J1

Selected Judgment No. 59 of 2018

(P.2209)
IN THE SUPREME COU T OF ZAMBIA APPEAL N0.62/2016
HOLDEN AT LUSAKA. £ REPUBLIC OF ZAMBIA
(Civil Jurisdiction) •

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SUPREME COURT

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ZAMBIA NATIONAL C M ME~ ~-~ Af'H APPELLANT
P. 0 . BOX 50067, LUSAKA
AND
......

MASAUTSO E. NYATHANDO & 88 OTHERS RESPONDENT

Coram: Hamaundu, Kaoma and Kajimanga, JJS

On 4th December, 2018 and 11th December, 2018

For the appellant : Mr B. Gondwe, Messrs Buta Gondwe &

Associates and Mr M. Sakala, Messrs Corpus
Globe Legal Practitioners

For the Respondents: Mr M. Lisimba, Mr S. Mambwe and Mr A.

Siwila, Messrs Mambwe Siwila & Lisimba,
Advocates

JUDGMENT

HAMAUNDU, JS, delivered the judgment of the Court.

Cases referred to:

I. Kasote v The People ( 1977) ZR, reprint, 101
2. Yakub Falir Mulla & Ors v Mohamed Jabi, SCZ Judgment No. I of
2018
 J2

(P.2210)

The appellant appeals against the decision by the Industrial

Relations Court to allow the respondents to file their complaint out

of time. The background to this matter in our view dates back to

about 1994 / 1995. The respondents herein, and many others who

are not part of this matter, were employees of the appellant from

way before the period 1994 / 1995. Through several cases of this

nature that have come before us, we now possess the knowledge of

the following facts: That, at that time, the appellant was under the

ZIMCO group of companies and firms, whose ultimate shareholder

was the Government of the Republic of Zambia. In the early 1990's,

the Government decided to dismantle the ZIMCO group of

companies and privatize the individual companies thereunder. It

became obvious that, in that exercise, a number of employees

would lose their employment. Consequently the Government, as

shareholder, came up with a directive in 1994 that, in calculating

terminal benefits of such employees, the allowances that they had

been receiving should be merged with the basic salary. That

directive was communicated by the Minister of Finance to the

 J3

(P.2211)

Chairman of the ZIMCO group of companies in a letter of the 28th

March, 1995. The directive was passed on to the companies under

the ZIMCO group. It is common cause now that the ZIMCO group of

companies ceased to exist in March, 1995, leaving the companies

under it to operate as individual units. The respondents, and

indeed many others, continued in employment with the appellant,

even after the group was dismantled. It is not in dispute that 1n

December, 1996, the appellant introduced its own conditions of

service. By those conditions, retirement packages were to be

computed on the basic salary only. From 1998 onwards the

appellant started removing some of its employees from the

permanent and pensionable establishment, and placing them on

fixed term renewable contracts. The respondents herein were

among such employees. The exercise entailed retiring the employees

and paying them terminal benefits for the service they had rendered

thus far; and then putting them on fresh fixed term contracts of

service. The retirement benefits were paid on the appellant's own

conditions of service which it had set up in December 1996; that is,

they were computed using the basic salary only.

 J4

(P.2212)

Two employees of the appellant who are not part of the group

herein, named Saeli Ricky Kalaluka and Michelo Special Georges

Mv.riinga, took the appellant to the Industrial Relations Court on a

complaint, mainly, that their retirement benefits upon their move to

fLXed contract service were not calculated according to the directive

that was given when the appellant was still under the ZIMCO group

of companies. The Industrial Relations court held that the appellant

ought to have incorporated allowances into the basic salary when

computing the terminal benefits. That judgment was not appealed

against.

Apparently encouraged by the outcome 1n the Saeli Ricky

Kalaluka case, another group of employees led by Geoffrey

Muyamwa filed, in the Industrial Relations Court, summons to file

their complaint out of time. The Registrar who first heard that

application rejected it on the ground that the complaint was statute

barred by the provisions of section 85(3) of the Industrial and

Labour Relations Act, Chapter 269 of the Laws of Zambia. The full

court on appeal, however, held the view that the Registrar had

overlooked the fact that the complainants were coming to court

 J5

(P.2213)

under section 85(6) of the Act, on the ground that they were

similarly circumstanced with those, particularly, in the Saeli Ricky

Kalaluka case. The appellant then appealed in that case to this

court. Here we upheld the Industrial Relations court's decision. In

so doing, we held that section 85(6) was a stand-alone section and,

therefore, any complaint brought under it was not subject to the

limitation placed by section 85(3).

Upon that decision of ours the complaint in the Muyamwa

matter was heard substantively by the Industrial Relations Court.

That court held that the conditions of service applicable to the

Muyamwa group were those of the appellant introduced in

December, 1996 and not the ZIMCO conditions of service. The

court, however, held that the Muyamwa group should be paid

under the ZIMCO conditions of service because there was evidence

that an employee named Kalaluka, and another named Mary Moyo,

had been paid under the ZIMCO conditions of service; and that, in

2011, the appellant had modified its conditions of services, and was

now paying in line with the ZIMCO conditions of service.

