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SELECTED JUDGMENT NO.36 OF 2016

P.1318

APPEAL NO.27/2014
IN THE SUPREME COURT OF ZAMBIA
, SCZ/8/301/2013
'"
".
HOLDEN AT NDOLA

(CIVIL JURISDICTION)
-, -1f- ~. • 't' J
'1,"
, ••.
"r' BETWEEN:

CHARLES MAMBWE AND OTHERS

APPELLANTS
AND

MULUNGUSHIINVESTMENTS LIMITED
(In Liquidation) 1ST RESPONDENT

MPELEMBE PROPERTIES LIMITED

2ND RESPONDENT
Coram
Malila, Musonda and Mutuna, JJS
th
On 6 September 2016 and 9th September 2016
For the Appellants In Person
For the Respondents
Mr. S.A.G. Twumasi of Messrs Kitwe
Chambers

JUDGMENT

Mutuna, JS delivered the Judgment of the court.

Cases Referred to:

1) Ndongo vs Moses Mulyango and Roostico Banda (2011) ZR Volume 1 page

187
2) Withem Roman Buchman vs A. G. SCZ No.14 oJ 1994
3) Roland Leon Norton vs Nicholas Lostonn (2010) ZR Volume 1, 358
4) Bank oJZambia vs Richard Nyambe and Others (2006) ZR page 132
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P.1319
Other authorities referred to:

1. HighCourt Rules, Chapter 27 of the Laws of Zambia

Works referred to:

1, Black's Law dictionary by Bryan A. Gamer, 8th edn (2004) Thomson wei;.:'
. USA ....,',

This is an appeal against the decision of the Deputy

Registrar sitting at Ndola dismissing the Appellants'
application on assessment of the balance on terminal
benefits. The Deputy Registrar found that the Second
Respondent had paid the Appellants their terminal benefits
in full and as such their application had no merit.

The background leading up to the decision of the

Deputy Registrar is that the Appellants were employed in
various capacities in the Second Respondent, a subsidiary
of the First Respondent, When the Second Respondent
went into liquidation, the Appellants and other employees
were laid off.

At the time the Appellants were laid off they were paid
certain amounts as terminal benefits but they were
aggrieved because they claimed that there were certain
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P.1320

sums of money still owmg to them. They, therefore,

instituted proceedings against the two Respondents in the
High Court at Ndola.

In the course of the proceedings in the High Court, the, ..

,. , "'-'
matter was referred to mediation by a High Court "Judge
and a mediation settlement order was entered into by the
parties which was referred to as a consent settlement
agreement.

The gist of the mediation settlement order was that the

claim by the Appellants was to be settled in accordance
with the judgment in an earlier case by one Charles
Mwale and others against the Second Respondent, which
was under cause number 1999/ HN/166. The said Charles
Mwale and his co plaintiffs in the said cause were also
former employees of the Second Respondent.

The relevant portion of the Charles Mwale judgment is

as follows:

"In the premIses larder that for the period the Individual
Collective Agreements (ICA) was in force, the Plaintiffs
benefits be calculated in accordance with the ICA and
thereafter with the Joint Industrial Council Agreement (JICA). In
 14

P.1321

default of agreement between the parties, these are. to be

assessed by the Learned District Registrar.

Secondly, the Defendant has conceded that the 20% salary

increment was not effected in favour of the Plaintiffs. I order
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that this' be paid for the period 1st October, 1993 to the date of
.1 1

termination.

Thirdly, it appears to me that there are anomalies in the leave

days earned by and actually paid to the Plaintiffs, as
exemplified in the case of BENJAMIN CHABU.

I order that these be re-calculated and paid to the deserving

Plaintiffs. All amounts found to be due to the Plaintiffs under
the above headings shall attract interest at 50% per annum
from the date of the writ to the date of this judgment, and
thereafter at 6% per annum till final payment. For the
avoidance of doubt, I hereby declare that the Plaintiffs are not
entitled to repatriation allowance ... "

This was the basis of the mediation settlement order

upon which the parties were supposed to determine the
amounts due to the Appellants, if any. The parties
proceeded to make computations to justify their respective
positions but failed to agree on what was due to the
Appellants.
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P.1322

