Mumba and Others v Consumer Buying Corporation of Zambia and Anor (Appeal 149 of 2001) [2003] ZMSC 177 (5 August 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 149/2001 HOLDEN AT KABWE {CIVIL JURISDICTION} BETWEEN: Robbie Mumba and Others Appellants And Consumer Buying Corporation of Zambia - 1st Respondent Zambia Privatisation Agency 2nd Respondent Coram: Ngulube, CJ, Mambilima and Chitengi, JJS On 16th June, 2003 and 5^ August, 2003. For the Appellants For Appellant No. 70 For the 1st Respondent For the 2nd Respondent - - - - Mr. V. K. Mwewa of Mwewa and Company Mr. B. Kang'ombe of Kang'ombe and Company. No Appearance Mr. M. Z. Mwandenga of Mwandenga and Co. JUDGMENT Mambilima JS, delivered the Judgment of the Court Authorities referred to: (1) Consumer Buying Corporation of Zambia (In Liquidation) and Zambia Privatisation Agency vs Robbie Mumba & Others, Appeal No. 156 of 1999. (2) John paul Mwila Kasengele vs Zambia National Commercial Bank Appeal No. 161 of 1999. (3) Development Bank of Zambia & Peat Marwick vs Sunvest Limited and Sun Pharmaceuticals Limited [1995-1997] ZR 187. (4) Shamwana & Others vs The People 1985 ZR 41 at Page 111. (5) Baldwin and Frances Ltd vs Patent Tribunal Limited (1959) A. C. 663 at page 691. (6) Stephenson vs Garnett [1898] 1 QB 666. This is an appeal against an assessment of damages by the Deputy Registrar sitting at Ndola. The Appellants had moved the Court seeking an assessment of damages pursuant to the Judgment of the High Court dated IS01 September, 1999. In her Judgment, the learned Deputy Registrar found that the Judgment was satisfied upon payment of a sum of K388,443,622.00. by the Respondent pursuant to a Writ of Fieri Facias issued against it by the Appellants. The brief history of this case is that the Appellants commenced their action on 22nd November, 1995 through a Writ of Summons in which they made various claims which included a claim for an Order, that they should be paid the difference between the salaries paid to them by the 1st Respondent and the amount actually paid out by the 2nd Respondent. The trial Court found ;n their favour on this claim and Ordered that the Appellants be paid the difference. The Respondent appealed against the High Court Judgment to this Court and on 5th March, 1998, this Court dismissed the appeal and upheld the Judgment of the lower Court. From the record of appeal, it would appear that while this case was running, Appellant No. 170, Mr. Tenford C. Mazuba commenced a separate action under Cause No. 1996/HN/784 on 20th May, 1996 against the two Respondents, claiming payment of his terminal benefits in accordance with his ZIMCO Conditions of Service. The case was tried before another High Court Judge who ordered that Mr. Mazuba should be paid terminal benefits up to 30th October 1995 as per ZIMCO Conditions of Service. The Court referred the matter of assessing the difference between what was actually paid and what ought to have been paid by 30th October, 1995 to the Deputy Registrar. The Court made this Order after finding that the Appellant had failed to prove that the calculation of his terminal benefits was wrong and that the Appellant had been involved in the calculation of the terminal benefits. An attempt to consolidate that action with this case was made but the consolidation was later set aside for irregularity. The learned Deputy Registrar found that Mr. Mazuba had pulled out of these proceedings to commence his own action in which he sought to be paid allowances but without success. She also found that Mr. Mazuba's claims in these proceedings were an abuse of the Court process. She dismissed his claims with costs to the 2nd Defendant. The Appellants filed a Notice of Assessment on 13th October, 1997 to which they attached schedules showing the amount due to each Plaintiff on the basis of the Judgment. The total amount payable to the Appellants according to these schedules was K382,993, 061.00. The Deputy Registrar found after scrutinizing the schedules that they represented the true difference between what the 1st Respondent was paying and what the 2nd Respondent paid to the Appellants. After referring to our Judgment on appeal, in this case of Consumer Buying Corporation of Zambia Limited (In liquidation) and Zambia Privatisation Agency vs Robbie Mumba and Others(1) and our decision in the case of John Paul Mwila Kasengele and 40 others vs Zambia National Commercial Bank(2), the learned Deputy Registrar concluded that the Appellants were basing their claims for more allowances on the Supreme Court Judgment in this case in which we stated that perquisites or fringe benefits have a value so that when computing the true earnings or the true loss of earnings of an employee, they have to be logically taken into account. The Deputy Registrar pointed out that after this observation in our Judgment, we then stated that the Management of the 1st Respondent had carried out a very proper exercise " when the perquisites previously enjoyed in kind were translated into allowances of the allowable kind in terms of the instructions on record from ZIMCO" According to the Deputy Registrar, the Court was endorsing the