 J6

(P.2214)

The appellant appealed to this court again in that case. In our

judgment delivered on 27th February, 2015, we upheld the

judgment of the Industrial Relations Court. It is that judgment

which spurred the current group of employees to also seek redress

from the Industrial Relations Court. To that end, the respondents

filed a summons to file their complaint out of time under section 85

(6) of the Industrial and Labour Relations Act, on the ground that

they were similarly circumstanced with other employees in the Saeli

Ricky Kalaluka and the Geoffrey Muyamwa cases. That application

was vigorously opposed by the appellant, who also raised a

preliminary issue requesting counsel for the respondents to recuse

themselves from the matter on the ground that they had all, at one

time or another, been in-house counsel for the appellant.

In the application to file the complaint out of time, several

arguments were put forward regarding the effect of the Limitation

Act, 1939 and the limitation placed by section 85(3) of the

Industrial and Labour Relations Act. Arguments were also advanced

on the question whether or not, in our judgment allowing the

Muyamwa group to file their complaint, we had ousted the

 J7

(P.2215)

prov1s1ons of the Limitation Act, 1939. In the end, the Industrial

Relations Court held that the effect of our decision in the Muyamwa

case, and others on the same subject, was that both section 85(3) of

the Industrial and Labour Relations Act and the Limitation Act,

1939, did not apply to a complaint that was brought under section

85(6) of the Industrial and Labour Relations Act.

We must state here that we do not understand why the parties

and the court below brought into play the Limitation Act, 1939,

because section 32 of that Act says that it does not apply to an

action where the limitation period is prescribed by another statute.

So, in this case, the only limitation that the parties and the court

ought to have been considering is that which is placed by section

85(3) of the Industrial and Labour Relations Act.

The appellant appealed to this court against that decision.

In the application for the respondent's advocates to recuse

themselves from the matter, the appellant's grievance was that the

advocate who was appearing for the respondents then, Mr Amos

Siwila, together with his partners in the firm, Mr Silas Mambwe and

Mr Mutakela Lisimba, had at one time or other been employees of

 J8

(P.2216)

the appellant as in-house counsel. The argument for the appellant

was that there was a signifi.can t risk and likelihood that confidential

information relating to the appellant, which all three counsel may

have become aware of in their capacity as the appellant's in-house

counsel, could be used to the disadvantage of the appellant.

The respondents opposed that application, arguing; that in

this case the complaint was merely premised on the fact that the

respondents were similarly circumstanced with those of the

Kalaluka and Muyamwa cases, which cases were matters of public

knowledge; that the claim has nothing to do with the operations of

the appellant, and; that, in any case, the period of separation

between the appellant and the bank was at least 10 years and

above, so that whatever knowledge they may have had of the inner

operations of the bank had become obsolete with the passage of

time.

The court below held that, given the length of time that had

passed since the separation, it was difficult to see how the

advocates could take undue advantage of their former client. The

court also found that the complaint had nothing to do with the
 J9

(P.2217)

appellant's operations. That the documents intended to be used

where not confidential, and, therefore, no prejudice would befall the

appellant by allowing the documents to be relied on; and allowing

the advocates to continue acting for the respondents. On the Legal

Practitioners Rules, the court held that the remedy for an aggrieved

client against his former lawyer, who acts in breach of the rules, lies

in the client invoking the disciplinary process under the rules. On

those grounds, the court below allowed the respondent's advocates

to continue representing the respondents. The appellant appealed

to this court against that decision.

In the meantime, the Muyamwa case had gone back to the

Industrial Relations Court for assessment. The appellant, being

dissatisfied with the outcome of the assessment proceedings by that

court, appealed to this court. In a judgment rendered on 18th

August, 2017, we decided to reverse our decision of 27lh February,

2015. In arriving at that decision, we had reviewed some of our

decisions in which we had considered the effect that the Minister's

directive to the Chairman of the ZIMCO group of companies still

had on former subsidiaries thereof that have since set up their own
 J 10

(P.2218)

conditions of service. We came to the conclusion that, in those

other cases, we had held that the directive did not apply to those

employees who had migrated to new conditions of service. For that

reason we held that, in so far as our judgment of 27th February,

2015 upheld the Industrial Relations Court's judgment that the

computation of terminal benefits be inclusive of allowances in

accordance with the ZIMCO directive, it was a misdirection.

Consequently we reversed that aspect of our judgment.

