The Appellants applied for leave to file a notice of motion pursuant to section 85 (6) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia (the “Act”).a Through the notice of motion, the Appellants sought to move the Court for an order that they were entitled to benefit from the judgment of the IRC on appeal to the Supreme Court in the case of Paddy Kaunda and Others v Zambia Railways Limited COMP/79/1992. In that case, the Supreme Court upheld the findings of fact by the IRC, that the appellants therein, who had been served with retrenchment letters on 29 September 1992, had remained in employment until 25 November 1992 because of the 90 days’ notice period and were, therefore entitled to benefit from salary increments effected during that period. The application by the Appellants to benefit from the case of Paddy Kaunda was first made to the Deputy Registrar in February 2006 through summons for leave to file a notice of motion under section 85 (6) of the Act. It was granted. The Respondent appealed to a single judge in chambers who allowed the appeal and overturned the ruling by the Deputy Registrar. The Appellants then escalated the matter to the full bench of the IRC. The full bench granted the application for leave to file the notice of motion. The Appellants then filed an originating notice of motion on 10 December 2009.
A single judge of the IRC heard the motion and dismissed it. The Appellants then challenged the decision of the single judge through appeal to the full bench. The full bench came to the conclusion that the appeal did not have merit. The reasons the Court gave for dismissing the appeal were that, firstly, while the Appellants relied on the case of Paddy Kaunda, the Supreme Court judgment in that case did not award the reliefs that the Appellants were seeking in this case. Secondly, the Court below noticed that 83 of the litigants in the case before it were also parties to the case of Inambwae Likando and Others v Zambia Railways Appeal No 169 of 2003 and found that since this case was decided by the Supreme Court, the appellants could not re-litigate the matter in the Court below. Thirdly, the Court below was of the view that although the doctrine of res judicata may not apply to section 85 (6) of the Act, a party cannot after losing a case, go back to court and seek to rely on that section to benefit from a decision in another case. The Appellants appealed advancing two grounds.
Held
1. In the circumstances of this case, the Appellants cannot invoke section 85 (6) of the Act to benefit from the decision in the case of Paddy Phillimon Kaunda. That section cannot be relied upon by a party who has prosecuted his/her claim independently and lost. The section is not intended to provide a mechanism where parties can undertake separate litigation and later choose which judgment to benefit from. In this case, both the Court below and the single judge found that the Appellants were parties to either the case of Inambwae Likando or the case of Muwowo. It is not in dispute that the facts leading to the litigation in the Inambwae Likando case and the Muwowo case were the same as those that gave rise to the case of Paddy Phillimon Kaunda. All the three cases involved litigation by former employees of the Respondent who were separated from the Respondent in similar circumstances. They pursued their claims under the said different cases and the cases were determined by the Court.
2. Appeal dismissed.
