Nasilele Namushi and 17 Ors v Council of the University of Zambia (2024/HP/0624) [2024] ZMHC 195 (14 October 2024)

Rl IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN : NASILELE NAMUSHI AND 1 7 OTHERS PLAINTIFFS AND COUNCIL OF THE UNIVERSITY OF ZAMBIA DEFENDANT BEFORE HON MRS S. KAUNDA NEWA IN CHAMBERS THIS 14t h DAY OF OCTOBER,2024 For the Plaintiffs For the Defendant Mr C. Sokoni, Messrs OMM Banda and Company Ms Towela Nkhoma, in House Counsel RU LI NG CASES REFERRED TO: 1. R. B Policies at Lloyds v Butler 1949 2 ALL ER 226 2 . Letang v Cooper 1964 2 ALL ER 929 3. William David Carlisle Wise v E. F Harvey Limited 1985 ZR 179 4. Zambia National Building Society v Ernest Mukwamataba Nayunda 1993 SJ 33 5. Dominic Mulaisho v Attorney General 2012 Vol 3 ZR 551 6. Daniel Mwale v Njolomole Mtonga and others Selected Judgment No 25 of 2015 7. Maningi Safaris Limited v Attorney General Appeal No 85 of 2018 8. Kashikoto Conservancy Limited v Darrel Alexander Watt CAZ Appeal No 146 of 2019 9. Mutwena v Attorney General CCZ 38 of 2021 10. Bisalomo Mumba v Michael Nsangu & others CAZ Appeal No 31 of LEGISLATION REFERRED TO: 1 . The Rules of the Supreme Court of England, 1965, 1999 Edition 2. The Limitation Act, 1939 3 . The National Pension Scheme Authority Act Chapter 256 of the Laws of Zambia R2 OTHER WORKS REFERRED TO: 1. Atkins Court Forms, Volume 29 2 : Halsbury's Laws of England, 4 th Edition Re-Issue Volume 12 3. Halsbury's Laws of England, 4th Edition, Reissue, Vol 28, --.. I 1. INTRODUCTION 1.1 By an application which was filed on 11 th July, 2024, the Defendant, being the Council of the University of Zambia, filed a Notice of Motion pursuant to Order 14A as read with Order 33 Rule 7 of the Rules of the Supreme Court of England, 1965, 1999 Edition. The Notice of Motion was supported by an affidavit and a List of Authorities and Skeleton Arguments. 1.2 The questions raised for determination are: 1. Whether or not Nasilele Namushi and the others have a cause of action; 2 . Whether or not the action is statute barred; 3. That the action be dismissed if it is statute barred and there is no cause of action; 4. Costs of the application be borne by Nasilele Namushi and the others. 1.3 In opposing the Notice of Motion, an affidavit in opposition and a List of Authorities and Skeleton Arguments in opposition were filed on 8 th August, 2024 . 2. BACKGROUND 2.1 Nasilele Namushi and the others, who are former employees of the University of Zambia under various contracts of employment, commenced this action against the Council of the University of Zambia on 8 th May, 2024, by Writ of --.. I R3 Summons which was accompanied by a statement of claim and the other requisite documents, seeking: i. Damages for breach of statutory duty owed to Nasilele Namushi and the others by the Council of the University of Zambia by its' failure to make contributions pursuant to Section 14 of the National Pension Scheme Act No 256 of the Laws of Zambia; ii. Payment of accrued leave days; iii. Damages for distress and inconvenience as pleaded; iv. Interest; v. Costs; vi. Any other relief that the Court may deem.fit. 2.2 The Council of the University of Zambia, enter ed appearance and filed its' defence and the other documents on 30th May, 2024. Thereafter, it filed the application, which is subject of this Ruling was filed. 3. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR THE COUNCIL FOR THE UNIVERSITY OF ZAMBIA 3.1 In making the application, Counsel stated that they relied on the affidavit, which was filed in support of the Notice of Motion, together with the List of Authorities and Skeleton Arguments in support. It was submitted that the last contracts for Nasilele Namushi and the others had been exhibited, and going by that record, the action is statute barred. R4 3.2 Also submitted, was that this action seeks to usurp the --• National Pension Scheme Authority's power to prosecute erring and would be erring employers. On that premise, the prayer was that the action be dismissed with costs to the Council of the University of Zambia. RESPONSE BY COUNSEL FOR NASILELE NAMUSHI AND THE OTHERS 3.3 It was Counsel's submission in response, that he relied on the affidavit in opposition and the List of Authorities and Skeleton Arguments in opposition, which were filed on 8 th August, 2024. He stated that as deposed to in the affidavit in opposition, Nasilele Namushi and the others noticed that the Council of the University of Zambia was not remitting statutory contributions when the National Pension Scheme Authori.ty Amendment Act No 1 of 2023 came in to force, which enabled them as beneficiaries of the pension scheme, to partially withdraw their pensions. 