Mulonga Water & Sewerage Company Limited v Brian Kalumba Mulilo (Appeal No. 242/2022) [2024] ZMCA 49 (30 April 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal No . 242/2022 (Civil Jurisdiction) BETWEEN: MULONGA WATER & SEWERAGfu fi\JR 2D2.4 COMPANY LIMITED APPELLANT AND BRIAN KALUMBA MULILO RESPONDENT Coram: Kondo lo, Maju la and Banda-Bobo, JJA On 28th March 2024 and 30th April, 2024 For the Appellant For the Respondents Messrs. Ndulo & Associates No Appearance JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Masauso Zulu vs Avondale Housing Project Limited (1982) ZR 172 (SC). 2. Attorney General vs Marcus Kampumbe Achiume (1983) ZR. l . 3. Jonathan Sombhani Nayee vs Dobbin Mubanga Lufungulo 11986) ZR 4 7. 4 . Chimanga Changa Ltd vs Stephen Chipango Ngombe - SCZ Judgment No. 5of2010 5. Nkhuwa vs Lusaka Tyre Services Limited (1977) Z. R. 43 6. Bernard Mwewa and Others vs Sable Transport Limited (2015) vol. 1 ZR 7. Kalenga Chansa vs Evelyn Hone - CAZ Appeal No. 134/ 2019 8. Edward Chilufya and 94 Others vs Konkola Copper Mines Plc - SCZ Appeal No. 99 of 2015 J2 9. Gerald Chilumba vs ZESCO Limited - SCZ Appeal No. 106/ 2014 Legislation referred to: 1. Industrial and Labour Relations Act, Chapter 268 of Laws of Zambia 1.0 Introduction 1. 1 The appeal is against the decision of the Honourable Mr. Justice D. Mulenga dated 25 th August, 2021 . The appeal discusses the exercise of judicial discretion by a court when confronted with an application for leave to file a complaint out of time. In addition, it will also interrogate what amounts to sufficiency of reason when determining the aforementioned. 2.0 Background 2.1 The respondent was in an employment relationship with the appellant. He was subsequently summarily dismissed via a letter dated 11 th January, 2019 for offences of gross insubordination, misconduct and acts likely to bring the company into disrepute. 2.2. The respondent challenged the dismissal by way of an appeal within the appellant's structures. The administrative appeal was dismissed on 15th February, 2019 after a hearing. 2. 3 The respondent alleged that on 21s t February, 2 0 19, he appealed against his summary dismissal to the appellanfs Board of Directors to which he has not received a reply. He J3 thereafter renewed the said appeal to the same Board on 26 th February, 2020 but has not yet been graced with a response. 2.4 The respondent consequently applied to the Industrial Relations Division of the High Court for leave to lodge a complaint out of time on 30 th June, 2021. This application was made pursuant to section 85 (3) of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. The reason he advanced for the delay was that he had been awaiting a response from the appellant's Board of Directors. 2.5 In opposing the application, the appellant's case was that the respondent was summarily dismissed and communicated to via a letter dated 11 th January, 2019. The outcome of his administrative appeal was made available to him on 20 th February, 2019. The appellant contended that there was no proof of the respondent's alleged appeal to the Board of Directors in their records. Further, an appeal to the Board of Directors is outside the confines of its Grievance and Disciplinary Code. 3.0 Decision of the Court below 3.1 The learned Judge exercised his mind on the evidence and the arguments which were presented before him. The court identified the issue as being whether the respondent had provided sufficient reasons for the delay to seek redress in court after the incident complained of. Ultimately the lower court found as follows: J4 «Jt is not in dispute herein that an appeal to the Chairman of the Respondent1s Board of Directors albeit outside the ambit of the Grievance and Disciplinary Code is an Administrative Channel or process therefore sufficient reason for delay on the part of the Applicant to lodge his notice of complaint within the statutory requisite periods.'' 4.0 Grounds of Appeal 4.1 Disconsolate with the decision of the lower court, the appellant launched an appeal anchored on four grounds set out as follows: « 1. The learned Judge erred in law and fact when he held that an appeal to the Chairman of the respondent's board of Directors albeit outside the ambit of the Grievance and Disciplinary Code is an administrative channel or process therefore sufficient reason for the delay on the part of the applicant to lodge his notice of complaint within the statutory period. 2. That the Honourable Judge did not exercise his discretion judiciously in accepting that there was sufficient reasons for the delay to seek redress in court and that the delay was inordinate in this matter. 