2023, which was 396 days after termination of his contract of employment, alleging that the termination was unlawful, wrongful and unfair. That the Plaintiff additionally claimed that he was underpaid and discriminated against in terms of the full _~pay. 2.3 The deponent also deposed that he was advised by the Defendant's counsel seized with conduct of the matter that the Plaintiff ought to have commenced this action within thirty (30) days after termination. The Plaintiff neglected to seek leave from the Court to commence this matter out of time. The deponent maintained that this Court had no jurisdiction to R3 entertain the action that was commenced outside the prescribed statutory period. 3. PLAINTIFF'S AFFIDAVIT IN OPPOSITION 3.1 The affidavit in opposition was deposed to by MATTHEW NDHLOVU, the Plaintiff in the matter herein. The Plaintiff refuted having claimed discrimination in the statement of claim but that he claimed, among other things, damages for unlawful, wrongful, and unfair termination. The Plaintiff averred that he was aggrieved by the payment of acting allowance when he was appointed to the position of Senior Procurement Manager Foreign. 3 .2 The Plaintiff deposed that Mr. Munsaka was appointed as Senior Procurement Manager - Local which was the same grade as he had but that Mr. Munsaka was receiving full pay as opposed to a c ting allowance having been appointed at the same time. 3.3 The Plaintiff further clarified that he was claiming wrongful, unlawful and unfair termination of employment on the basis of redundancy and also underpayment of his separation package. R4 3.4 The Plaintiff also explained that he did not need to commence this action within thirty (30) days of termination of his contract as this matter was commenced by way of writ of summons and not by Complaint. The Plaintiff spelt out that this matter did not revolve around discrimination to warrant the commencement of the action within thirty (30) days and therefore there was no need to seek leave to commence this matter out of time. 3.5 The Plaintiff added that the Court had the jurisdiction to entertain this matter especially that the statutory period 1n question was not applicable . 4. DEFENDANT'S AFFIDAVIT IN REPLY 4.1 The deponent on behalf of the Defendant deposed that the Plaintiff in paragraphs 7 , 10 and 11 of his amended statement of claim alleged that there was a disparity between himself and Mr. Munsaka who was employed at ZESCO as a Senior Procurement Manager - local which raised connotations of discrimination. RS 4.2 He added that he was advised by counsel that the said claims squarely brought the Plaintiff within the provisions of law relied on by the Defendant for an Order to dismiss the matter on a point of law which did not only address discrimination but any allegation of unlawful, wrongful and unfair termination of employment by an employer. 4.3 The deponent maintained the position that the Plaintiff's action was brought outside of the limitation period and was consequently statute barred and therefore improperly before the Court. 5. HEARING 5.1 At the hearing, Mrs. E. Chibambo-Chomba from Messrs. Manda and Pasi Advocates was present on behalf of the Plaintiff and Ms. J. Kunda and Mr. W. Sakutadika both In- House Counsel appeared on behalf of the Defendant. 5.2 In the submissions, learned counsel Ms. Kunda relied on the do cum en ts filed on the record including the skeleton arguments. R6 5.3 Ms. Kunda referred to Order 14A of the Rules of the Supreme Court of England that provides as follows: "(1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings were it appears to the court that - (a) Such question is suitable for determination without a full trial of the action; and (b)Such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. (2) An application under rule 1 may be made by summons or motion or (notwithstanding Order 32 rule 1) may be made orally in the course of any interlocutory application to the Court." 5. 4 Further reference was to Order 33 rule 3 which provides as follows: "The Court may order any question or issue arising in a cause or matter, whether of factor law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give R7 directions as to the manner in which the question or issue shall be stated." 5 . 5 And lastly the Court was referred to Order 33 rule 7 which provides that: "That if it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give judgment therein as may be just." 5.6 Counsel submitted that it was clear from the foregoing provisions that the Court was clothed with the authority to determine preliminary issues on points of law or construction of documents either at its instance or on the application of a -- party to the proceedings. 5. 7 It was apparent that where a party desired to raise a preliminary issue, such a party may do so by summons, motion, or orally during an interlocutory application to the Court. The Defendant had moved the Court by Summons in line with Order 14A of the R8 Rules of the Supreme Court which would dispose the matter completely without trial. 