3.4 It was Counsel's contention that, that is when the cause of action arose, and therefore, the case was not fit to be dismissed on a preliminary point of law. It was his submission, as a result, that the Notice of Motion should be dismissed so that triable issues could go to trial. REPLY BY COUNSEL FOR THE COUNCIL FOR THE UNIVERSITY OF ZAMBIA 3 .5 The submission in reply, was that the action is founded on simple contracts of employment, and as such the action should have been brought within Six (6) years of the cause RS of action arising. Counsel noted that some of the contacts of employment for Nasilele Namushi and the others dated as far back as 2009. It was therefore reiterated that the reliefs sought in the Notice of Motion be granted. 4. DECISION OF THIS COURT 4.1 I have considered the Notice of Motion. It was raised pursuant to Order 14A as read with Order 33 Rule 7 of the Rules of the Supreme Court of England, 1965, 1999 Edition. 4.2 Order 14A provides that: "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 where it appears to the Court that - (a)such question is suitable for determination without afull 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) Upon such determination the Court may dismiss the cause or matter or make such Order or Judgment as it thinks Just." 4.3 Order 33 Rule 7 on the other hand states 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 R6 substantially disposes of 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 such Judgment therein as may be just." AFFIDAVIT IN SUPPORT 4 .4 In the affidavit, which was filed in support of the application, Theresa Chipulu Chalwe, the Registrar of the University of Zambia, deposed that Nasilele Namushi and the others were employed by the University of Zambia on diverse dates on short term contracts for Six (6) months . It was stated that the contracts were not renewed, and therefore Nasilele Namushi and the others separated from the University of Zambia between 2010 and 2015. The last contracts of engagement were exhibited as 'TCC l '. 4 .5 The averment was that this action was commenced on 8 th May, 2024, seeking among other reliefs, payment of leave days and breach of contract by failing to make statutory contributions to the National Pension Scheme Authority. LIST OF AUTHORITIES AND SKELETON ARGUMENTS IN SUPPORT 4.6 In the List of Authorities and Skeleton Arguments in support, the law in Order 14A of the Rules of the Supreme Court of England was cited. THE ACTION IS STATUTE BARRED 4 . 7 Reference was made to Section 2 of the Limitation Act, 1939, and it was argued that pursuant to that Section, an R7 action founded on simple contract has to be instituted within a period of Six (6) years from the cause of action arising. 4.8 Reliance was placed on the case of Maningi Safaris Limited v Attorney General f7J stating that it was held in that matter, that time starts to run when a cau se of action arises . The cases of Dominic Mulaisho v Attorney General f5J and Daniel Mwale v Njolomole Mtonga and others f6J were stated as also having reiterated this position. 4.9 Further cited as authority, was the case of R. B Policies at Lloyds v Butler f1J where it was noted as follows as regards the Limitation Act, 1939: "One of the principles of the Act is that those who go to sleep on their claims should not be assisted by the Courts in recovering their property. But another equally important principle is that there shall be an end of these matters, and that there shall be protection against stale demands." 4.10 Therefore, Nasilele Namushi and the others having neglected to sue within the statutory period of Six (6) years, s lept on their rights. WHETHER NASILELE NAMUSHI AND THE OTHERS HAVE A CAUSE OF ACTION? 4 .11 On this limb of the Notice of Motion, the argument was that this action could only stand if a cause of action was revealed. The case of Letang v Cooper f2J was relied on, as having stated the following in relation to the existence of a cause of action: R8 "A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." 4.12 It was argued that Nasilele Namushi and the others had anchored their claim for damages for breach of statutory duty on Section 14 of the National Pension Scheme Authority Act Chapter 256 of the Laws of Zambia. The argument was that from that claim, the questions that arose, were whether Nasilele Namushi and the others, can seek damages arising out of a purported breach of statutory duty, when the National Pension Scheme Authority Act provides for remedies payable to the Authority for non-remittance of contributions by employers; and whether the claim for damages usurps the powers of the National Pension Scheme Authority. 4 .13 It was argued that under Sections 15 and 51 of the National Pension Scheme Authority Act, a contributing employer is obliged to make monthly contributions, and that a penalty of twenty percent of the amount payable, shall be paid if payment is not made, which is recoverable as a debt that is owing to the National Pension Scheme Authority. 