Morgan Chipunka and Ors v Mopani Copper Mines (Appeal No. 291 / 2022) [2023] ZMCA 333 (23 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA Appeal No. 291 / 2022 (Civil Jurisdiction) BETWEEN: MORGAN CHIPUNKA & 2 APPELLANTS AND MOPANI COPPER MINES RESPONDENT Coram: Kondolo, Majula & Chembe, JJA On 16th November, 2023 and 23rd November, 2023 For the Appellants Mr. V. K. Mwewa of Messrs VK Mwewa & Company For the Respondent No appearance JUDGMENT MAJULA J A, delivered th e Judgm ent of th e Court. Cases referred to 1. Jonathan Lwimba Mwila vs World Vision Zambia - SCZ Appeal No. 193/2005. 2. Augustine Tembo vs First Quantum Minerals Limited - SCZ Appeal No. 124/ 2015. 3 . Chilumba Gerald vs ZESCO Limited- SCZAppeal 106/ 2014 4. Twampane Mining Co-operative Society Limited vs E and M Storti Mining Limited - SCZ Judgment No. 20 of 2011. J2 1.0 Introduction 1. 1 This is an appeal arising out of the ruling of the High Court (Mumba J.) which held that the appellants' explanation for their failure to file a complaint within 90 days was unsatisfactory. The question falling for determination and at the core of the appeal is simply, whether lack of resources to undertake litigation could be accepted as a valid ground for failure to comply with rules of court. 2.0 Background 2 . 1 The appellants were in an employment relationship with the respondent and were engaged in different positions from the year 2010 to 2012. They were summarily dismissed from employment on 20 th May, 2020. They alleged that they had not been paid terminal benefits. It was common cause that after their dismissal, the appellants never engaged in any administrative processes with the respondent which may have delayed them in filing a notice of complaint within the statutory time frame . 2.2 The appellants made an application for an Order for leave to file a complaint out of time in the High Court, Industrial Relations Division. The application was filed into court on 29th October, 2020 and was made pursuant to section 85(3) of the Industrial and Labour Relations Act 1 . J 3 3.0 Proceedings in the High Court 3. 1 The court below examined the evidence and the law applicable to the application before it. It ultimately arrived at the conclusion that the reason advanced of lack of resources to commence the matter within 90 days was unacceptable. The application was consequently dismissed. 4.0 Ground of Appeal 4.1 Displeased with the decision of the court below, the appellants have graced the doors of the Court of Appeal fronting one ground as follows: "The Honourable Judge in the court below erred in law and fact when he dismissed the appellants' application for leave to file the Notice of Complaint out of time. " 5 .0 Appellants' Arguments 5 . 1 In the heads of argument that were filed on behalf of the appellants on 7 th December, 2022, learned Counsel began by referring us to section 85 (3) of the Industrial and Labour Relations Act 1 which provides that the court may extend time upon application by a party. 5.2 The Court wa s also referred to the case of Jonathan Lwimba Mwila vs World Vision Zambia1 where it was held that leave to file a complaint out of time is not granted as a matter of course as though the pursuer is merely pushing an open J4 door. The Supreme Court further held that the granting of leave to file delayed complaints requires the court to exercise its discretion judiciously. In other words, there have to be sufficient reasons for the delay to seek redress in court after the incident complained of. 5.3 The appellants ' Counsel pointed out that the reason advanced by the appellants is that they lacked the required resources to undertake litigation. The second reason that was advanced was that they had referred the matter to the Labour Office which declined to handle the matter. In addition attempts to engage the respondent proved fruitless. 5.4 It was thus contended that the lower court ought to have addressed all these issues and exercised its discretion to allow the appellants to file the complaint. 6.0 Respondent's Arguments 6.1 In its written arguments filed in response to the appeal, the respondent submitted that section 85(3) gives the High Court discretionary power to extend time upon application by the applicant to file a complaint out of time. That the exercise of this discretion however, ought to be within the law and based on well-defined legal principles which speak of compelling reasons. 6.2 As authority for this submission, the cases of Augustine Tembo vs First Quantum Minerals Limited2 and Jonathan Lwimba Mwila vs World Vision Zambia1 were called in aid. JS Counsel observed that the appellants in this case were not exhausting any administrative channels and they have not shown any plausible reason as to why they failed to commence their action within the requisite time. 6.3 It was therefore spiritedly submitted that the appeal should fail for lack of merit. 7 .0 Hearing of the Appeal 7.1 When the matter came up for hearing on 16th November, 2023, Mr. Mwewa Counsel for the appellant placed total reliance on the record of appeal and the heads of argument that he had filed in support of the appeal on 7 th December, 2022. 7.2 There was no attendance on behalf of the respondent. 8 .0 De c ision o f t h is Court 8.1 We have pondered over the record of appeal and the submissions by counsel for the respective parties. The appellants are disheartened by the fact that the Judge in the court below declined the invitation to extend the time as he found the reasons advanced insufficient to warrant an exercise of his discretion in their favour. They have argued that their case is worthy of positive consideration by the Court. Reasons placed before the court below and in this court are simply that they did not have sufficient resources J6 and in addition, th ey made attempts to engage the Labour Office as well as the r esp ondents albeit unsuccessfu lly. 8.2 Our starting point in dealing with th is m atter are the provisions of section 85(3) of the Industrial and Labour Relations Act 1 which provides as follows: "85(3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the Court- (a) within ninety days of exhausting the administrative channels available to the complainant or applicant; or (b) where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that- (i) upon application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it." 8. 