5.8 Ms. Kunda cited Section 52 of the Employment Code Act to demonstrate that the Court had no jurisdiction to entertain this matter. Section 52 of the Employment Code Act provides as follows: "52. ( 1) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee's contract of employment; and (2) An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking. (4) An employer shall not terminate a contract of employment of an employee based on reasons relating to- R9 (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, acting or having acted in the capacity of, an employee's representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or recourse to administrative authorities; ( d) a discriminatory ground under section 5; (e) family responsibilities relating to taking care of a member of an employee's immediate family; (f) absence from work during maternity or paternity leave; or (g) temporary absence from work during sick leave or injury. (6) An employee who has reasonable cause to believe that the employee's services have been terminated contrary to this section may report the matter to an authorised officer under section 121 or, within thirty days of the termination lay a complaint before the court." RlO 5. 9 Counsel referred to Section 5 of the Employment Code which provides that: "(1) An employer shall promote equal opportunity in employment and eliminate discrimination in an undertaking. (2) An employer shall not, in any employment policy or practice discriminate, directly or indirectly, against an employee or a prospective employee- (a) on grounds of colour, nationality, tribe or place of origin, language, race, social origin, religion, belief, conscience political or other opinion, sex, gender, pregnancy, marital status, ethnicity, family responsibility, disability, status, health, culture or economic grounds; and (b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment". 5.10 Ms . Kunda resolved that this matter could only come to this Court within thirty (30) days of the termination of the contract Rl 1 -: of employment. Counsel relied on the conclusion by the learned authors of A Comprehensive Guide to Employment Law in Zambia who stated at page 183 regarding the limitation period for filing employment actions in the High Court: "According to Section 85 (3) of the Industrial Relations Act, an employee must file a complaint within ninety days of exhausting administrative channels. Given that section 52(6) of the Employment Code now provides that a complaint must be within thirty days of termination of a contract of employment, there is clearly a mismatch between the two provisions. The provisions need to be harmonized, but in the meantime, the requirement for complaints before the Industrial Relations Division to be filed will remain within ninety days of exhausting administrative channels, and for those on the General Division of the High Court, the complaint will have to be laid before the court within thirty days of termination." 5.11 Ms. Kunda thus argued that the Court had no jurisdiction to h ear and d e termine this matter on account of Section 52 (6) of the Employment Code. The Plaintiff was alleging that the termination was wrongful, unlawful and unfair as it was allegedly in contr avention of the Employment Code . Rl2 --, 5.12 Further in the statement of claim, the Plaintiff claimed that he was discriminated against compared to Mr. Munsaka, who had similar grade and was offered full pay in his contract. The Plaintiff accordingly placed himself within section 52(4) (d) and 52(6) in the Employment Code Act. 5.13 The Court was also referred to the definition of the term jurisdiction as defined by the learned authors of Words and Phrase Legally Defined as: "By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which e court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over with the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts in order to R13 decide whether it has jurisdiction; but except where the court or tribunal has been given power to determine conclusively whether the facts exist, where a court takes it upon itself to exercise a jurisdiction that does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given." 5.13 Counsel submitted that jurisdiction signified the authority of the court to hear and determine matters brought before it. The authority may be vested in the court by statute, charter or commission under which the court is constituted. In the case of Finance Bank Zambia Limited v. Official Receiver (As Interim Receiver of the Estate of Dimitros Mono-Kandilos (in Bankruptcy) and Anor Ill the Supreme Court stated that: " ... for any court sitting in judgment, having or being imbued with jurisdiction is everything." 5.14 The Supreme Court again in Antonio Ventrigla v. Finsbury Investment Limited 12l quoted and endorsed the Kenya case of the Owners of Motor Vessel Lilian S v. Caltex Oil where it stated that: Rl4 "Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 5.15 In this regard, it was submitted that the action was statute barred and that the Court had no jurisdiction to hear the action and declare any orders. 5.16 On behalf of the Plaintiff, learned counsel M;rs. Chibambo Chomba submitted that Section 52 (4) (d) as read with section 5 of the Employ1nent Code Act did not apply to the Plaintiff as the Plaintiff was not claiming discrimination. Counsel argued that based on the statement of claim, paragraphs 5 to 7, the Plaintiff asserted that he was not claiming to have been discriminated against. The Plaintiff's claim was against the payment of acting allowance after being substantially appointed to the position of Senior Procurement Manager-Foreign. 5.17 This payment of acting allowance went against the conditions of service which only allowed an employee to be paid an acting RlS allowance when they were acting in a position and reverting to their original position. The Plaintiff alleged that he was merely making a comparison of what he was supposed to be entitled to having been employed in the same grade and position as Mr. Munsaka. 5.18 Mrs. Chibambo-Chomba argued that the basis of paragraph 7 was to show the Court that the Plaintiff should not have been paid acting allowance but should have received full pay having been substantially appointed to the position. 5. 19 Counsel argued that the above referred to the discrimination as envisaged in paragraph 5 of the Employment Code that had been cited above. The Court was referred to the case of Zambia National Broadcasting Corporation Limited v. Penias Tembo and Others l3 l where it was held therein that: "The only question to be decided then is whether they were dismissed because of their political affiliation within the terms of section 108 of the Industrial and Labour Relations Act, No. 27 of 1993, which was the Act in force and applicable at the time of the judgment of the Industrial Relations Court, and which reads as follows: R16 --, 108 ( 1) "No employer shall terminate the services of an employee on grounds of race, sex, marital status, religion, political opinion or affiliation tribal extraction or social status of the employee. ( 2 .......................................................................... . (3) The court shall, if it finds in favour of the complainant (a) Grant to the complainant's damages or compensation for loss of employment (b) Make an order for reemployment or reinstatement in accordance with the gravity of the circumstances of each case." As we said in the case of Ngwira v Zambia National Insurance Brokers Limited (1), despite a contract of service's having been properly terminated by notice or pay in lieu in accordance with the contract of employment, the Industrial Relations Court may enquire into the real cause of the termination of a contract, and, if discrimination which the terms of the section is proved, may make the orders referred to in sub section 3. It follows therefore that in this case, although proper notice was given, the respondents are entitled to the remedies under sub section 3 if Rl7 :: their dismissal was tainted by any of the reasons for discrimination referred to in sub section ( 1)." 5. 19 Further reference was made to the case of ANZ Grindleys Bank (Zambia) Limited v. Chrispin Kaona 141 where the Supreme Court held : " ... the reasons for discrimination as set out in section 108 apply, we agree, as we said in the cases of Post and Telecommunications Corporation Limited and Phiri (1) and Ngwira v Zambia National Insurance Brokers (2), that discrimination must come within the subject matter of section 108(2), and a person's position in the hierarchy of an association is not the same as social status. Following those earlier decisions there could be no question of discrimination in this case and consequently no question of reinstatement under the provisions of section 108(2)." 5.20 Mrs. Chibambo- Chomba argued that anchored on the above Supreme Court Judgments which dealt with the issue of discrimination, it was her submission that in order for a Plaintiff or Complainant to be successful in an action for discrimination, Rl8 their grounds must be within the grounds set out in section 5 of the Employrnent Code. 5.21 Counsel maintained that the claim was not within Section 52 (4) (d) which required the complaint to be laid within thirty (30) days. 5.22 It was further submitted that the Defendant argued that the Plaintiff was alleging that termination was wrongful, unlawful and unfair and in contravention of the Employment Code within the meaning of section 52(1) of the Employment Code. Counsel argued that section 52 (1) mandated the employer to state the reasons to the employee for the termination of the contract which, in this case the Defendant informed the Plaintiff of the reasons of termination which was redundancy. The Plaintiff was claiming that there was no redundancy. 5.23 It was . thus submitted that it could be discerned from the statement of claim that there was no redundancy that was happening in the Defendant Company for him to have been declared redundant contrary to his condition of service and Section 55 of the Employment Code. Rl9 : .. 5.24 Additionally, the Plaintiff should have been paid a full salary and on separation, should have been paid his separation package on the grade of Senior Procurement Manager-Foreign. The Defendant therefore acted contrary to the Plaintiff's condition of service. 5.25 In Reply Ms. Kunda reiterated that the statement of claim disclosed that the Plaintiff was aggrieved by his termination, deeming the same to be wrongful, unfair and unlawful. According to paragraph 7, 10, 11 (i) of his amended statement of claim he was alleging that the terms of his employment was different from that of Mr. Munsaka and that he was singled out amongst thousands of employees to be declared redundant. The redundancy was therefore not genuine and the terms of employment were different from that of Mr. Munsaka connoting discrimination on the terms of employment. 