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Zesco Limited v Mpongo & Others (Appeal 179 of 2013)  ZMSC 2 (12 January 2018);
Civil procedure – Common questions of fact and law in two or more cases – Effect of determination in test case on the other caseuntil after the determination of any other of them.”
The Respondents retired from employment from the Appellant between July 2011 and December 2011 but there was a dispute concerning the payment of their retirement benefits. This arose from the fact that on 18 March 2011, the 2003 conditions of service for non-represented employees were revised and approved by the Appellant’s Board of Directors with effect from 16 March 2011. Despite the Respondents being retired after 16 March 2011, the Appellant paid their retirement benefits based on the 2003 conditions of service for non-represented employees. The Appellant claimed that the 2011 conditions of service were not wholly approved by the board of directors and what was approved were extracts of the conditions of service which were signed and circulated for implementation. The Appellant claimed that the clause on retirement benefits was one of the clauses which had not yet been approved for implementation at the time the Respondents were retired. The High Court upheld the Respondents’ claims that their benefits should have been paid in accordance with the 2011 revised conditions of service for non-represented employees. The Appellant appealed.
When the appeal came up on 7 June 2016, proceedings were stayed until after the determination of the appeal involving ZESCO Limited v Ivor Yambayamba and Others (Appeal No 224 of 2013) which was heard earlier. It was contemplated that the result of that appeal, would as a test case, in effect determine this appeal because both appeals had common questions of facts and law set out above.
In ZESCO Limited v Ivor Yambayamba and Others it was held contrary to the Appellant’s claims, that the 2011 revised conditions of service for non-represented employees were wholly approved by the Appellant’s Board of Directors on 18 March 2011 with effect from 16 March
2011. As such, the 2011 revised conditions of service applied to the respondents. Since that was a test case, the present appeal is similarly dismissed for lack of merit.
In staying the appeal, the Supreme Court relied on Newton Malwa & 2 Others v Lucky Mulusa & 3 Others (SCZ Judgment No 24 of 2014) in which it was held that:
“1. Where two or more proceedings are pending before the same court and it appears to the court that some common question of law or fact arises in both or all of them, or the rights to relief claimed arises from the same transaction or a series of transactions, the court may order any of them to be stayed, until after determination of any other of them;
2. The result of the action which proceeds will, as a test action, determine the stayed proceedings. Stay is the appropriate remedy when the several actions are not so similar that consolidation would be appropriate, yet are so closely related that it would be unfair for the defendant to pay unnecessary legal costs.”
The Supreme Court also relied on Order 4 rule 9(1) of the Rules of Supreme Court, 1999 Edition which provides that:
“9. Consolidation, etc., of causes or matters
(1) Where two or more causes or matters are pending in the same Division and it appears to the Court -
(a) that some common question of law or fact arises in both or all of them, or
(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this paragraph
the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed