Mushibwe and Ors v Mopani Copper Mines PLC (Appeal 124 of 2012) [2015] ZMSC 169 (4 March 2015)

k IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA . (Civil Jurisdiction) APPEAL NO. 124/2012 SCZ/8/073/2012 BETWEEN: WEBBY MUSHIBWE AND 9 OTHERS Appellants AND MOPANI COPPER MINES PLC Respondent Coram: Chibesakunda, Ag CJ, Lisimba and Lengalenga, Ag JJS On 9th September, 2013 and 4th March, 2015 For the Appellants: In person For the Respondent: Mr. C. Tafeni - The Legal Counsel Mopani Copper Mines Plc. JUDGMENT LENGALENGA, Ag JS, delivered the Judgment of the Court. - Cases referred to: 1. ZAMBIA REVENUE AUTHORITY v T & G TRANSPORT (2007) ZR 13 2. ZAMBIA CONSOLIDATED COPPER MINES LIMITED v JACKSON MUNYIKA SIAME & OTHERS (2004) ZR 193 3. ATTORNEY GENERAL v ACHIUME (1983) ZR 1 (SC) 4. BUCHMAN v ATTORNEY GENERAL (1993 - 1994) ZR 131 (SC) u JI Legislation referred to: 1. Industrial and Labour Relations Act (1) as amended by Act No. 8 of 2008, Cap 269 of the Laws of Zambia 2. Limitation Act, 1939 3. British Acts Extension Act, Cap 10 of the Laws of Zambia 4. Law Reform (Limitation of Actions) Act, Cap 72 of the Laws of Zambia When this appeal was heard, we sat with the Honourable Lady Justice Chibesakunda who has since retired. This judgment therefore, is by the majority. This is an appeal against the judgment by the Industrial Relations Court at Ndola, dated 6th February, 2012. By that judgment, the trial court found that the case had failed on the ground that the complainants did not lodge their complaint within the limitation period and further did not obtain an order to extend time or leave to file the complaint out of time. The court further held that the entire proceedings were accordingly dismissed with each party to bear their own costs. The brief facts of the case are that the ten appellants filed their Notice of Complaint in the Industrial Relations Court at Ndola on the main ground that the respondent had unfairly and unjustly delayed to confirm J2 their appointments made between 2005 and 2007 in which they had been acting as Shift Bosses. The complainants were seeking the following reliefs: 1. An order directing the Respondent to confirm the Complainants in the offices they had been acting in for more than three years; 2. Payment of the differences in salaries and other emoluments from the date when they should have been appointed (confirmed); 3. Damages for the inconvenience caused; 4. Costs, interest and any other relief the Court may deem fit. The Respondent opposed the complaint and filed an Answer to that effect. After the case was heard, the learned advocate for the respondent, at the end of his submissions, resurrected the issue of regularity of the A proceedings and the jurisdiction of the Industrial Relations Court to entertain the Complaint. He argued that the complaint was commenced outside the termination period provided under Section 83(3) of the Industrial and Labour Relations Act (1) as amended by Act No. 8 of 2008. The trial court pointed out that the complaint was on record that on 30th September, 2011. They dealt with the issue of irregularity raised by J3 learned Counsel for the respondent and ruled that the respondent had sat on their right to raise the preliminary objection before the matter was set down for trial. They stated that that was particularly due to the fact that the respondent had taken a further step to file its Answer and Affidavit in Support to the said Complaint. Counsel for the respondent argued that Complaints that are brought outside the statutory period stipulated under Section 85(3) of the Industrial and Labour Relations Act were in fact outside the jurisdiction of the lower court and could, therefore, not be heard. He further contended that this jurisdiction could not be conferred by the consent or waiver of the parties. He also drew an analogy with the requirement to obtain leave to appeal before proceeding with an appeal in the Supreme Court. Mr. Tafeni submitted that that too, was an area in which jurisdiction could not be conferred by agreement or waiver of the parties in the event that it was subsequently discovered that one of the parties did in fact obtain leave to appeal. Counsel relied on our decision in the case of ZAMBIA REVENUE AUTHORITY v T & G TRANSPORT1 in which we stated at page 16 that: "What is even more to the point, in our view, is the English case of White v Brunton(l)., a persuasive authority which states that, 'the requirement to obtain leave to appeal goes J4 to the jurisdiction of the Court of Appeal. Therefore, since the jurisdiction cannot be conferred by the express consent of all parties - a fortiori, it cannot be conferred in consequence of an applied waiver by one party7. In view of the ongoing reasons, the appeal is, therefore, misconceived and we decline to entertain it." Counsel for the respondent reiterated that the matter before court ought not to have been entertained by the court below in the first place because it had no jurisdiction to hear the matter. He further contended that this jurisdiction could not have been granted by the respondent's waiver or acquiescence in filing an Answer. He submitted that the jurisdiction may only have been granted by law which allowed the appellants to file a Complaint out of time and that no such application was made. He concluded by submitting that the exercise of the lower court's jurisdiction was ultra vires ab initio and that the Complaint be dismissed with costs. After considering the submission by learned Counsel for the respondent, the court referred to the case of ZAMBIA CONSOLIDATED COPPER MINES LIMITED v JACKSON MUNYIKA SIAME & OTHERS2 where this Court interpreted the amended Section 85(3)(1) of the