After.the parties failed to reach settlement, they went

back to the High Court Judge to seek intervention.
Pursuant to this, and on 24th November, 2010, the parties
elppear.erlhefore el High Court ,Judge elt Ndolelwho directed
o;;lh ". _,. . l.:J ~

. '. them'.('to file submission .to justify; their respective

•
computations following which the Judge would render her
decision on the matter. On 23rd November, 2011, the
matter was re-allocated to another Judge because the
earlier dealing Judge was transferred to Lusaka. After the
second Judge considered the matter, he found that the
matter had been settled by the mediation settlement order.
He then considered the finding in the Charles Mwale case,
which was the basis of the mediation settlement order and
held that the Plaintiffs in that case were entitled to their
benefits being calculated under two formulae, that is, the
ICAand JICA formulae, for the two years period they were
in force; and that the said formulae applied to the
Appellants. He also found that the Defendants In the
Charles Mwale case had conceded that they had not paid
the Plaintiffs 20% salary increment for the period 1st
October 1993 to date of termination. He went on to hold
that the 20% salary increment was only applicable to those
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P.1323

Appellants who had not been paid the said increment. He

accordingly ordered the Respondents to pay the Appellants
the increment unless evidence could be produced to show"
,~,ithat they ",;,erepaid. ,i' J ~"

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Lastly, the Learned High Court Judge considered the

issue of leave entitlement and held that it was to be
resolved by scrutinizing all the documents filed by the
Respondents.

After the Learned High Court Judge made the

foregoing decision, the matter was remitted to the Deputy
Registrar whose role was to determine whether or not the
Appellants were paid their benefits in full and to ascertain
how much was due, if any.

At the hearing before the Deputy Registrar, the Second

Respondent tendered affidavit evidence showing a list of
the persons it alleged had been paid, the amounts and the
basis for the payments. The Second Respondent also filed
heads of argument supporting its position. It essentially
argued that it had paid all the Appellants all their terminal
benefits III accordance with the two formulae. The
Appellants filed heads of argument in response in which
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P.1324

they reiterated that there was an under payment in their

terminal benefits. The point of departure by the parties was
the effective date of the ICAand JICA.

After considering the, application, the Learned Deput:/ '

r. . ";
Registrar quoted from the'ruling of the Learned High Court
Judge and the holding in the Charles Mwale case. He then
considered the affidavit evidence and submissions tendered
by the Second Respondent, and found that the evidence
proved that the Appellants were paid the salary increments
and leave days entitlement. It was his further finding that
the Appellants were paid all their terminal benefits in
accordance with the holding in the Charles Mwale case.
He listed the evidence that proved this and found that the
Appellants had no further claim from the Respondents.

The Appellants were unhappy with the decision of the

Learned Deputy Registrar and have lodged this appeal,
advancing four grounds as follows:

1) The Deputy Registrar erred that the evidence adduced

by the Defendants (Respondents) shows that the
Plaintiffs (Appellants) were paid all their dues in
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P.1325

2) accordance with .the holding zn the Charles Mwale

cause.
3) The Deputy Registrar erred that evidence ,adduced for
the proof of ppyment, the oral contract of service record
. ,\:",. I~;-,"

of engagemeri~, engagement advice, pay adv'ic:e and

tennination advice as per exhibits "FN1"to "FN3",
4) The Deputy Registrar erred that pay sheet exhibit "FN7"
and acknowledgement of the amounts exhibits "FN4 to
FN5 as shown that the Plaintiff (Appellants) were paid
inJull.
5) The Deputy Registrar erred by overlooking the
mediation settlement order and the High Court ruling of
19th March 2012,

Not only did this court have difficulty in discerning

what most, if not all these grounds actually meant, but the
drafting style was a departure from the rules of this court.
We however, granted them indulgence because the
Appellants are lay and were unrepresented.

The parties filed Heads of Argument which they relied

upon at the hearing of the appeal. In the case of the
Appellants, and on application by counsel for the
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P.1326

Respondents, we expunged from the record their further

arguments titled Appellants' response to the Respondents'
Supplementary Heads of Argument and list of authorities
because they.did not comply with the .rules in terms of
I~/< -/'t:'- ,

content, and.no leave was soughtto file them."