4.14 Further, a person who evades making contribution, contravenes the Act and is liable upon conviction to pay the contributions that are due, together with interest thereon or a penalty, which is recoverable in the same manner as a fine. It was also stated that under Section 16 of the National Pension Scheme Authority Act, the Director General is R9 empowered where they are satisfied that an employee's contribution has been deducted from their earnings, but the employer has failed to pay that contribution together with the employers' contribution to the Authority, to treat the unpaid contributions as wholly or partially paid for purposes of any claim to the payment or benefits. However, this shall be without prejudice to any action to recover the amount du e from the employer. 4 .15 The case of Mutwena v Attorney General (9J was relied on, as where the Constitutional Court stated that a cause of action encompasses facts or a combination of facts that a person must establish, in Order to demonstrate that they have not only the right to sue, but also that the Court has the requisite jurisdiction to hear and grant the reliefs sought. 4.16 The argument was that Nasilele Namushi and the others have no cause of action as the facts of this case do not entitle them to a remedy for damages. AFFIDAVIT IN OPPOSITION 4.17 In the affidavit in opposition, Elijah Kabwe, the 5 th Plaintiff in deposing, stated that indeed Nasilele Namushi and the others were employed on various contracts of employment, with exhibit 'EKl', being exhibited as one of the contracts. He also stated that he had been advised by his advocates, that Order 14A of the Rules of the Supreme Court of England, had been wrongly invoked in this application, as the issues sought to be determined would not dispose of the matter with finality. RlO 4.18 It was also his averment, that the cause of action arose when Nasilele Namushi and the others became aware that the University of Zambia was not remittin g their contribu tions to the National Pension Scheme Authority. LIST OF AUTHORITIES AND SKELETON ARGUMENTS IN OPPOSITION 4 . 19 The argument by N asilele N amushi an.d the others was that the Court of Appeal in the case of Bisalomo Mumba v Michael Nsangu & others fl OJ stated that by its' very nature, an application under Order 14A of the Rules of the Supreme Court of England, 1965, 1999 Edition seeks to determin.e the cause or dispose of it, on a point of law, without a full trial. 4.20 The argument was further that, in the case of Kashikoto Conservancy Limited v Darrel Alexander Watt f8J, the Court of Appeal noted that the trial Court opined that the issues in contention in that matter, required trial, to enable a logical resolution. Therefore, the case was not suitable for dismissal on a preliminary point of law. 4.21 Reliance was placed on Order 15 Rules 1 and 2 of the Rules of the Supreme Court of England, 1965, 1999 Edition as defining a cause of action, as well as the holding in the case of Wi lliam David Carlisle Wise v E. F Harvey Limited f3J. 4.22 Based on the above, the argument was that a cause of action is revealed, where there is a factual situation to which liability of another can be attached. It was stated that Rll Sections 14 and 15 of the National Pension Scheme Authority Act make it mandatory for employers to make ... contributions for employees' pension, and that breach of that obligation amounts to breach of statutory duty. 4.23 Reiteration was made that Nasilele Namushi and the others only discovered that the University of Zambia did not make the statutory contributions to the National Pension Scheme Authority when the National Pension (Amendment Act) No 1 of 2023 came into force, which enabled beneficiaries under the pension scheme, to access and partially withdraw their pension contributions. 4.24 Therefore, the argument was that the action is not statute barred. DECISION 4.25 The facts that are common cause in this matter, are that Nasilele Namushi and the others were employed by the University of Zambia under various contracts of employment which are exhibited as 'TCC 1' to the affidavit, which was filed in support of the Notice of Motion. 4 .26 Those contracts were for a duration of Six (6) months from 1st March, 2008, for Likwanya Kahilu, Three (3) months from 3rd April, 2009, for Getrude Michela, Six (6) months from 3rd April, 2009 for Sinyanga Ngulube, Six (6) months from 22nd October 2009, for Osward Nkaka and Joseph Mungomba Chingebe, Six (6) months from 13th April, 2010 for Safila Phiri, and Six (6) months from 26th October, 2011 for Joshua Kvvanja. R12 4.27 Others are, Six (6) months 20th November, 2012, for Barbara Shanabe, Six (6) months from 12th September, 2013, for Elijah Kabwe, Six (6) months from 15th September, 20 14 for Chiza Mtonga, Three (3) months from 2 nd February, 2015, for Getrude Phiri, and Fifteen (15) days from 18th August, 2015 for Barbara Banda. 