Industrial and Labour Relations Act. The view of the court below was that a litigant who had delayed in filing a complaint within the stipulated 30 J5 days of the occurrence of the event giving rise to the complaint could still obtain leave to file the complaint out of time. The Industrial and Labour Relations Act (1) was further amended in 2008 by Act No. 8 and this amendment did not provide a time limit for making an application for leave to file the complaint out of time. The court below however, admitted that clearly in their dealing with the respondent's preliminary objection, they did not consider the need for the appellants to obtain leave before proceeding in an action which was evidently out of time. That, rather, they allowed the complaint on the basis that the respondent had waived its right to object and plead the limitation period by filing an Answer and affidavit. The trial court accepted the submission by Counsel for the respondent that the complaint fell outside the statutory period within which complaints and applications under the Industrial and Labour Relations Act should be brought before the court. Further that in such a case an application to extend the time within which to lodge the complaint and application, should have been made as determined in the case of ZAMBIA CONSOLIDATED COPPER MINES LIMITED v JACKSON MUNYIKA SIAME & OTHERS. J6 The court below also noted from the foregoing case, that for a complaint or an application, which was out of time, to be lodged, an order for extension of time or leave to file the complaint out of time is a condition precedent to the action being entertained by the court in accordance with Section 85(3) of the Industrial and Labour Relations Act. When the court below ruled against the respondents' preliminary issue, it was oblivious to the foregoing considerations. The trial court further considered the principle of acknowledgment of debts which in itself was taken to revive the cause of action as at the date of the acknowledgment. This principle was brought about by Section 23(4) of the English Limitation Act, which is applicable in this country by virtue of Section 2 of the British Acts Extension Act of the Laws of Zambia and by implication, Section 3 of the Law Reform (Limitation of Actions) Act. By filing the Answer and the Affidavit in Support, the respondent had in effect acknowledged the existence of the appellants' claims. The court below was of the considered view that the limitation period under section 85(3) of the Industrial Relations Act was specific to actions under that Act and that as such the provisions of the Limitation Act could J7 not be imported into the Act. Further that if it was the legislature's intention that causes of action should be revived by acknowledgment or even part payment as contemplated under the Limitation Act, it could have made specific provisions to that effect. The court below decided that the case at hand must fail on the ground that the appellants' complaint failed on the ground that they did not lodge their complaint within the limitation period and further did not obtain an order to extend time or leave to file the complaint out of time. The entire proceedings were declared a nullity and accordingly dismissed. Being dissatisfied with the decision of the court below, the appellants have appealed against the whole judgment on the following grounds: GROUND ONE That the court below erred in law and fact when it ruled that they were out of time. GROUND TWO The complainants are not ex-employees, but that they are still in employment with Mopani, even at the time of bringing this Complaint to court, the complainants were and are still in employment, even this time of their appeal to the Supreme Court, they are all in employment. GROUND THREE J8 The court below erred in law and fact to consider them as being out of time when they are still in employment and their complaint is a current action which they are still complaining about, there was no such thing as out of time as ruled by the court below. GROUND FOUR The other evidence shall be adduced in court during the hearing of this appeal. Whereas the appellants submitted that they would rely on the grounds of Appeal outlined in the Memorandum of Appeal, the respondent relied on the submissions from the court below in which Counsel began by reiterating what the complaint was about. It was submitted that the appellants claimed that they were appointed to act in the capacity of Shift Boss between the years 2005 - 2007 but they were never confirmed to those positions. The appellants' action to the Industrial Relations Court was to seek an order for the respondents to confirm them to the positions of Shift Bosses and to be paid the difference in emoluments from the date when they should have been appointed. J9 Counsel for the respondent submitted that in deciding this appeal it was necessary for the Court to address three pertinent questions namely: 1. Did the Complainants act in the position of Shift Boss? Webby Mushibwe testified on behalf of the appellants stated that he was appointed as a Section Boss in 2006 while acting as a Shift Boss. In 2007, he attended a three months course to enable him to act as Shift • Boss and that afterwards he was awarded a certificate. This fact was confirmed by Mr. George Mayeya who testified on behalf of the respondent. He stated however, that the three months training course was intended to prepare the appellants to fill the vacancies whenever they arose. He testified that out of the appellants, Mr. Mushibwe, Mr. Mulenga and Mr. Nkaka were identified to be suitable and were at one point appointed to act as Shift Bosses until 2009. In addition to George Mayeya's evidence