The Appellants Heads of Argument were not

arguments in the strict sense but were a summary of the
Appellants perception of the evidence tendered before the
Deputy Registrar. The arguments essentially concluded
that the Deputy Registrar erred at law in finding that the
correct formulae had been applied by the Respondents in
payment of the Appellants' terminal benefits and that all
the payments were made. Further, apart from reference to
the Charles Mwale case, the arguments made no reference
to any legal authorities.

In the Respondents' Heads of Argument filed on 24th

February 2015 it was argued that the Deputy Registrar was
on firm ground in making the findings he made in view of
the evidence presented before him. We were, in this regard,
reminded of our decision in the case of Ndongo vs Moses
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P.1327

Mulyango and Roostico Banda1 in which we' restated the

instances when we will reverse findings of fact by a trial
"iudge
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.. the Respondents' Suppletllentary Heads of
, .
Argufnent filed on 14th July 2016'; the Respondents
arguments were two fold. Firstly, it was argued that the
arguments advanced by the Appellants in their reply raised
issues that were not advanced before the Deputy Registrar.
We were, therefore, urged not to consider them in
accordance with our decisions in the cases of Wilhem
Roman Buchman vs A.G.2 and Roland Leon Norton vs
Nicholas Lostorm3.

The second limb of the Respondents' arguments was

an acknowledgment that the mediation settlement order
executed by the parties and endorsed by the mediator did
not settle all the issues. It was argued that this is what
prompted the parties to refer the matter back to court In
accordance with our decision in the case of Bank of
Zambia vs Richard Nyambe and Others4 which was
quoted as follows:
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P.1328

0' "The mediation conducted in the High Court and the

Industrial Relations Court is court annexed mediation;
meaning it is part of the judicial system". .',

"';<'" At the,hearing the first Appellant advanced arguments

'.
" on behalf of the other Appellahts. In doing so he relied
entirely on the heads of arguments filed.

We were urged to allow the appeal.

In his vwa voce arguments, counsel for the

Respondents, Mr. S.A.G. Twumasi conceded that the
mediation settlement order executed by the parties and the
mediator ought not to have been signed because it was not
practically enforceable. He also acknowledged that he and
counsel for the Appellants had a duty when they appeared
before the mediator to guide him to prepare a mediation
settlement order that was practical for enforcement
purposes and that settled all issues in dispute.

We were urged to dismiss the appeal.

We have considered the record of appeal, ruling

appealed against and the arguments by counsel. The
undisputed facts of this case that we have outlined in the
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P.1329

'earlier part of this judgmenLreveal that the judgment of the

Learned High Court Judge of 19th March, 2012 and the
ruling appealed against were as a consequence of the
mediation settlement order dated 4th October 2007. Thp.
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said order followed a refEi)Talof the matter to mediation by

a High Court Judge in accordance with the Rules on court
annexed mediation and it reveals that the matter was
settled by mediation by the parties. The agreement of the
parties, in terms of settlement of the dispute, as is reflected
by the mediation settlement order, is as follows:

1) This matter has been settled in accordance with the

judgment of the Charles Mwale and other vs Mpelembe
Properties Ltd cause number 1994/HN/ 116

2) The liquidator of the 1st and 2nd Defendants will

compile a list of those persons who are to be paid and
those who are not eligible and the said list will be verified
by the Plaintiffs. This will be done by 14th October, 2007.

3) The list mentioned in NO.2 above will include those

former employees who are not Plaintiffs in this matter but
were in employment at the time of the liquidation and
are entitled to be paid according to the judgment
mentioned in paragraph 1 above.
 113

P.1330
4) The actual payment, will be subject to the liquidator..
receivingfunds from the Government of the Republic of
5) Zambia and the Plaintiffs will be at liberty to lobby the
Gove'~mentfor the payment to be made to the Liquidators.

". ,-'
6) The partie,s will each bear their own costs" of and
." ,-
incidental to this action.

The questions that arise from the foregoing mediation

settlement order are: what is its effect as regards the
dispute between the parties?; and what is its effect on the
applications that were before the Learned High Court
Judge and Deputy Registrar from which this appeal arises?
The answers to these questions will determine the fate of
this appeal.

As a starting point it is important that we trace the

genesis of court annexed mediation in Zambia and the
objectives that it seeks to achieve. We feel compelled to do
so because the answers to the two questions we have posed
lie In the genesIs and objectives of court annexed
mediation.
 114

P.1331

Court annexed mediation is not unique to Zambia. It is

applied in most courts in this region and indeed in the
United States of America and the United' Kingdom. It is by
.
definition,"li. process by which a trial ccd;t refers the
. .; ',;' -: ~.

parties to a,'neutral third party called, a mediator, to help

them resolve their dispute. The said neutral third party
plays a facilitative role by merely providing a forum for the
parties to explore options for settling their disputes. The
process is party driven and as such, the parties structure
the agreement that they finally come up with.

Court annexed mediation is distinct from ad hoc or

private mediation, because whilst the latter is non binding,
court annexed mediation is binding. To demonstrate the
non binding effect of ad hoc or private mediation, Black's
Law Dictionary by Bryan A. Garner, defines mediation at
page 1003 as follows:

'/\ method of non-binding dispute resolution involving a

neutral third party who tries to help the disputing parties
reach a mutually agreeable solution".

It is clear from the foregoing definition that the process

is non binding in that it does not compel a party to
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P.1332

participate III the process and neither -is any agreement

reached by the parties binding and enforceable upon them.

On the other hand, the 'Rules on court annexed

mediation in Zambia, under Ordcr<:H- of the High Court
~ '
~' ~
Rules, compel a party to attend before a mediator and any
settlement reached is binding upon the parties and final.
As such, no appeal lies against such settlement and to this
end, sub rules 8, 12 and 14 of Order 31 of the High Court
Rules state as follows:

"(8)The parties shall appear in person at the mediation, If they

are represented, their advocates shall accompany them .._"

"(12) A mediation settlement inform 28D in the First schedule

to these Rules shall be signed by the parties and the mediator
and registered under Order XXXVII, rule 1, and shall have the
same force and effect for all purposes as a judgment, order or
decision and be enforced in the like manner",

"14) No appeal shall lie against a registered mediated

settlement".

(The underlining is ours for emphasis only).

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P.1333

As such binding and final order, a mediation

settlement order, signed' by a mediator and the parties':
'it";., marks the end of the proceedings. The ,,,<)rdercannot be ,,,',.'
Y subject to appeal, interpretati'on or review, nor can the "'
proceedings from which it arises be re-opened.

As regards the objective or rationale for court annexed

mediation, the same is that it helps decongest the courts,
thereby reducing the work load on judges in the High
Court. This eventually ensures that there is speedy
dispensation of justice. Furthermore, by referring the
parties to mediation, the court also seeks to ensure that
the parties have recourse to a cheaper, faster and amicable
method of resolving their disputes. It also ensures that the
parties have resort to a process in which they playa major
role in structuring their settlement in accordance with
terms and conditions they can abide by.

Having set out the genesis and objective of mediation,

we now turn to determine the questions we posed in the
earlier part of this judgment. The first was the effect of the
consent settlement order entered into by the parties on
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P.1334

their dispute. Our discussion on the effect of a mediation

settlementorderreveals that such an order is final, binding
and not subject to. appeal, interpretation, or review. The
consent settlement order, entered into by the parties in this
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matter, being such an order, is, therefore, final and bindq}g

upon the parties to this dispute. The consent settlement
order marked the close of the proceedings and cannot be
the subject of appeal, review or interpretation by any court.
This arises from the fact that a court cannot adjudicate
upon a decision it has not made by way of appeal, review or
interpretation. We therefore reject the argument by Mr.
S.A.G. Twumasi that where a mediation settlement order is
not practical for enforcement purposes it can be referred
back to the court.

Further, by referring the parties to mediation, the

court ceases to have jurisdiction over the matter if it is
settled as was the case in this matter. The court can only
assume jurisdiction where mediation fails, pursuant to
Order 31 rule 11 of the High Court Rules which states as
follows:
..
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P.1334

"(1) If the mediation fails, the mediator shall not more than ten
.,days after the close of the mediation proceedings, return the

.
reJ:ordto the mediation office or proper officer
. with a report .
in form 28C in the First Schedule to these Rules, stating that
the m/,l1liitionhas fail"ea. l' ,~l", •.
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(2) The mediation officer or proper officer shall, not more than
seven days after receipt of the report referred to in sub rule
(1), submit the record to the trial Judge who, shall not more
than fourteen days after receipt of the record from the
mediation officer or proper officer summon the parties in
terms of rule 5".

This is the only situation under which a record can be

referred back to a trial judge from mediation. A record
cannot, under any circumstances, be referred back to the
trial judge where the dispute is settled in mediation and a
settlement order filed with the court in the prescribed form.
We are, therefore, of the considered view that it was a
misdirection on the part of the Learned High Court Judge
to have adjudicated upon a dispute that had been settled
by mediation and render the ruling dated 19th March 2012.
As such, by adjudicating upon the dispute after the
consent settlement order was executed by the parties and
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P.1335

endorsed by the mediator, in an effort to' explain its effect

to and guide the parties, the Learned High Court Judge
'\vas reviewing or interpreting the"consent settlement order.
..It is,ai-soour con~idered view that by,r{-:ferringtheymatter to
the .Deputy Registrar for assessme'nt, and the latter
proceeding with the assessment, amounted to a
misdirection on the part of both the Learned High Court
Judge and Deputy Registrar for the same reasons we have
given in the preceding sentences. These acts by the
Learned High Court Judge and Deputy Registrar defeated
the objectives of mediation of decongesting the court
system, speedy resolution of the matter and cost saving on
the part of the parties. This can be discerned from the fact
that the litigation arising from the consent settlement order
has been raging in the courts from the year 2007 when the
settlement order was executed, This is a period of nine
years, which is not only an unnecessary delay occasioned
to the parties but also a costly one to them. The matter also
clogged the already congested diary of the court below and
indeed this court. The situation is very unfortunate
because its effects are the very reason that court annexed
mediation was introduced to remedy. In answer, therefore,
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P.1336

to the first question posed of the effect of the consent

settlement order on the dispute between the parties, the
same is ,that, it is final' and binding upon the parties,'
; 'b" terminate~}he proceedings an,<:tis not suJ>ject to appeal, ;J"~'

~,.,review or interpretation. .
.,];,

We now turn to consider the second question which is

the effect of the consent settlement order on the
applications that were before the Learned High Court
Judge and Deputy Registrar from which this appeal arises.
Our considered view is that it renders both those hearings,
and decisions a nullity. This is the view we take on account
of our finding that the matter, having been mediated and
settled, could not be referred back to the trial court.
Further, what the Deputy Registrar purported to do was to
determine what amounts, if any, were due to the
Appellants by way of assessment. This power of
assessment conferred upon the Deputy Registrar is for the
purpose of complementing or completing a judgment. That
is to say, it assists in ascertaining damages awarded.
Resort to the Deputy Registrar in this matter was,
therefore, inappropriate because, whilst there can be an
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P.1337

assessment following a judgment, there can be no

assessment to follow a mediation settlement order because
such an order is' supposed to be complete and self
explanatory especially that it is structured by the p8rtieS
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themselves. For this reason,

. the parties, their. counsel and .
indeed, the mediator, need to ensure that there is clarity in
a mediation settlement order such as the one executed in
this matter. As Mr. S.A.G. Twumasi conceded, counsel for
the parties play the pivotal role in mediation to ensure that
such clarity is achieved. In this case, although the
mediator, parties and counsel cannot be faulted for
agreeing on the formulae to be applied in ascertaining and
computing the terminal benefits due to the Appellants, (i.e.
as in the Charles Mwale case), there was need for them to
go further and identify which particular Appellants were
entitled to payment and how much each one was entitled
to. It was, therefore, not enough for them to agree only on
the formulae because this did not assist them to reach a
practical solution that can be implemented in the absence
of further mediation. For this reason, the mediation office
must ensure that it selects an appropriately qualified
mediator from its multidisciplinary panel of mediators. In
.. J22

P.1338

this case, the record.,.reveals that the mediator appointed,

was in the employ of the Law Association of Zambia,
National Legal Aid Clinic For Women, which would suggest
that she is a lawyer by profession. The view we take.-is that
"- ..'"" . •••.,.-, .~.,~ >:~ .; .-
the mediation office should have appointed an acc(umtant
"

as mediator because the dispute involves calculating or

computing amounts due to the Appellants (if any) by
application of the formulae in the Charles Mwale case.
The dispute is, therefore, one which resides in the
accounting discipline.

The matter however, does not end with our finding

that the applications and decisions by the Learned High
Court Judge and Deputy Registrar are a nullity because
the dispute cannot by any stretch of imagination be said to
have been settled by the consent settlement order. The
background we have given, leading up to this appeal,
indicates that the mediation settlement order is not
complete for purposes of enforcement because there were
clearly some outstanding issues. This is what prompted the
parties to seek the guidance of the court. Further, the fact
that a mediation settlement order is said to be final does
..
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P.1339

not, in our considered view, preclude us, as the.final court

of justice, from giving guidance in a situation such as this
one where all the players, that is, the parties, their lawyers
and the mepiator
~
were at. fault in agreeing to
. .
an uncertain
.arid; therefore, unenforceable consent settlement order. '.'

This is the view we take because the mediation from which

the consent settlement order arose is annexed to our court
system and, therefore, part of the system as we
pronounced in the Bank of Zambia vs Nyambe and
others, case, referred to us by counsel for the
Respondents. Therefore, having exposed the parties to this
process we must, in exceptional cases such as this one,
and in the interests of justice, cure any defects arising from
such process. As a consequence of this, it is our view, that
rather than interpret, review or cause an assessment of the
consent settlement order, the court below should have
invoked its inherent jurisdiction under Order 3 rule 2 of
the High Court Act which states as follows:

"Subject to any particular rules, the court or a Judge may, in all

causes and matters, make any interlocutory order which it or
he considers necessary for doing justice, whether such order
• ••
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P.1340

has been expressly asked by the person entitled to the benefit

of the order or not".' •
"The effect of this order is that it 'gives a Judge of the
High"'Courtand a court, such as the D~]:>utyRegistrar, wide
discretionary powers to grant any interlocutory order that
the justice of the case deserves. Such an interlocutory
order may be given whether or not the beneficiary party
has requested for it. This demonstrates how wide the
powers of the Judge and court are in this regard.

Applying the law as we have stated it and the

reasonmg we have given in the preceding paragraph, we
are of the view that the Learned High Court Judge should
have taken cognizance of the fact that he had no power to
interpret, review or even refer the consent settlement order
to the Deputy Registrar for assessment. Consequent upon
this, the Deputy Registrar ought not to have adjudicated
upon the matter. The Learned High Court Judge or indeed
the Deputy Registrar should have invoked the powers
under Order 3 rule 2 by granting an order that the justice
of the case deserved by referring the matter back to
.,
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• ••

P.1341

mediation with specific guidance that the mediator, the

parties and their counsel should: iden'tify which of the
Appellants were entitled to payment of terminal benefits;"
.. ~the
:.,~. ~~~ formulae
.~
~.. to be used in ccomputin& "such terminal
';r-benefits; amounts due to ea13h Appellant, if any;' and . -
;~~

investigate whether or not there was an underpayment in

the moneys paid. (We use the word "guidance" in the
preceding sentence and not "instruction" because mediation
is party-driven and as such no instructions can be given to
the parties by this or any other court). Prior to this, an
appropriate mediator should have been identified from the
list of mediators kept by the mediation officer in terms of
Order 31 rule 5 of the High Court rules, with the
appropriate accounting qualification.

In arriving at the foregoing decision, we are alive to the

fact that the mediation rules do not provide for referral of
matters back to mediation by the court where there is a
settlement. We are still of the firm view that our decision
has the support of Order 3 rule 2 of the High Court Act,
especially that, the circumstances of this case are such
• •

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P.1342

that the matter can only best be resolved through

mediation.
,
By way of conclusion and in view of the observations
,
we,-tiave made in the"preceding pa.ragraph: we are (If tHe
~. ~
view that the proceedings both before the Learned High
Court Judge and Deputy Registrar were a nullity; and since
the appeal questions the ruling by the latter court, as if it
were a ruling properly so made; it must fail on all four
grounds and we accordingly dismiss it. In doing so, we,
order that the matter be referred back to mediation in
terms of the guidance we have given in the earlier part of
this judgment. As regards the costs, of this appeal and for
the proceedings in the court below, subsequent to the
consent settlement order, we are of the considered vIew
that the ends of justice dictate that they rest where they
have fallen.

. .
,~
M.-MALILA SC
SUPREME COURT JUDGE
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P.1343

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