4.28 In terms of the effect of taking out an application under Order 14A of the Rules of the Supreme Court of England, 1965, 1999 Edition, Atkins Court Forms, Volume 29 at pages 252-253 states as follows: "The object of the Order is that finality should be achieved at an interlocutory stage. It is therefore fundamental to the question of whether or not an application under Order 14A is appropriate, that the determination of the question of law or matter of construction placed before the Court should terminate the whole action or some claim or issue contained in the action. The finality of any Order is of course, subject to appeal." 4.29 Questions of limitation of an action and want of a cause of action, may if successfully argued, determine a matter with finality under Order 14A of the Rules of the Supreme Court of England. 4 .30 For actions founded on simple contract and tort, Section 2 of the Limitation Act 1939 provides that: R13 "1. The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say: (a) actions founded on simple contract or tort .... " 4.31 Save that Section 3 (a) of the Law Reform (Limitations of Actions) Act, Chapter 72 of the Laws of Zambia modified the application of the Limitation Act for certain actions. Thus, by virtue of that provision, actions for damages for personal injuries should be brought within Three (3) years from the date on which they accrue. 4.32 As regards the existence of a cause of action, the explanatory notes in Order 15/1/2 of the Rules of the Rules of the Supreme Court of England state that: "The words "cause of action" comprise every fact (though not every piece of evidence) which it would be necessary for the Plaintiff to prove, if traversed, to support his right to the Judgment of the Court. "If the Plaintiff alleges the facts which, if not traversed, would prima facie entitle him to recover, then he makes out a cause of action". 4.33 The holding in the case of William David Carlisle Wise v E. F. Hervey Limited (3J was: "A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right or entitlement to a Judgment in his favour against the other." R14 ... I 4 .34 As to when a cause of action arises in contract, Halsbury's Laws of England, Vol 28, 4th Edition, Reissue, at page 446, in paragraph 864 states as follows : "In an action for breach of simple contract, the cause of action is the relevant breach an.d not the time of damage as breach of contract is actionable per se. Accordingly, such an action must be brought within six years of a breach; after expiration of that period, the action will be barred, although damage may have accrued to the plaintiff within six years of the action brought ... " CLAIM FOR THE PAYMENT OF LEAVE PAY 4.35 Going by the above, th e claim for unpaid leave days being a claim arising ou t of the contracts of employment, should have been made when the contracts of employment for Nasilele Namushi and th e others came to end. 4.36 From the contracts that have been ex11ibited as 'TCC 1' to the affidavit which was filed in support of the Notice of Motion, the earliest being 2009 and the latest being 20 15, it is b eyond a r gument, that Six (6) years from date of expiration of those contracts expired a long time ago. 4.37 The claim for payment of leave days is therefore statute barred, and it is struck off the claims that are before Court. RlS CLAIM FOR PAYMENT OF DAMAGES FOR BREACH OF STATUTORY DUTY AND FOR DAMAGES FOR DISTRESS AND INCONVENIENCE 4.38 These claims are founded in contract, the claim being that there was breach of statutory duty by the failure to remit the contributions to the National Pension Scheme Authority. 4.39 Paragraph 686 of Halsbury's Laws of England 4 t h Edition Re-Issue, Volume 28 at page 309 provides the following in respect of breach of statutory duty: "The right of action for breach of statutory duty is distinct from a right of action in negligence, although it is a common law right. The period of limitation laid down for actions founded in tort applies to an action for breach of statutory duty." 4.40 Consequently, an action for breach of statutory duty being a common law right, and in this matter, the claim being based on breach of a contract of employment, the claim should have been brought within Six (6) years. 4.41 The provisions of Halsbury's Laws of England, Vol 28, 4th Edition, Reissue, at page 446, in paragraph 864 have been seen, as providing that the relevant period of the right of action is the breach, and not when a person discovers the breach. Thus, on t hat basis, if there is a cause of action for breach of statutory duty, it should have been brought within Six (6) years of the contracts of employment coming to an end. R16 WHETHER NASILELE NAMUSHI AND THE OTHERS HAVE - • A CAUSE OF ACTION IN THIS MATTER? 