NB Mbazima and Ors Joint Liquidators of ZIMCO Ltd (In LIquidation) v Vera (SCZ 6 of 2001) [2001] ZMSC 91 (23 February 2001)

31 SCZ NO. 6 OF 2001 APPEAL NO. 30/2000 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: N B MBAZIMA AND OTHERS JOINT LIQUIDATORS OF ZIMCO LIMITED (IN LIQUIDATION) AND APPELLANT REUBEN VERA RESPONDENT Coram: Sakala, Ag. DCJ, Chaila and Chibesakunda, JJS on 21st September 2000 and 23rd February 2001 For the Appellants: Mr R Mainza of Messrs. Makala and Company, Lusaka For the Respondent: Mr C Muneku of Messrs Charles & Charles Associates, Lusaka JUDGMENT Chibesakunda JS, delivered the judgment of the Court Act referred to: The Industrial and Labour Relations Act, Section 85 (2), Cap 269 of the Laws of Zambia. < Case referred to: Kawana Mwangela v Ronald Bwale Nsokoshi & Ndola City Council SCZ Judgment No. 29 of2000. This is an appeal against a decision of the Industrial Relations Court (IRC) in a complaint by Rueben Vera (now the deceased represented by his administrator now the respondent) against N B Mbazima and Others as joint liquidators of Zambia Industrial Mining Corporation Limited (ZIMCO) (now the appellants, before us). Before the IRC, the Attorney General, who has not appealed to this court was the second respondent. - J2 - The respondent had complained before the IRC seeking the following:- 1. 2. 3. A declaration that as a sitting tenant/occupant of the flat in issue, he is entitled to the first option to purchase it; A declaration that the 2nd Respondent urges the 1st respondent to sell the property in issue to him; and Damages for psychological and mental torture occasioned on him by the said conduct of the liquidators. The IRC held in favour of the respondent and ruled that because of the discrimination, the sale of Flat 2 of Sub-division 32 of Farm 28a to Miss Charity Kowa was null and void. The appellants are challenging that decision. The story before the IRC was that the complainant, now the respondent, was employed by the National Hotels Development Corporation (NHDC), a former subsidiary of Zambia Industrial Mining Corporation Limited (ZIMCO) in 1983. In 1993 he was transferred to one of ZIMCO’s department known as International Catering Services (ICS) as the Chief Accountant. At the time ICS was being dissolved, the respondent occupied Flat No. 2, Subdivision 32 of Farm No. 28a which he occupied by virtue of his employment status. In that same year, 1993, ZIMCO issued a circular dated 30 of June 1993 stating that ICS was one of the units transferred to ZIMCO as a subsidiary company. It was also his evidence that when ICS was transferred to ZIMCO he continued to enjoy the same conditions of service which other ZIMCO employees enjoyed. In his view, therefore, as a ZIMCO employee, he was entitled to be offered the flat in question to - J3 - purchase as part of his conditions of service. However, the flat in question was offered to Miss Charity Kowa, another employee of ZIMCO, who purchased it. The evidence for the appellants was that even at the time the flat was given to the deceased, the actual tenant of the flat was not the deceased but the National Hotels Development Corporation. And National Hotels Development Corporation was perpetually in rental arrears and as such did not qualify to purchase the flat in question. The appellants also testified that the flat in question was rightly offered to Charity Kowa as an employee of ZIMCO, therefore the Industrial Relations Court misdirected itself. The learned counsel for the appellant before the Industrial Relations Court challenged that court’s jurisdiction referring to Section 85(2) and Section 108(2) of the Industrial and Labour Relations Act, Cap 269. The Industrial Relations Court rejected this challenge and held that this was a matter related to employment and as such they had jurisdiction to deal with it. The learned counsel have advanced a number of arguments before us. We will not deal with these arguments as we hold the view that the important point, which was raised at the IRC, which the IRC glossed over is one of the jurisdiction of the IRC. We are aware that Mr Mainza did not advance this argument before us. Be that as it may be, we will deal with it. Section 85(2) of the Industrial and Labour Relations Act provides that:- “The court shall have jurisdiction- (c) Generally to inquire into and adjudicate upon any matter affecting the collective rights, obligations and privileges of - J4 - employees, employers and representative organizations or any matter relating to industrial relations.” Section 108 of the Industrial and Labour Relations Act also provides that:- “Any employee who has reasonable cause to believe that the employee’s services have been terminated or that the employee has suffered any other penalty or disadvantage or any prospective employee who has reasonable course 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;” Quite clearly Sections 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 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 Sections 85(2) and 108 of the Industrial and Labour Relations Act, Cap 269. In our view, in those proceedings before the Industrial Relations Court and even the present proceedings before us, the Respondents were and are impugning the certificate of title issued to Miss Charity Kowa under the Industrial and Labour Relations Act. The IRC has no jurisdiction in conveyancing matters. Such issues can only be dealt with by the High Court. In Kawana Mwangela v Ronald Bwale Nsokoshi and Nodla City Council (1) we considered the jurisdiction of the Lands Tribunal. In that case, we made the same point and held that:- “In our considered opinion a reading of Sections 15 and 22 of the Lands Act shows quite clearly that the jurisdiction of the Lands Tribunal is limited to the settlement of “land disputes” under the act and is not an alternative forum to the High Court where parties can go to even for the issuance of prerogative writs such as mandamus. In these proceedings the appellant was seeking to impugn a Certificate of Title issued to the 1st respondent and - J5 - under the Lands and Deeds Registry Act, Cap 185 of the Laws only the High Court has jurisdiction to entertain such proceedings.’”’ The law allows only the High Court to entertain issues relating to impugning of certificate of land. The Industrial Relations Court has no such jurisdiction. We wish also to state that in any matter where there is uncertainty as to whether the issues to be decided are of a conveyancing nature or labour disputes, it is advisable that parties should proceed before the High Court which court would deal with all these issues at the same time. The IRC, therefore, racked jurisdiction in their matter. The appeal is therefore successful. The order made by the Industrial Relations Court is set aside. The Respondent’s administrator, if he so wishes, may start fresh proceedings before the High Court. The cost of this appeal to follow the event, in default of agreement to be taxed. E L Sakala AG. DEPUTY CHIEF JUSLTICE M S Chaila SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE