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The Respondents were employees of the Appellant and were summarily dismissed from employment after being charged with inciting and or taking part in unconstitutional industrial action by withdrawing their labour without following the laid down procedure and violation of the provisions of the Collective Agreement. The Respondents subsequently filed a notice of complaint in the Industrial Relations Court (the “IRC”) alleging that the dismissals were wrongful and they sought numerous reliefs. The Respondents later applied for an order of interim attachment of property pursuant to rules 38 and 55 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambiaªᵇ on account of an alleged manifest intention on the part of the Appellant to wind up its business in Zambia. The Appellant opposed the said application on the basis that it was not tenable, amongst other grounds. The lower court granted the interim attachment of property leading to this appeal.
ª Rule 38 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia so far as is material provides that "The Court may, on the application of any party, make, as an interim order, any order which under the Act it could make as a final order in the proceedings"
ᵇ Rule 55 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia so far as is material provides that "Nothing in these Rules shall be deemed to limit or otherwise affect the power of the Court to make such order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court."
On appeal, the question arose whether under the Industrial and Labour Relations Act an order of interim attachment is an order which the IRC could make in the first place, and if so, whether such an order could be passed as a final order in proceedings before the IRC.
1. There is no inherent power in the IRC to grant an order of interim attachment of property. The power must be given by statute.
2. Even though the IRC is now a division of the High Court, it is still guided by its own Court Rules.
3. Interim attachment is a provisional or temporary relief which allows the plaintiff to attach the defendant’s property, whilst a court action progresses. It effectively restricts a defendant’s ability to deal with the attached property in their possession pending the outcome of the action.
4. The remedy which a plaintiff has to protect his future chances of payment is interim attachment under Order XXVI of the High Court Rules which can only be issued where the defendant is about to remove or dispose of property with intent to obstruct or delay execution of any decree that may be passed against him.
5. Once a final judgment is passed, interim attachment does not convert to attachment in execution as an order of attachment absolute. A charge for payment and further attachment, for example, under a writ of eligit is required before the attached property can be used in the execution of the judgment.
6. Even if rules 38 and 55 of the IRC Rules expressly give the IRC extensive powers to make any interim orders in the interest of justice, the IRC cannot make an order of interim attachment as a final order in proceedings before it, especially one touching on land as in this case. The jurisdiction of the Industrial Relations Court is limited to settling of labour disputes falling under the Act. It is an alternative forum to the High Court only in cases of labour disputes. N.B. Mbazima and others Joint Liquidators of ZIMCO Limited (in liquidation) v Reuben Vera SCZ Judgment No 6 of 2001 followed