Grace Mbuzi who swore an affidavit in support of the respondents' answer stated that out of the ten appellants, only four of them (a) Levy Kapembwa (b) Webby Mushibwe J10 (c) Alfonsio Kalalale (d) Chalikosa Brighton were appointed to act as Shift Bosses in an acting capacity. She deposed that the rest of the appellants did not at any time act as Shift Bosses but that they were attached to that position as part of their training in the event that a vacancy arose, so that they could be considered. Therefore it was not disputed that some of the appellants did act as Shift Bosses. The respondent relied on the documents at pages 2 to 9 to support this assertion merely indicated appointment. The document on page 10 was the one that showed that a person was acting and in fact drawing an acting allowance. RW2, clarified that the government log books have to be filled in by anyone appointed to statutory positions as regulated by the Mines Regulations. The positions included those of Shift Bosses regardless of whether a person was appointed to such position for training purposes or merely for practical training. They submitted that only the four named appellants did act as Shift Bosses. 2. Were the Respondents paid acting allowance? Jll Counsel for the respondent submitted that it was not disputed that acting allowance was paid and this was supported by Webby Mushibwe's evidence when he acknowledged that he was paid acting allowance for acting as Shift Boss. Furthermore, the exhibits "GM1, GM2 and GM3" attached to the affidavit in support of the respondent's Answer show that acting allowance was paid. 3. Are the Respondents legally entitled to be confirmed? It was the respondents' contention that there was no rule or employment contractual provision that compels the respondent to promote the appellants. They said there was no statute, common law precedent or other rule of law that compels the respondent to promote the appellants merely based on the fact that they acted in a particular position for over six months as alleged by the appellants that they ought to have been confirmed in their acting positions. Firstly within three months as per "company policy," and secondly within six months in accordance with "regulations." The company policy or regulations that were produced before court in evidence comprised of two memoranda, one from Roan Consolidated Copper Mines Limited dated 18th March, 1980 and the other J12 from Zambia Consolidated Copper Mines Limited (ZCCM) dated 10th March, 1993. Counsel submitted that the former prescribes acting periods in excess of three months while the latter prohibits acting appointments in excess of three months. The respondent however produced an extract of a guide to conditions of services for its employees published in September 2006 which applied to the appellants at the material time and is shown at pages 26 - 28 of the respondent's bundle of documents. Clause 6.14.4 prescribes a minimum period for which a person can act in order to be entitled to acting allowance but does not set a maximum acting period. This implies that one may act for periods in excess of three to six months. This argument is supported by RW's testimony that for purposes of claiming acting allowance, a person should have held an acting position for a period of • seven days and that for one to be eligible for promotion, that person should have been acting for a minimum period of three months. Therefore, the evidence of the absence of a maximum acting period, is consistent with the documents on the conditions of service. Counsel for the respondent challenged the appellants' assertion that the two memoranda were still in force as being correct since the ZCCM'S J13 Nkana and Mufulira divisions were privatised and purchased by the respondent company which currently operates as a separate entity. He submitted that the two separate entities created independent labour policies and that therefore the two memoranda are no longer operational in the respondent Company. It is Counsel's contention that therefore there was clearly no condition in the appellants' contracts of employment compelling the respondent to confirm the appellants on the basis that they had been acting for over three months. The respondent's decision to promote anyone was at its discretion and they prayed that the appellants' claim be dismissed with costs. He further submitted that although it had been the respondent's intention to promote some of the appellants after the global economic recession, a number of the appellants were declared redundant. The three who remained in the respondent's employ were WEBBY MUSHIBWE, MICHAEL MULENGA and NKAKA JOSEPH. Further that when the three named appellants were about to be promoted according to RWl's testimony, the respondent received a letter J14 from Mines Safety Department reminding them that appointments to the position of Shift Boss, both, in substantive and acting capacity required a minimum academic qualification of a Grade 12 certificate. Since none of the three appellants had those qualifications, the respondent wrote to the Director of Mines Safety requesting that they be exempted from the academic qualification. However, before these exemptions were granted, NKAKA JOSEPH was discharged on medical grounds on 23rd June, 2010 and the exemption letter was only granted on 28th July, 2010. It was the respondent's submission that WEBBY MUSHIBWE was promoted and confirmed in the position of Shift Boss, whilst MICHAEL MULENGA, the only other appellant still in employment at the time, was not ready to be elevated to that position. He added that confirming the appellants to the position of Shift Boss • would therefore have been illegal and