Obviously, our subsequent reversal of that portion of the

judgment of the 27th February, 2015, has materially changed the

complexion of this appeal; and rendered the arguments that the

parties had prepared redundant. It cannot be disputed that the only

reason why the respondents wish to file a complaint based on the

ground that they are similarly circumstanced with the employees in

the Kalaluka and Muyamwa cases is because they would like their

terminal benefits to be re-computed using a salary that is

incorporated with allowances. As at 2015, before the judgment of

27th February, 2015 was reversed, that position was tenable; and

we would not hesitate to say that, as at that time, the court below
 J 11

(P.2219)

was on firm ground in allowing the respondents to file their

complaint. We say so notwithstanding that the appellant had raised

other points of objection, such as that some of the respondents had

sought to join the Muyamwa case but their bid had been rejected by

the court, because such issues should have been properly raised

and determined at the substantive hearing where it would have

been possible to adduce sufficient evidence showing which of the

respondents could not benefit from the judgment in the Muyamwa

case.

Now, as at 18th August, 2017, when we reversed the crucial

portion of the Muyamwa case, the position of the respondents has

become completely untenable. As a result, at the hearing, we asked

the advocates to address us on the effect of our judgment of the 18th

August, 201 7, with regard to their respective positions in this

appeal. Mr Sakala, on behalf of the appellant, conceded that the

judgment had completely changed the complexion of this appeal.

Consequently, his only argument was that, in view of that

judgment, the respondents could not proceed with the complaint.

Mr Lisimba, for the respondents, on the other had, did not seem to
 J 12

(P.2220)

want to come to terms with the turn of events. He argued; first, that

since the court be low had allowed the responden ts to file their

complaint and that, since, at that time, the decision was correct,

the respondents should be allowed to proceed with their complaint

in the Industrial Relations Court and take their chances as regards

our latest judgment on the Muyamwa case. Secondly, in what was

obviously an afterthought, he argued that the respondents were

also arguing that our latest decision was wrong.

We shall deal with Mr Lisimba's second argument first. We

have held in the case of Kasote v The Peopte< 11 and the latest case

of Yakub Mulla & Ors v Mohamed Jabi121 that, as the final court of

appeal, once we have made a decision on a point of law, we will

rarely depart from it, even when it is wrong, unless it can be shown

that there has been manifest injustice. So a party that seeks to

persuade us to reverse our decision must satisfy the above two

conditions. In this case the latest judgment in the Muyamwa case

shows that Mr Lisimba and Mr Mambwe participated in those

proceedings as counsel for the Muyamwa group. So, they must have

become aware as at 2017 that the case on which they sought to rely
 J 13

(P.2221)

in this matter had been reversed and was now adversely affecting

the position of their clients in this case. If they felt that the latest

decision in the Muyamwa case was wrong, they had all the time to

re-cast their approach to this appeal in order for their heads of

argument to reflect the fact that they were challenging the

correctness of the latest decision. They did not. We, therefore

dismiss that argument.

Coming to the argument that the respondents would like to be

heard in the Industrial Relations Court and take their chances,

first, we wish to say that no lower court, properly guided, would go

against the latest judgment in the Muyamwa case and grant the

respondents herein what they seek. It follows that, even if they want

to be heard in the Industrial Relations Court, the fate of this

complaint has already been sealed: it is doomed to fail. Secondly,

we believe that counsel's duty to their client is not merely to argue

cases; counsel must advise their clients as to the strength of their

claims. Where a client's case is doomed, it is counsel's duty, in the

best interest of their client, to advise them to cut their losses; at

least by not incurring further costs to the advocates themselves and

• J 14

(P.2222)

to the opponents. In the circumstances, we find Mr Lisimba's

argument very puzzling, indeed. We dismiss that argument.

The net result is that this appeal will succeed; not on the

points as originally argued in the appeal, but because of the

subsequent reversal of the decision in the Muyamwa case on which

the respondents relied for their complaint. We, accordingly, set

aside the lower court's order allowing the respondents to file their

complaint.

With regard to costs, Mr Lisimba argued that, even if the

appellant were to succeed in this appeal, the costs should be

awarded to the respondents because the appellant's appeal initially

had no merit. Mr Sakala, on the other hand, argued that no ground

had been shown for the court to depart from the rule that costs

abide the outcome.

We must say that, in the peculiar circumstances of this case,

Mr Lisimba's argument is very persuasive. However, as we have

pointed out, Mr Lisimba was aware of the latest judgment in the

Muyamwa case when it was delivered last year. He was aware that

the judgment had rendered the case of the respondents herein

•
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(P.2223)

untenable. It was his duty to concede defeat to the other party and

make overtures to find a way of curtailing the appeal, probably by

some consent order. However, he did not. Instead he came to court,

prepared to argue the appeal on the strength of the position which

this court held in the judgment of 27th February, 2015. Therefore, it

was very much the respondent's fault that the appeal was not

curtailed much earlier. In the circumstances, the appellant should

have costs of the appeal.

With regard to the appeal concerning the recusal of the

respondent's advocates from this matter, our view is that in the

light of the way this matter has been resolved there will be no need

for the respondents' advocates t<? recuse themselves. We, therefore,

find it unnecessary to give our opinion on the issues raised as it will

be obiter.
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E. M. Plamaundu
SUPREME COURT JUDGE

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R. M. C. Kaoma C. Kajimanga
SUPREME COURT JUDGE SUPREME COURT JUDGE