5.26 Counsel referred to Section 108 of the Industrial Relations Act which provides as follows: "108. ( 1) No employer shall terminate the services of an employee or impose any other penalty or disadvantage on any employee, on grounds of race, R20 sex, marital status, religion, political opinion or affiliation, tribal extraction or social status of the employee. (2) Any employee who has reasonable cause to believe that the employees' services have been terminated or that the employee has suffered any other penalty or disadvantage, or any prospective employee who has reasonable cause to believe that the employee has been discriminated against, on any of the grounds set out in subsection ( 1) may, within thirty days of the occurrence which gives rise to such belief, lay a complaint before the Court: Provided that the Court may extend the thirty day period for a further three months after the date on which the complainant has exhausted the administrative channels available to him." 5.27 Ms. Kunda fortified this position by referring to the case of N. B. Mbazima and others Joint Liquidators of ZIMCO Limited (In Liquidation} v. Reuben Vera (5 l in which it was stated that: "Quite clearly Section 85(2) and 108 of the industrial and Labour Relations Act show that the jurisdiction of the Industrial Relations Court is limited to settling of I R21 labour disputes falling under the Act. It is an alternative forum to the High Court only in cases of labour disputes. The IRC has limited but exclusive jurisdiction in such labour disputes as provided in section 85(2) and 108 of the Industrial and Labour Relation Act, Cap. 269." 5.28 Counsel argued that this position was later confirmed in the case of Victoria Chileshe Sakala v. Spectra Oil Corporation --· Limited (6 l where the court held as follows: "In passing, we wish to note that, it appears the appellant real grievance is premised on allegations of unfair termination of employment after rendering 13 years of service and barely eight months away from reaching the retirement age of 55, there are also connotations of discrimination on the part of the respondent, as former employer. These grievances clearly fall within the mandate of the Industrial Relations Court (now Labour Division of the High Court). This is the only trial court mandated with powers to delve behind the surface of the matter and establish the real reasons behind the acts complained of, in order to dispense substantial justice to a complainant. The High Court in which the matter was commenced, does not have such powers." R22 5.28 Counsel concluded by submitting that the foregoing provisions of the law stipulated that it was only the Industrial Relations Court that had the authority to delve behind the surface of the matter and establish the real reason behind the termination. Counsel maintained that the Plaintiff was complaining against discrimination and unfair dismissal which was a preserve of the Industrial Relations Division of the High Court . . .......,,, DECISION OF THE COURT 6.1 I have carefully considered the affidavit evidence and submissions presented by the parties which I have taken into account in arriving at this decision. 6.2 This application has been brought before me pursuant to Order 14A rule 1 and Order 33 rule 3 and 7 of the Rules of the Supreme Court which essentially permits the court to make a determination of the matter on a point of law without having to go to trial. 6.3 The Defendant contends that the Plaintiff's action was brought to expose that he was wrongly, unlawfully and unfairly R23 terminated contrary to the Employment Code Act. The Defendant contends that the Plaintiff was actually claiming that he was underpaid in comparison to his counterpart Mr. Munsaka. The Defendant therefore contends that the Plaintiff alleges that he was discriminated against by the Defendant. 6.4 In this regard, it is contended that the Plaintiff's claims fall within section 52 of the Employment Code. That being case, the action is statute barred as the action was supposed to be commenced within a period of thirty days by laying a complaint before court. Therefore, this Court does not have the jurisdiction to hear and determine this matter. 6.5 It has also been argued in the alternative that a reading of the Plaintiff's statement of claim reveals that the Plaintiff is complaining against discrimination and unfair dismissal a preserve of the Industrial Relations Division of the High Court. That this matter should fail on the alternative ground that it is before the wrong Court. 6.6 The Plaintiff on the other hand contends that section 52 (4) (d) does not apply to him on the basis that he is not claiming discrimination. His contention is that his claim is against the R24 payment of acting allowance after being substantially appointed to the position of Senior Procurement Manager-Foreign. That this goes against the conditions of service which only allow an employee to be paid an acting allowance when they are acting in a position and will revert to their original position. 6.7 That any reference to Mr. Munsaka was only for comparison purposes having been employed in the same grade and position. 6.8 Given the foregoing, it is contended that the above does not in any way ref er to discrimination as envisaged in paragraph 5 of the Employment Code. And therefore his claim is not subject to section 52(6) which requires a complaint to be laid within a period of thirty days. 6. 9 I have carefully considered the positions taken by the parties regarding whether the claims by the Plaintiff fall within the ambit of section 52 (6) of the Employment Code. 6.10 This provision reads as follows: "An employee who has reasonable cause to believe that the employee's services have been terminated contrary to this section may report the matter to an authorized officer under section 121 or within thirty R25 days of the termination lay a complaint before the Court." 