4 .42 As to whether the claim for damages for breach of statutory duty and inconvenience can be sustained in this matter , the Council of the Univer sity of Zambia argued that a remedy is p rovided for under Sections 14, 15 and 16 of the National Pension Scheme Authority Act, which state that: "14. (1) A contributing employer shall pay to the Scheme a contribution in respect of an employee in his employment consisting of the employer's contribution and the employee's contribution at the prescribed percentage. (2) A contributing employer shall be entitled to recover from his employee who is a member of the Scheme, the amount of the employer's contribution by deduction from his earnings to which the contribution relates ..... 15. (1) A contributing employer shall pay contributions to the Authority at the _end of each month and such employer shall submit, with such payment, all prescribed supporting particulars concerning his identity, period of employment and earnings of the member to whom the contributions relate. (2) If any contribution is not paid within the time stated under subsection (1) a sum equal to twenty per centum of the amount unpaid shall be added ...,. as a penalty for each month or part thereof after R17 the date the payment is due and the amount of the penalty shall be recoverable as a debt owing to the Scheme by the employer. 16. Where the Director-General is satisfied that an employee's contribution has been deducted from his earnings, but the employer has failed to pay this contribution together with the employer's contributions to the Authority, he may treat the unpaid contributions as wholly or partially paid for the purpose of any claim to the payment or benefits, provided that this shall be without prejudice to any action to recover the amount due from the employer." 4.43 Therefore, claiming dam ages fo r breach of statu tory duty would be to usurp the powers of the National Pension Scheme Authority. 4.44 The response was that Nasilele Namushi and the others are entitled to claim damages for breach of statutory duty, and therefore a cause of action is revealed. 4.45 Black's Law Dictionary, by Bryan A. Garner 9 th Edition, West Publishing Co, 2009 defines damages at page 445 as: "Money claimed by, or ordered to be paid to a person as compensation for loss or injury." 4.46 Further Halsbury's Laws of England, 4 th Edition Re-Issue Volume 12 in paragraph 1102 at page 412 stat es that: . . R18 "Damage may be defined as a disadvantage which is suffered by a person as a result of the act or default of another. Injuria is damage which gives rise to a legal right to recompense; if the law gives no remedy there is damnum absque injuria or damage without the right to recompense. The meaning of damage in a statute is a matter of construction. Damages are the pecuniary recompense given by a process of law to a person for the actionable wrong which is done to him." 4.47 From this, it can be seen that in some cases, even though a person claims to have suffered loss , damages are not recoverable. 4.48 In the case of Zambia National Building Society v Ernest Mukwamataba Nayunda f4J the Supreme Court held that: "The essence of damages has always been that the injured party should be put, as far as monetary compensation can go, in about the same position he would have been had he not been injured. He should not be in a prejudiced position nor be unjustly enriched." 4.49 In this matter, it has been seen that under Sections 14 to 16 of the National Pension Scheme Act, a remedy is provided for failure to pay the statutory contributions to the National Pension Scheme Authority for employees by defaulting employers. R19 4.50 As such, there being a remedy that is provided by statute for the breach, damages would not be recoverable in a claim for failure to pay statutory contributions, as the same is remedied by the National Pension Scheme Authority instituting actions against erring employers, and recovering the amounts payable to the employees, which puts the employee in a position that they would have been had the breach not occurred. 5. CONCLUSION 5.1 Having so found, there is no cause of action, and the claims by Nasilele Namushi and others, for damages for breach of statutory duty and for inconvenience therefore fail. That being the position, the questions raised in the Notice of Motion succeed, and the action is set aside. The claims having been founded in employment relationships, I Order that each party shall bear their own costs of the proceedings. Leave to appeal is granted. DATED AT LUSAKA THE 14th DAY OF OCTOBER, 2024