trial Court's finding that allowances were incorporated into basic pay in accordance with the schedules prepared by ZIMCO. She was satisfied that the allowances that the Appellants were entitled to were those payable to each employee during his employment in accordance with the schedules produced at the trial. The Deputy Registrar also found that no evidence had been adduced to prove that employees at ZIMCO headquarters were paid the allowances which the Appellants were demanding. Thus after considering schedules produced by the Appellants, the Judgment of the trial Court and the Judgment given by this Court on appeal, she found that the Appellants had failed to prove that they were entitled to more allowances than those covered by the Judgment. It is on record that after the Judgment of this Court, on 5th March, 1998, Mr. Mwewa, Counsel for the Appellants wrote to the 2nd Respondent advising that the amount due and payable to his clients was K358, 298, 622.00, together with costs in sum of K20,000,000. Mr. Mwewa issued a Writ of Fieri Facias on 1st April, 1998 seeking to recover these amounts as a result of which the 2nd Respondent paid K388,443,622. on behalf of the 1st Respondent. The learned Deputy Registrar observed that if at all there was any more money owing under the Judgment, Mr. Mwewa would have waited for assessment instead of rushing to execute the Judgment. She found on the evidence before her, that the 2nd Respondent had discharged its responsibility under the Judgment. In their appeal to this Court, the Appellants have filed two grounds of appeal namely, that the Deputy Registrar erred in law and fact when she dismissed the Appellant's application to be paid similar allowances paid to ZIMCO Headquarters staff on the ground that no evidence was laid before the Court to prove this assertion; and secondly, that the learned Deputy Registrar erred in law and fact when she held that the Appellants claims had been satisfied by the payment of the sum of K388,443,622. Appellant No. 170 Mr. Tenford Mazuba filed eight grounds of appeal and the gist of most of these grounds attacks the reference by the learned Deputy Registrar to his proceedings in Cause No. 19996/HN/784. He contended that the learned Deputy Registrar erred in law and fact to hold that he had pulled out of these proceedings and that Cause No. 1996/HN/784 was never mentioned by the Respondents or their advocates. The Appellant No. 170 further stated in his grounds of appeal that the allowances he was claiming were not included in his claim in Cause No. 1996/HN/784 and the amount of money which he was paid in these proceedings amounting to K600,000.00. He stated in his sixth ground of appeal that the learned Deputy Registrar grossly misdirected herself when she held that allowing the Appellant's claims would amount to an abuse of the Court process. Lastly, he contends that the Deputy Registrar erred in law by not allowing the Appellant's claim for Education, Housing and Holiday Allowances in accordance with the current judicial trends which emphasizes that all benefits enjoyed during an employee's period of service should be incorporated into the employees salary for purposes of computing terminal benefits. In his oral and written submissions, Counsel for the Appellants, Mr. V. K. Mwewa submitted that there was ample evidence on record to confirm that allowances such as fuel and medical were paid. He also argued that the Deputy Registrar had no jurisdiction to revisit the issue of the payment of K388,443, 622.00 since it was discussed by her predecessor and the Hon. Mr. Justice S. M. Simachila. Submitting on behalf of Appellant 170, Mr. Kang'ombe submitted that Mr. Mazuba did not file a notice of discontinuance to indicate that he had pulled out of these proceedings. On the second ground of appeal, Mr. Kang'ombe submitted that in Cause Number 1996/HN/784, the Court Ordered that Mr. Mazuba be paid according to his Conditions of Service. The Court directed Mr. Mazuba to establish his claim before the Deputy Registrar and that the Deputy Registrar should calculate the difference between what was paid and what ought to have been paid. In support of the third and fourth grounds of appeal, Mr. Kang'ombe argued that Cause Number 1996/HN/784 was never referred to by the Parties. He also stated that this action was for a specific claim of K59,728, 740.30 and it did not incorporate allowances like education, housing and holiday. Assessment of the amount due could not proceed because the 2nd Respondent paid the amount claimed due in full. Submitting in support of ground 5, Mr. Kang'ombe stated that the amounts paid in Cause Number 1996/HN/784 and these proceedings did not include allowances. The Appellant is contending that he is entitled to those allowances which are in respect of perquisites which he enjoyed while in employment. According to Counsel, the 2nd Respondent's witness admitted that the Appellant enjoyed these Conditions of Service. In ground 6, Mr. Kang'ombe is arguing that current judicial trends emphasizes that all benefits or allowances payable to an employee during employment ought to be incorporated into an employee's salary