constituted a breach of mining regulations. He submitted that the complaint was therefore without merit. Counsel for the Respondent submitted that prior to the trial of this matter, he had raised a preliminary issue relating to the complaint being out of time. The court had in its Ruling declined the application on the J15 basis that the application had been made after the respondent had filed an Answer and was therefore too late as they had acquiesced to proceedings. It was the respondent's humble view that the court below ought not to have been seized with the matter in the first place as the matters complained of occurred in or about 2007. The appellants commenced the matter in 2010 when it was clear that the requirement for commencement of complaints under Section 83 (3) of the Industrial and Labour Relations Act was within the statutory period of three months. This section further deals with the jurisdiction of the court. He argued that this jurisdiction cannot be conferred by the consent of the parties or by the waiver of the parties. He further contended that the parties cannot agree to bring a commercial dispute for resolution in the Industrial Relations Court because such a matter is outside its jurisdiction. Mr. Tafeni relied on • the case of ZAMBIA REVENUE AUTHORITY v T AND G TRANSPORT wherein this Court stated: "The requirement to obtain leave to appeal goes to the jurisdiction of the court of appeal. Therefore, since the jurisdiction cannot be conferred by the express consent of all parties a fortiori, it cannot be conferred in consequence of an applied waiver by one party. In view of the following reasons, the application is therefore misconceived and we decline to entertain it." J16 Counsel drew an analogy with the requirement to obtain leave to appeal before proceeding with an appeal in the Supreme Court which is a jurisdictional issue that cannot be conferred by the agreement or waiver of the parties in the event that it is subsequently discovered that one of the parties did not in fact obtain leave to appeal. The respondent submitted that the case cited is applicable to this case. He argued that the court 0 below had no jurisdiction to hear the matter and this jurisdiction could not have been granted by the respondent's waiver or acquiescence in filing an Answer. He further pointed out that no application to file complaint out of time was made and as such the matter was ultra vires ab initio. Counsel for the respondent prayed that the appeal be dismissed with costs. We have considered the appeal, arguments and submissions. It is important to point out at this stage that this matter was heard but not decided on merit. In ground one the appellants contend that the court below erred in law and fact when it ruled that they were out of time. The respondent relied on the provisions of Section 85(3) of the Industrial and Labour Relations Act which provides: J17 "The Court shall not consider a complaint or application unless it is presented to it within thirty days of the occurrence of the event which gave rise to complaint or application: Provided that, upon application by the complainant or applicant, the Court may extend the thirty day period of three months after the date on which the complainant or applicant has exhausted the administrative channels available to that person." Evidence on record states that the matters complained of by the appellants occurred in or about 2007 but the action was only commenced in 2010. The Notice of Complaint at page 6 of the record of appeal in paragraph 4(a) states: "The Complainants herein were appointed to act in offices of shift boss between 2005 and 2007 but to date they have never been confirmed to the said offices...." Contrary section 85(3) of the Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia, the appellants herein exceeded the thirty • days period stipulated therein by filing their complaint out of time on 16th February, 2010 without leave. It is not disputed that the complaint was filed out of time. The section further provides for the application for leave to file complaint out of time. We accept that without leave being granted the Industrial Relations Court had no jurisdiction to hear the matter. We, ( J J18 therefore, find that the court below was on firm ground when it made the following observation at page 09 of its judgment: "We have also considered whether having heard the parties on the merits of the case it is not in the interest of justice that the Complaint be determined as such. We do not think so. Proceeding in the manner suggested would be tantamount to rendering the limitation period in Section 85(3) redundant which power we do not have." The court below had further observed that apart from not lodging the complaint within the limitation period, the appellants had not obtained an order to extend time or leave to file complaint out of time. It accordingly found the entire proceedings to be a nullity and dismissed the complaint. This was a finding of fact and in the case of ATTORNEY-GENERAL v MARCUS ACHIUME3 we held that: "the appeal court will not reverse findings of fact made by a trial judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant • evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make." We find the above observations to be applicable to this case and we decline to interfere with the findings of fact made by the court below. Further, the court below did not err in law and fact in ruling as it did. J19 Ground one, therefore fails. Based on the aforestated, the appeal is dismissed with costs for lacking merit. Retired L. P. Chibesakunda ACTING CHIEF JUSTICE M. Lisimba ACTING SUPREME COURT JUDGE F. M. Lengalenga ACTING SUPREME COURT JUDGE