3. That the finding by the Honourable Judge was not supported by evidence." J5 5.0 Appellant's arguments 5.1 In the heads of arguments that were filed in support of the appeal, the appellant began by restating the position of the law that findings of fact made by a trial court can only be reversed by an appellate court if satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts. The cases of Masauso Zulu vs Avondale Housing Project Limited1 and Attorney General vs Marcus Kampumbe Achiume2 were cited as authority. 5.2 Learned Counsel went on to fervently submit that the court below relied on two letters authored by the respondent dated 21 st February, 2019 and 26 th February, 2020 respectively. Counsel asserted that the challenge with these two letters is that firstly, the appellant does not have a record of the said letters. Secondly, the respondent could not demonstrate that there was an acknowledgment of receipt on the part of the appellant. To reinforce the argument, we were referred to the cases of Jonathan Sombhani Nayee vs Dobbin Mubanga Lufungulo3 and Chimanga Changa Ltd vs Stephen Chipango Ngombe4 • 5.3 The appellant's Counsel further argued that courts have a duty to ensure that the law providing for delayed filing of complaints is not abused by litigants purporting to write letters of appeal in order to qualify for leave. It was avowed J6 that in this case, the delay was not only unreasonable but was also inordinate and inexcusable. 5.6 It was averred that the onus to prove that the letters of appeal were delivered to the appellant lay on the respondent. Thus the discretion to grant leave to file out of time was not exercised judiciously. 5. 7 We were urged to allow the appeal with costs. 6.0 Respondent's Arguments 6.1 The record of appeal showed no written heads of argument filed by the respondent. 7.0 Hearing of the Appeal 7 .1 At the hearing of the appeal, the appellant relied on the written heads of argument that had been filed in support of the appeal. Mr. Hamwela made brief oral submissions which were a rehash of what is contained in the heads of argument. We shall therefore not reproduce the same. 8.0 Decision of the court 8.1 We have reflected on the respective arguments before us. Although the appellant has fronted 4 grounds of appeal, we take the view that these are entwined and at the heart of the matter is the attack on the Judge's exercise of his judicial J7 discretion when he granted leave to the respondent to file his complaint out of time. 8.2 In a nutshell, it is being contended by the appellant that there was insufficient material led before the court to grant leave to file the complaint out of time. Further, the length of the delay has also been called into question. According to the appellant, the delay was inordinate as the respondent only filed his application for leave to court on 30 th June, 2021 when his appeal, within the appellant's structures, had been determined and communicated to him on 20 th February, 2019. 8.3 We are alive to the prov1s1ons of section 85(3) of the Industrial and Labour Relations Act as amended by Act No. 8 of 2008 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- J8 (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 section 85(3) of the Industrial and Labour Relations Act that a complainant ought to lodge his complaint within 90 days of exhausting administrative channels or of the occurrence of the event which gave rise to the complaint. There is a proviso that if a complainant has not done so within the stipulated timeframe of 90 days , he/she may apply to the court for extension of time. 8.5 This is what happened in this case in that, the complainant's appeal was exhausted on 20 th February, 2019 . Having lodged the application outside the statutory period, he needed to furnish the court with sufficient reasons for the delay. In the case of Nkhuwa vs Lusaka Tyre Services Limited5 , which is quite explicit on this point, it was held that: "i. The granting of an extension of the time within which to appeal is entirely in the discretion of the Court, but such discretion will not be exercised without good cause; and· ' ii. In addition to the circumstances of the delay and the reasons therefore which provide the material on which the Court May, exercise its discretion another most important factor is the length of the delay itself." 