for purposes of computing terminal benefits. According to Mr. Kang'ombe, the learned Deputy Registrar erred in her interpretation of the Supreme Court decisions in the cases of Consumer Buying Corporation of Zambia (In liquidation and Zambia Privatization Agency vs Robbie Mumba and others (1) and John Paul Kasengele and 40 others vs Zambia National Commercial Bank (2) in finding that the allowances the Appellant was asking for were outside the scope of the Judgment. He submitted that the letter of 28th March, 1995 from the Ministry of Finance directed that salaries and allowances of employees of ZIMCO and its subdivisions should be merged unconditionally. Relying on the evidence of one, Elizabeth Jere, he argued that Mr. Mazuba was entitled to fuel allowance since he had a personal-to-holder vehicle. In support of ground seven, Mr. Kang'ombe tabulated a schedule of payments made by the Respondents to Mr. Mazuba and a schedule of claims for fringe benefits/allowances not yet paid. These fringe benefits are in respect of education, free housing and social tour. On ground 8, Mr. Kang'ombe submitted that the learned Deputy Registrar grossly misdirected herself when she held that allowing Mr. Mazuba's claims would amount to an abuse of the Court process. In response to the submissions by Mr. Mwewa on behalf of the 996 Appellants, Mr. Mwandenga submitted that the Deputy Registrar was on firm ground when she dismissed the Appellant's application to be paid similar allowances as those paid to ZIMCO Headquarters staff on the ground that there was no evidence laid before the Court to prove the claim. He referred us to the evidence of DW1, Mr. Tembo when he stated with regard to the claim for fuel allowance that this allowance was paid to the Chief Executive, Heads of Department and Accountants and that fuel was provided for pool vehicles. According to this witness, this did not amount to allowances to be incorporated into a salary of an individual. On the Medical Allowance, this witness testified that this allowance was not incorporated into salaries. An employee would be reimbursed expenditure on Medical bills after falling sick up to a limit of 25% of the actual basic salary for non-unionized employees and 10% of the actual basic salary for unionized employees. According to Mr. Mwandenga, this evidence does not support the contention that ZIMCO Headquarters staff were paid fuel and medical allowances. In the alternative, Mr. Mwandenga argued that the question before the Deputy Registrar was not whether the 996 Appellants should be paid similar allowances as those paid to ZIMCO Headquarters staff, but whether the Appellants including Mr. Mazuba were still owed money after they had been paid through the Sheriff of Zambia, through execution levied following the Supreme Court decision in the case of Consumer Buying Corporation Limited (ZCBC) (in liquidation) and Zambia Privatisation Agency (ZPA) vs Robby Mumba and Others. He submitted that the Appellants lamentably failed to adduce evidence of unpaid allowances, and the learned Deputy Registrar could not be expected to pluck those allowances from the air. On the argument that the Deputy Registrar erred in law and fact when she held that the Appellant's claim had been satisfied by the payment of K388,443,622.00, Mr. Mwandenga submitted that the Deputy Registrar reached this decision after analyzing the evidence which was adduced before her, together with the submissions made by the Parties. In response to the submissions on behalf of Appellant Number 170 Mr. Tenford Mazuba, Mr. Mandenga submitted, on his 1st ground of appeal, that Mr. Mazuba commenced a separate cause of action number 1996/HN/784 while this case was proceeding, claiming full payment of his retrenchment benefits. He attempted to consolidate that action when the main action in Cause Number 1995/HN/1849 which consolidation was subsequently set aside for irregularity. Mr. Mwandenga argued that if Mr. Mazuba had indeed not pulied out of Cause Number 1995/HN/1849, he would not have attempted to consolidate the 2 Actions. On the argument that Mr. Mazuba did not file a Notice of discontinuance or withdrawal as required by practice and procedure, Mr. Mwandenga submitted that there are instances when matters have been abandoned by parties without following this procedure. He argued that by not withdrawing from Cause Number 1995/HN/1849. and proceeding with his new Cause in Cause Number 1996/HN//784, Mr. Mazuba was abusing the process of the Court. Counsel referred us to the case of Development Bank of Zambia (DBZ) and Peatmarwick Vs. Sunvest Limited and Sun Pharmaceuticals Limited (3) in which we disapproved of parties commencing a multiplicity of actions over the same subject matter. On the 2nd and 3rd grounds of appeal advanced by Mr. Mazuba, Mr. Mwandenga submitted that the learned Deputy Registrar did not quote the Judgment of the Court in Cause Number 1996/HN/784 out of context. The Judge in that Cause found that Mr. Mazuba had not established his claim that certain allowances were not incorporated into his salary when calculating his retrenchment benefits and ordered that these benefits be calculated