6.11 In its arguments in support that this Court has no jurisdiction to hear and determine this matter, the Defendant has placed reliance on the conclusion reached by the learned authors of A Comprehensive Guide to Employment Law in Zambia who stated at page 183 regarding the limitation period for filing employment actions in the High Court that: "According to Section 85 (3) of the Industrial Relations Act, an employee must file a complaint within ninety days of exhausting administrative channels. Given that section 52(6) of the Employment Code now provides that a complaint must be within thirty days of termination of a contract of employment, there is clearly a mismatch between the two provisions. The provisions need to be harmonized, but in the meantime, the requirement for complaints before the Industrial Relations Division to be filed will remain within ninety days of exhausting administrative channels, and for those on the General Division of the High Court, the complaint will have to be laid before the court within thirty days of termination." R26 6.12 It is clear from the foregoing that the Defendant's argument is one with what the learned authors stated in the above text. 6.13 Be that as it may, I have had occasion to read the ruling of Hon. Justice Dr. Winnie Sithole Mwenda who is one of the authors of the cited text. She also had an occasion to consider the same issue raised herein in the case of Benjamin Mwale v. ZESCO Limited 17l. 6.14 In analyzing section 52(6) of the Employment Code Act, this is what she stated regarding the quotation from the text which the Defendant has referred to: "However, the authors statement above overlooked the provisions of section 127 of the Employment Code Act as in the event of conflict between the Employment Code Act and another law, resort can be had to section 127 of the Employment Code which reads as follows: Where a contract of employment, collective agreement or other written law provides conditions more favourable to the employee, the contract agreement or other written law shall prevail to the extent of the favourable conditions." R27 6.15 Mwenda J. thus concluded that: "In light of section 127 of the Employment Code, where there were two or more statutes applicable to an employee, such as the Plaintiff herein, the written law which has more favourable conditions, benefits or provisions must apply." 6. 16 By way of guidance to the parties she further stated that: "Ho,vever even in the event that ~e H~!? i::;r:> apply in the circumstances, it is less favourable than six-year limitation period under the Limitation Act. As such, and by way of guidance to the parties, notwithstanding the 30-day limitation in section 52(6) by virtue of section 127 of the Employment Code Act, an employee can bring an action before the General Division of the High Court founded on his contract of employment within six years as this is the more favourable." 6.17 Mwenda J. was quick to clarify that the above holding did not affect the 90-day limitation in the Industrial Relations Division which applied based on section 85 (3) of the Industrial and Labour Relations Act which does not have a similar provision to section 127 of the Employment Code Act. R28 6.18 I must state that I am highly persuaded by the reasoning in the above case and I subscribe to what Mwenda J. stated and adopt her words as my own. 6. 19 Having said that, I have noted that the parties have gone to great lengths in arguing whether the action by the Plaintiff herein brings the matter under the ambit of section 52(6). It is very clear that they are two contending positions and a resolution of the same cannot be done by only analyzing the pleadings. However, whether the section 52(6) applies regarding the time within which to commence this action, this provision is less favourable than the six (6) year limitation period under the Limitations Act. 6.20 What I can clearly state is that since this action is founded on the Plaintiff's contract of employment, I find that the Plaintiff's action is not statute barred and it is properly before this Court as he has the right to bring this action within six years. 6.21 Before I conclude, I will address the Defendant's skeleton arguments in reply wherein it was argued in the alternative that this Court does not have jurisdiction to hear this matter because the statement of claim reveals that the Plaintiff is R29 complaining against discrimination and unfair dismissal a preserve of the industrial Relations Division of the High Court. 6.22 The Defendant therefore seeks this Court to determine whether or not the Plaintiff has been commenced in the correct forum. This is another jurisdictional issue. 6.23 The point of law is not contained in the summons for an order to dismiss matter on a point of law. That notwithstanding, I am alive to the guidance given by the Court of Appeal in the case of Citibank Zambia Limited v. Suhayi 181 where it was stated that a jurisdictional question can be brought up at any stage of the proceedings either by formal application or viva voce, even on appeal whether or not it was raised in the court below and even where it is not pleaded in the grounds of appeal or filed in the heads of argument. 6.24 I am ably guided by what was stated by the Court of Appeal. However, the Defendant raised the issue in the Reply as an alternative argument and the Plaintiff was not given an opportunity to be heard. If the Defendant is still desirous to proceed with the application, they can make a formal R30 application to enable counsel for the Plaintiff respond meaningfully to the issue raised. CONCLUSION 7.12 For the reasons that I have highlighted above in relation to the application to dismiss this matter on a point of law, I find no merit in the application by the Defendant. 7.13 It is accordingly dismissed with costs to the Plaintiff. DELIVERED AT LUSAKA THIS 27TH DAY OF JUNE, 2025 ( - N 2025 M. C. KOMBE JUDGE R31