8.6 Further, in the case of Bernard Mwewa and Others vs Sable Transport Limited6 it was stated that: J9 ({Our position, however, is that the decision in Katyamba remains relevant in relation to the holding that the Applicant still had to satisfy the court that during the 90- day period allowed within which to lodge a Complaint or application, the Applicant had been engaged in pursuing administrative channels for redress available within the organisation. This is the guidance which we must apply to the case at hand ... thus the 1s t Applicant has to show that between 22nd December 2013 up to 21 st March 2014, he was pursuing definite administrative interventions ... we conclude therefore that the Applicants were not pursuing administrative remedies during the period of 90 days since each respective Applicant's date of termination. Quite clearly they indolently sat on their rights. When they came to Court on 8th of May 2015, they had long fallen out of time. The delay in coming to Court is [certainly] inordinate and inexcusable. We find no merit in the application and we dismiss it." 8. 7 The reason advanced in this instance is that the respondent had appealed to the Board of Directors. As the court below noted, the application to the Chairman of the Board of Directors was outside its Grievance and Disciplinary Code. That notwithstanding, it went on to hold that this case merited the court's favourable discretion in allowing the application. 8.8 We have interrogated this position and stand guided by the cases which articulate the principles on what constitutes JlO administrative channels and when time starts to run. Time starts to run once one has exhausted the administrative channels. In the case of Kalenga Chansa vs Evelyn Hone 7 we held as follows: «The principle which has been articulated in a plethora of cases is that the fact that one is engaged in ex cuna negotiations does not stop time from running." 8. 9 We further held that: «The trial Judge addressed the issue of what constitutes administrative channels in the Elvis Katyamba case ... That being the case it only behoves us to state that the respondent has its own administrative channels to which the Appellant has recourse. He cannot seek to pursue other administrative channels outside of the Respondent, it being a body corporate. Proceeding to the Secretary to the Cabinet is quite a stretch. '' 8.10 In this instance, the time started to run from the 20 th of February 2020 after he had exhausted the appellant's grievance and disciplinary code. That was the administrative avenue that was available to him for redress. Choosing to pursue his claims outside of the internal or domestic grievance procedure was unfortunately an exercise in futility. 8.11 In addition, the respondent could not sit back by not lodging a complaint in court in the guise of pursuing other administrative channels. The case of Edward Chilufya and .. Jl 1 94 Others vs Konkola Copper Mines Plc8 Is insightful where it was stated that: ((Any appellant, whether represented or not, has a duty to be vigilant. Law like equity, favours the vigilant. Section 19(3) of the Industrial and Labour Relations (Amendment) Act has to be construed within the maxim vigilantibus et non dormintibus Jura subveniunt (the law helps the vigilant, not those who slumber) (See paragraph 1437, Halsbury's Laws of England volume 44(1) 4 th edition P867)". 8. 13 Another illuminating case IS that of Gerald Chilumba vs ZESCO Limited9 where the Supreme Court opined that: requires ((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 door. The granting of leave to file delayed exercised complaints judiciously, there have to be sufficient reasons for the delay to seek redress from the Court after the incident complained of The appellant has presented a lazy effort and has no plausible reasons for the delay of almost 6 months." that discretion is 8. 14 Furthermore, the length of the delay is also an issue. In the aforecited case of Gerald Chilumba (supra) wherein he had delayed for 6 months, it was declared inordinate. 8.15 It has been alleged that he wrote these letters on 21 st February 2019 and 26 th February 2020. Three (3) years down the line , the respondent woke up and applied for leave to file a complaint out of time. Clearly, this delay is inordinate and .. J12 cannot be entertained on the strength of the guidance given in the aforecited case of Gerald Chilumba (supra). 9.0 Conclusion 9.1 In light of the foregoing, we are in agreement with the arguments advanced by the appellant that the exercise of judicial discretion was improper and find merit in all the 4 grounds of appeal advanced and uphold them accordingly. 9.2 All in all, this appeal has succeeded on account of the fact that there was inordinate delay in moving the court for leave to file the complaint and further there was insufficient reason advanced by the respondent to the court for the delay. 9.3 We are compelled to set aside the grant of leave by the lower court on the strength of the case of Wilson Masauso Zulu vs Avondale Housing Project Limited1 • 10.0 Costs 10.1 Each of the parties shall bear their respective costs. --====-------- ~ M. M. Kondolo, SC COURT OF APPEAL JUDGE ----------· --------- ~ COURT OF APPEAL JUDGE (2Q /I .......... ~ ................... . A. M. Banda-Bobo COURT OF APPEAL JUDGE