up to 30th October, 1995 in accordance with the ZIMCO Conditions of Service. The Judge referred the matter to the Deputy Registrar for assessment for the sole purpose of determining how much Mr. Mazuba was going to be paid after considering the uncertainty surrounding the 25% of K41,516,402 which was paid for the purpose of the house and this uncertainty was brought to the attention of the Court by the Counsel for the Appellant. Mr. Mwandenga also submitted that Cause Number 1996/HN/784 was brought to the attention of the Court by Mr. Mazuba himself in his Affidavit evidence in support of the assessment proceedings. On this premise, Mr. Mwandenga submitted that it is fallacious for Mr. Mazuba to now argue that the learned Deputy Registrar misdirected herself. He further referred us to the case of Shamwana & Others vs the Peopie(4) in which we stated: "In an appropriate case, therefore, particularly where, as in this case facts may be judicially noticed after an enquiry has been made, a judge has power, not only to look at his own records, but also at those of another judge, and to take judicial notice of their contents. This applies to all Courts in the Republic." He also referred us to the statement of Lord Dening in the case of Baldwin and Frances Limited vs Patent Tribunal Limited that(5) "all that happens is that the Court is equipping itself for its task by taking Judicial Notice of all such things as it ought to know in order to do its work properly." Mr. Mwandenga submitted on the authority of these authorities that the learned Deputy Registrar was on firm ground to refer to proceedings in cause number 1996/HN/784. In reply to the 4th, 5th and 6^ grounds of appeal, Mr. Mwandenga referred us to the endorsement of the Claim on the Specially endorsed Writ issued by Mr. Mazuba in cause number 1996/HN/1784 and the endorsement on the Writ in cause number 1995/HN/1849 in these proceedings and submitted that both these endorsements relate to claims for the payment of retrenchment benefits however they were going to be calculated. On the face of the two endorsements, it cannot be seen whether the claims in respect of education, housing and holiday allowances were included. Mr. Mwandenga further submitted that since the claims in both cases relate to the payment of retrenchment benefits; by not withdrawing from Cause Number 1995/HN/1849, when he commenced Cause Number 1996/HN/874, Mr. Mazuba was intending to benefit twice and the Deputy Registrar cannot therefore be faulted for having found that Mr. Mazuba had indeed wanted to benefit twice. Mr. Mwandenga also submitted that by keeping two actions dealing substantially with the same issues, Mr. Mazuba was abusing the process of the Court. For this submission, He referred us to the case of Stephenson vs Garnett(6) in which it was held that: "An action brought in respect of a question identical with one which has already been determined between the parties will be dismissed as an abuse of the process of the Court, provided that the issues are truly the same. Mr. Mwandenga submitted that since the claims for inclusions of certain allowances had been dismissed in Cause Number 1996/HN/784, the learned Deputy Registrar was in order to have dismissed the claims for the same allowance in Cause Number 1995/HN/1849 as being an abuse of the Courts process. Mr. Mwandenga urged the Court to dismiss the 7th ground of appeal in Mr. Mazuba's heads of argument on the ground that this is not reflected in the Memorandum of Appeal filed in the Court and appearing on pages 5 and 6 of the record of appeal. He stated that this ground was inserted without leave of the Court and should therefore not be entertained. On the last ground of appeal which appears as ground 7 in the Memorandum of Appeal, Mr. Mwandenga submitted that there is no current Judicial trend which emphasizes that all benefits enjoyed during an employee's period of service should be incorporated into the employee's salary for purpose of computing terminal benefits. He stated that if such a trend exists, then it is narrow and not of universal application. He submitted that incorporation of allowances is dependent on conditions of service. He referred us to our decision in these proceedings, i.e. Zambia Consumer Buying Corporation (ZCBC) and Zambia Privatisation Agency (ZPA) vs Robbie Mumba & Others (1) In which we stated that the 1st Defendant carried out " a very proper exercise when perquisites previously enjoyed in kind were translated into allowances of the allowable kind in terms of the instruction on record from ZIMCO", Mr. Mwandenga submitted that from this observation by the Court, it is not all allowances that must be merged into the salary, but only those specified as the ones to be merged and according to the instructions from ZIMCO, the allowances in issue are those that were paid in cash and monthly as per circular from ZIMCO. These circulars were exhibited in the Affidavit in Opposition to the Notice of Assessment in the Court below. He submitted that these allowances were paid and all the allowances which the Appellants are asking for are outside the scope of the Judgment given by this Court on