4 It is clear from the above, that ther e are set time frames within which th e court will en tertain a complaint or application . The period given is 90 days of exhausting administrative p rocedures or of th e occu rren ce of the event which gave rise to the complaint or application. J7 8.5 Significant to note is the proviso which gives the court power to extend the time if a party is outside the 90-day window period provided by section 85( 3) . A party is therefore at liberty to apply for extension of time, however, this is not a blank cheque. They must provide sufficient reasons for the delay. 8.6 This position was clearly articulated in the case of Augustine Tembo vs First Quantum Minerals Limited2 where the apex Court expressed itself in the following manner: "Hence, the proviso caters for such a complaint: and allows them to apply for extension of time, giving the reason that prevented them from filing their complaint within the mandatory period. In that event what we said in the Elvis Katyamba case is still applicable. So that, if the complainant gives reasons that are satisfactory to the court and it is established that those reasons occurred before the mandatory period had expired, that will have the effect of suspending the mandatory period; and if the complainant does not unduly delay to file the application from the time that those reasons ceased to prevent him from doing so then his application will be meritorious. But if it is established that the reasons given, good as they sound, only arose after the mandatory period had expired, then again, as we said in the Katyamba case, the court cannot extend the period which has expired." J8 8.7 Another insightful case is that of Jonathan Lwimba Mwila vs World Vision Zambia1 which guides on the use of a court's discretionary power when faced with an application for extension of time. It clearly stated that there is need to be sufficient reasons for the delay and simply stating that the case is meritorious is not a valid reason to counter the delay. The onus is on the complainant to actively pursue their complaint within the prescribed timeframe. 8.8 Having examined a myriad of authorities, we are left with no doubt in our minds that whenever a court is confronted with an application for extension of time, they must look at the sufficiency of reasons as well as the length of the delay. An extension of time will not be granted willy nilly and to borrow from the Supreme Court words in the case of Chilumba Gerald vs ZESCO Limited3 where they stated that: "Leave of the nature that the appellant was seeking in the court below cannot be granted as a matter of course as though the pursuer of such leave were merely pushing an open oor ... " d 8. 9 In light of the foregoing, we take the view that the reasons placed before us which were the same ones in the court below are insufficient. A litigant's indigent state cannot be said to be a valid reason to enable the court grant an extension. Whilst one might sympathize with the impecuniosity of litigants, the court cannot be swayed by sympathy. There are rules of court which must be adhered to. J9 8.10 The other reason advanced, wh ich 1s that th er e were en gagemen ts with the Labour Office as well as with t h e respondent does not come to the aid of the appellants. This is because even assuming they were engaged in ex curia engagem ents, time does not stop running. We recall what was said in the case of Twampane Mining Co-operative Society Limited vs E and M. Storti Mining Limited4 wh ere the court of last resort held as follows: 1. 2. 3. The position of the law is that ex curia settlement discussions do not and cannot stop the time running within which to appeal. (Emphasis ours) To use ex curia settlement discussions as an excuse for failure to comply with the rules of Court is to do so at one's peril. Applications for extension of time should be made promptly. 8.11 On account of the foregoing we are of the view that the court below was on firm ground when it declined leave for an Order for extension of time. Th e Judge cannot be faulted in the manner he exercised his judicial discretion given the in sufficiency of reasons as well as the length of the delay which was a delay of 2 months. We see no reason why they could not have made the application promptly within a few days of being out of time. 8 . 12 We thus find the ground of appeal to be bereft of merit and accordingly dismiss it. JlO 9 .0 Conclusion 9.1 We wish to conclude by reiterating our position that having insufficient resources is not a satisfactory reason for the grant of leave. Secondly, on the aspect of engaging in any settlement or discussions, be it with the labour office or the respondent, does not stop time from running. Failure to abide by stipulated timeframes provided in section 85(3) of the Industrial and Labour Relations Act militates against the appellants. 9.2 For reasons articulated in this judgment, we dismiss the appeal accordingly for want of merit. 9.3 The matter having emanated from the Industrial and Labour Division of the High Court, each party shall bear their own costs. M. M. Kondolo , SC COURT OF APPEAL JUDGE ·········J.~ ............ . B. M. Majula COURT OF APPEAL JUDGE .............. ~('.1,~ .............. . Y. Chembe COURT OF APPEAL JUDGE