Chibombe and Ors v AG (Appeal 123 of 2003) [2005] ZMSC 37 (11 November 2005)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 123/2003 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ALEXIS CHIBOMBE & 60 OTHERS Appellant AND THE ATTORNEY GENERAL Respondent Coram: Lewanika, DCJ. Chibesakunda and Chitengi, JJS. on 2nd November, 2004 and 11th November, 2005. For the Appellants : Mr. A. M. Kasonde of Messrs Kasonde & Company For the Respondent: No Appearance JUDGMENT Chitengi, JS, delivered the judgment of the court. In this judgment, we shall refer to the Appellants as the Complainants and the Respondent as the Respondent which is what they were in the Industrial Relations Court. We regret the delay in delivering this judgment. During the past two years the Court has been very busy with the Presidential Election Petition. .12 The facts of this case can be briefly stated. The Complainants worked lor the Respondent io various capacities and for various periods. hi 1992 (he (lovtsnincnl of (he Republic of Zambia issued circulars one of which was 1312 of 1998 to Government Ministries and Departments on correction of salary anomalies and restructuring which in effect meant retrenchment. The circulars were addressed to Permanent Secretaries and Directors but not to the Respondent. Although the circulars were not addressed to the Respondent also, the Respondent obtained a copy of Circular B12 of 1998 to learn ideas from it. The Respondent also obtained some ideas from parastatal bodies like the Bank of Zambia, the Zambia National Commercial Bank and ZCCM. The Respondent requested this information because it also wanted to reduce its staff levels. Criteria for exit, which it is not necessary to reproduce in this judgment, were set out. The Respondent’s management then appointed an administrative committee to work out salary and salary packages. The recommendations of this administrative committee were tabled before the Standing Order Committee responsible for salaries, approving conditions of service, salary allowances, etc. After consideration and modifications, the •Standing Orders Committee then approved the recommendations. Thereupon, the Clerk of the National Assembly, who is the. Chief Executive, issued National .13 Assembly Circular No. 49 of 1992 (hereinafter referred to as the Circular) providing for early retirement scheme. The Circular provided the early-retirement package as follows: - (i) Two months basic salary for each year of service. (ii) Long service bonus for officers who have been in the service of the Respondent for ten or more years. (iii) Gratuity earned (iv) Cash payment in lieu of leave. (v) Transport grant at the rate of 20% of basic annual salary. (vi) Salary in lieu of notice for six months, three months or one month as the case may be. (vii) Pension contribution as provided for under the Agreement signed between the Respondent and the Zambia State Insurance Corporation Limited to eligible officers. (viii) Zambia National Provident Fund contributions claimable by individual officers through the Respondent’s Accounts Department. The Circular was circulated to all the members of staff. Many members of staff took advantage of this scheme to go on early retirement. But those whose services were still required were dsked to stay on. All those who went on early retirement were paid their benefits in accordance with the Circular. The .14 payments were calculated by Accountants and checked by the Internal auditor for their correctness and they were correct. The Complainants’ position is that they were underpaid because they should have been paid under Cabinet Office circular B12 of 1992 because what was applicable to the Civil Service, was also applicable to them. In consequence of this, the complainants commenced this action in the Court below to be paid all their terminal benefits as approved by the Standing Orders Committee, damages and compensation. According to the complainants’ claims, the Standing Orders Committee approved that they be paid five months pay for each year of service. On this evidence, the Court below found that the circulars from the Cabinet Office were specifically addressed to Government institutions other than the Respondent. Consequently, the Court below held that the circulars from the Cabinet Office did not bind the Respondent. The Court below found that the relevant circular as to that the governed the Complainants was the Circular issued by the Clerk of the Respondent. In the result, the Court below found that the Complainants had failed to prove that the Cabinet circulars they relied upon applied to them. The Court below then dismissed the complainants’ claim as misconceived. J5 The Complainants now appeal to this Court against the decision of the Court below. The Complainants filed five grounds of appeal. The first’ ground of appeal is that the Court below erroneously unsuited the Appellants and erroneously dismissed the case by deciding matters which were not raised by the pleadings or affidavits at the trial before the lower Court. The second ground of appeal is that the Court below erroneously chose to hear only two of the sixty complainants (now the appellants) who appeared before the Court. The third ground of appeal is that the Court below erred and was wrong in point of law and in point of fact when it decided the present case differently from its own decision in James Mashanda V the Attorney General (IRC COM IL No. 215 of 1996) which was similar and on all fours with the present case. The fourth ground of appeal is that the Court below erroneously failed or neglected or ignored and entirely omitted from their judgment the Appellants’ statements of under payments as shown by the Appellants’ bundles of documents. J6 The fifth ground of appeal is that the Court below erred and was wrong in point of law and in point of fact as regards the onus of proof incumbent upon the Appellants. The sixth ground of appeal is that the Court below erred in point of law and in point of fact by reaching its judgment in complete disregard of the under payments which were submitted by the Respondents themselves in their own Respondents’ Bundle of Documents. Both Counsel filed written heads of argument. Mr. Kasonde, learned Counsel for the Complainants relied on his written heads of argument and made no oral submission. Counsel for the Respondent did not attend the hearing of the appeal. Before we deal with the details of the heads of arguments we wish to dispose of the second ground of appeal which states that the Court below chose to hear only two of the sixty Complainants. We have carefully gone through the record of proceedings before the Court below and we have found no evidence to show that the Court below browbeat the complainants into calling two witnesses only. In the record of proceedings there is no evidence of any protestations from Counsel who represented the Complainants in the Court below that he should not be restricted as to the number of witnesses he wanted to call on behalf of the Complainants. Indeed, even J7 the Court below did not rest its judgment on the ground that the complainants did not call sufficient witnesses. In the event, we find the second ground of appeal to be baseless and unsupported by any facts on the record. Mr. Kasonde’s written submissions on ground one are that according to the Complainants’ complaint and the Respondents’ Answer the issue for determination was whether or not the Complainants had been paid their full terminal benefits. It was Mr. Kasonde’s submission that reference by the Court below to the Cabinet Circulars and the circular did not resolve the issue whether or not the Complainants were paid their terminal benefits in full. Mr. Kasonde made long submissions on ground three and cited many cases to support his submissions that like cases should be treated the same. In this case, Mr. Kasonde said the Court below should have followed its decision in the case of James Mashata v the Attorney-General (unreported). Mr. Kasonde did not recite to us the facts of the Mashata case nor produce a copy of the judgment for us to see whether the facts of that case are the same as the facts of this case. The submissions on ground four are that the Court below erroneously failed to take into account the under payments stated in the Respondent’s own Bundle of Documents and .18 supplementary Bundle of Documents at pages 44 to 139 of the Record of appeal as supported with the Respondents’ Bundle of Documents at pages 150 to 271 of the record of appeal. It was Mr. Kasonde’s submission that this court should interfere to correct the under payments. On ground five Mr. Kasonde submitted that the Court below did not touch on the burden of proof and that the criteria applied by the Court below to dismiss the Complainants’ case was a matter of guess work, or arbitrary and baseless. It was Mr. Kasonde’s submission that the standard of proof was one of a preponderance of probability. Further Mr. Kasonde submitted that the use of the word “convince” by the Court below in its judgment meant that the Court below required the Complainants to present their case on a very high standard and not on a balance of probability, which is an error. On the sixth ground Mr. Kasonde submitted that although the Respondent said the Complainants were paid their terminal benefits in full the schedules of payments produced in the Respondents’ Bundle of Documents show that there were under payments and that the Respondents’ second witness, Mavis Kauluka failed to explain the two different sets of figures saying she was seeing the figures for the first time and that the two sets of figures were estimates. Further, Mr. Kasonde submitted that the Court below failed to take into account J9 50% salary increment awarded to Public Service workers backdated to 1st September, 1998. Mr. Kasonde then attached to his heads of argument a diagram showing a summary of staff retired. Some of the persons in the summary have nothing to do with this case, although their names appear on the list of those who were retired. We are not here investigating malpractices and the Respondents’ office, if any. The Respondents’ submissions on ground one are that the Complainants were correctly paid the terminal benefits under the Respondent’s conditions of service and that the Court below was correct to hold that the complainants were not entitled to be paid on the circular from Cabinet Office. We have already dealt with the second ground of appeal. On ground three it is submitted that the Court below correctly distinguished this case from the case of James Mashata V The Attorney-General (unreported). It is submitted that a Court of equal jurisdiction is not bound by the decision of that Court but only by a decision of a Superior Court. Further, it is submitted that the facts of the Mashata case are not on all fours with the facts of the present case. On ground four it is submitted that the Court below considered all the evidence before it and arrived at the J10 decision. It is submitted that there was nothing the Court could do because the circulars which the Complainants wanted to rely upon do not apply to the Respondent. On ground five it is submitted that the Court below appreciated the standard of proof as a preponderance of probabilities. We have carefully considered the evidence that was before the Court below, the submissions of Counsel and the judgment of the Court below. We proposed to deal first with the third ground of appeal which is about the decision of the Industrial Relations Court in the case of one Mashata. Neither party has given us the facts of this unreported case. We cannot go on a search for this case which was commenced almost some ten years ago. Where an authority is not one which cannot be easily found by this Court, the practice is that Counsel relying on the authority should provide a photostat copy to the Court. In this case, although both Counsel seem to know much about the Mashata case, they have kept us in the dark about it. It is, therefore, difficult for us to know what the Mashata case is all about and whether it is of any relevance to this case. This ground of appeal fails. . Ill We now deal with ground number five. We are bound to say that we find this ground of appeal as an exercise by Counsel to demean the Court, a practice which we strongly disapprove of. The person who presided over the Court below is a Judge and it is inconceivable to suggest, let alone think, that she would not know who bears the burden of proof and the standard of proof. This ground of appeal must fail and it fails. We now go back to ground one. If the dispute between the parties and the evidence of the Complainants’ witnesses are well understood it cannot be seriously argued that the Court below referred to matters that were not before it for adjudication. The Complainants’ witnesses’ evidence was that they were underpaid and according to them the Complainants should have been paid in accordance with circular B12 of 1998 which was applicable to civil servants. The Court below was, therefore, bound to make a finding on whether the circular B12 of 1998 applied to the complainants. The Court below found that circular B12 or indeed any other circulars from Cabinet Office were not applicable to the Respondent. On the evidence, we cannot fault the Court below on this finding. On the evidence it is clear to us that the Respondent is autonomous of the main stream Civil Service; that the Respondent determines its own conditions of service and salary structure and that the Respondent is not bound to .112 follow the conditions of service applicable to the Civil Service. This ground of appeal also fails. The fourth and sixth grounds of appeal are in fact one ground of appeal and can be dealt with together. With regard to these grounds of appeal, the complaint is that the Court below did not consider the under payments shown in the Complainants’ and the Respondent’s documents. To the extent that the Court below did not specifically mention the documents we agree. The Court below just made a blanket holding that the Complainants were not entitled to be paid under the circulars from the Cabinet Office. The Court below should have gone further to say that the Complainants were not under paid and should have shown how the Complainants were not underpaid. Be that as it may, we do not agree with Mr. Kasonde’s submissions that the Complainants were underpaid. We have looked at the documents that were filed and relied upon by the parties. The documents filed by the Complainants showing under payment cannot be relied upon by the Complainants to show that they were under paid. The calculations on these documents are clearly based on the circulars from the Cabinet Office and not on the circular from the Respondent. The documents filed by the Respondent are a list of Complainants and payment vouchers in respect of J13 each complainant. The list has against the name of each complainant an amount which in most cases differ with what is on the payment voucher.. According to Mr. Kasonde, this shows under payments. It was also Mr. Kasonde’s submission that the Respondent’s witnesses have failed to explain this discrepancy. We do not agree with these submissions. The Respondent’s accountant witness satisfactorily explained that the list was used for purposes of getting money from the Budget office and as a precautionary measure the amount in each case was to be higher. We find that to be good sense in order to forestall any contingencies. The witness said the amount actually due to each Complainant is the one on the payment voucher. As we have said we have looked at the payment vouchers and the calculations are according to the Circular issued by the Respondent which Circular is applicable to the Complainants. We are satisfied that the Complainants were not under paid as they claim. In the result, we affirm the judgment of the Court below and dismiss this appeal as being unmeritorious. Having regard to the circumstances of this case we/make no order a$ to costs. D. M. LEWANIKA DEPUTY CHIEF JUSTICE ........ ................. -I... (W ....... L. P. CHIBESAKUNDA SUPREME COURT JUDGE \ PETER CHITENGI SUPREMETcOURT JUDGE