appeal. Mr. Mwandenga urged this Court to dismiss the appeals for lack of merit. We have considered the Judgment of the learned Deputy Registrar, the submissions by Counsel and the issues raised. With regard to the Appeals by the 996 Appellants, it would appear that they sought to be paid allowances similar to those paid to ZIMCO Headquarters staff, notably fuel and medical allowances. Mr. Mwewa referred us to the evidence of DW1, Tembo on page 106 line 15 of the record of appeal in which the witness stated that he was paid fuel allowance and the same payment should apply to ex ZCBC workers. The witness also alluded to the payment of medical allowance in form of a re-imbursement upon actual expenditure. On this evidence, Mr. Mwandenga referred us to the evidence of the same witness on page 105 of the record of appeal in which he said that fuel allowance did not amount to an allowance to be incorporated into a salary of an employee. Apart from this evidence, which was from a defence witness, the Appellants did not adduce any evidence to show that they should have been paid similar allowances paid to staff at ZIMCO headquarters. We agree with Mr. Mwandenga that the question before the Court was not whether the Appellants should be paid similar allowances as those paid at ZIMCO Headquarters but whether the Appellants were still owed money after they had been paid. In our Judgment on appeal by the Respondents, we found that the 1st Respondent had carried out a "proper exercise when the perquisites previously enjoyed in kind were translated into allowances of the allowable kind in terms of the instruction on record from ZIMCO". On the second ground of appeal, that the learned Deputy Registrar fell in error to have found that the Judgment was satisfied by the payment of K388,443,622.00, it is common cause that the Appellants levied execution to realize this amount. This was done by their Counsel even before assessment of damages and as the learned Deputy Registrar properly observed, execution was levied in apparent execution of the Judgment of this Court. The Judgment sum was worked out by their Counsel, who must have included all the allowable allowances as observed by this Court. In our view, the Deputy Registrar was on firm ground not to entertain fresh claims. In our Judgment on appeal delivered in these proceedings, we found that the allowances to be incorporated were already calculated in that record and paid. We did not open any doors to fresh claims and fresh litigation and it cannot be argued that the Supreme Court either awarded or generated or proposed any fresh claims. Consequently, the appeal by the 996 Appellants cannot succeed. It is dismissed with costs to the 2nd Respondents. Coming to the appeal by Mr. Mazuba, we find that he was properly paid under Cause Number 1995/HN/1849. As we have stated above, we did not open any doors to fresh claims in that matter when it came before us on appeal. It is common cause that while this action was subsisting, Mr. Mazuba commenced another action claiming retrenchment benefits, which in our view was the gist of the claim in these proceedings. This was the same subject matter and as we stated in our decision in the case of Development Bank of Zambia & Peat Marwick vs Sunvest Limited and Sun Pharmaceuticals Limited/3) we disapprove of parties commencing a multiplicity of actions over the same subject matter. Be that as it may, we have gone through the Judgment of Chibesakunda J (as she then was) in Cause Number 1996/HN/748. It is clear to us that Mr. Mazuba's claim for allowances did not succeed. Also, Mr. Mazuba has conceded that he was paid the total sum he claimed before the matter went for assessment. In our view, the learned Deputy Registrar cannot be faulted for having taken into account the action which Mr. Mazuba started which was basically founded on the same facts as these proceedings. The wealth of authorities, some of which have been cited to us by Mr. Mwandenga describe such conduct as an abuse of the process of the Court. The learned Deputy Registrar properly concluded that Mr. Mazuba wanted to benefit twice. On the argument that current judicial trends emphasizes that all benefits enjoyed by an employee during his period of service should be incorporated into his salary for purposes of computing terminal benefits, we cannot help but admire Counsel's ingenuity to introduce new elements into the law of contract. Employment is basically in the realm of contract governed by ascertainable terms. Employees of ZIMCO and its subsidiaries have had allowances incorporated into their salaries for the purpose of computing their terminal benefits on the basis of a directive from the Ministry of Finance through a letter issued on 28th March, 1995. Tinis Condition was not created by the Court. Indeed, in our Judgment on appeal, we did clearly state that perquisites enjoyed in kind were translated into allowances of the allowable kind "in terms of the instruction from ZIMCO". From the foregoing, we find no merit in the appeal by Mr. Mazuba. It is also dismissed with costs to the 2nd Respondent. I. C. M. Mambilima JUDGE SUPREME COURT JUDGE SUPREME COURT 18