Mwelwa Lawrence Mzumali v Nomad African Travel Limited (APPEAL No. 56/2020) [2022] ZMCA 185 (27 January 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA APPEAL No. 56/2020 (Civil Jurisdiction) AND APPELLANT NOMAD AFRICAN TRAVEL LIMITED RESPONDENT Chishimba, Majula and Muzenga, JJA On 18th November 2021 and 27th Janaury, 2022 For the Appellant: For the Respondent: In Person NI A JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Kitwe City Council vs William Ng'uni (2 005) Z. R. 57 (S. C.). 2. Catherine M. Kabika vs Ben Mubiana Malamo (SCZ Appeal No. 175/ 2009) 3. Sithole vs State Lotteries Board (1975) ZR 106 4 . Sablehand Zambia Limited vs Zambia Revenue Authority (2005) Z. R. 109 (S. C) 5. Colgate Palmolive (Z) Inc vs Chuuka (SCZ Appeal No. 181/2005). 6. Chola Chama vs Zambia Electricity Supply Corporation Limited (2008) 1 ZR 222. J2 1.0 INTRODUCTION 1.1 The appellant was employed from the year 2003 to 2009 by the respondent. In this case there were two differing p riods of employment. The first one relates to the period 2003 to 2006 , while the second one relates to the period 2006 to 2009. 1.2 During the first period, the appellant worked for the respondent and multiple other employers and was thus considered to be an independent contractor. Moving on to the period 2006 to 2009 the appellant and the respondent executed an oral contract of service in which the appellant's job title was that of a general worker. 2.0 BACKGROUND 2. 1 The background to this matter is that the respondent terminated the appellant's oral contract of employment on 31 st April 2009. Aggri ved with the turn of events, th appellant filed a complaint in the Industrial Relations Division of the High Court se king for an order for payment of redundancy package, unpaid wages and leave days. He also sought for damages for breach of contract and costs. 3.0 FINDINGS AND DECISION OF THE COURT BELOW 3. 1 After a critical analysis of the evidence, the Judge in the court below (Musona J.) made with the following findings of fact: 3.2 That the appellant was employed on a contract of service on a permanent basis from the year 2006 to 2009. For the period J3 2003 and 2006, he was an independent contractor who worked for various people including Mr. Baird and Ms. Southwood, directors in the respondent company. 3.3 He further found that there was an oral contract of service which had been executed by both parties governing the ,employment relationship between the parties. 3.4 The trial Judge found that the employment was terminated by way of redundancy on 31 st April 2009, and that the appellant was therefore entitled to be paid full redundancy package for that particular period in his capacity as a general worker. That the applicabl redundancy package prevailing was two months basic pay for each completed year of service. 3.5 The court below d clined to grant damages sought by th appellant on account of the fact that he had already awarded redundancy pay. The claim for unpaid wages was equally unsuccessful for the reason that it would be unjust enrichment. 3.6 As regards the claim for leave days, the learned trial Judge found that the appellant had not been given his leave pay for the period 2006 to 2009 and in line with clause 4 of the terms and conditions for a general worker, he awarded leave to be paid calculated at the rate of 2 days per month. The other reliefs granted were interest and costs. J4 4.0 GROUNDS OF APPEAL 4.1 The dissatisfaction with the decision of the court below is what inspired him to appeal to this court on ten grounds. As the grounds have been couched in a lengthy fashion and not in a brief and concise manner as required by the Rules, we shall not reproduce them but simply summarise. 4.2 The appellant has a multitude of grievances and is appealing against the following: (i) The amount of time allocated for tendering submissions. (ii) The award of the redundancy package being based on allegedly a contentious and fraudulent contract. (iii) The amount of redundancy and leave days awarded, given that he had been declared redundant, he ought to have been kept on the pay roll. (iv) That the benefits awarded were based on the allegedly fraudulent oral contract as opposed to his employment status on the reference letter. (v) Linked to No. (iv) above that the Judge erred in law and fact by not considering the reference letter which had accurate information about his employment status i.e. that he was not a general worker. JS 1(vi) That there was failure by the Judge to order the respondents to produce the original contract which needed scrutiny. (vii) That his claim to be awarded benefits was predicated on the Employment Act Cap. 268 of the Laws of Zambia and therefore the finding by the Judge that it would amount to unjust enrichment was wrong as it is a constitutional right. (viii) Further, there was no consideration by the Judge of the affidavit evidence and no cross-examination of the respondents as they failed to appear in court. (ix) In addition that the Judge rushed to pass judgment without cross-examination of both parties. 5.0 APPELLANT'S ARGUMENTS 5.1 The gist of the appellant's argument in ground one is that the limited time allocated to him by the lower court for him to prepare his submissions resulted in him omitting vital points and a closing prayer. He contended that this was unfair and an affront to his rights. 5.2 In ground two, it was argued that the trial court wrongly relied on a fraudulent contract which had false details in awarding the redundancy package. The appellant emphatically submitted in respect of ground three that he was entitled to a full package of terminal benefits as stipulated in the J6 Employment Act since he did not resign but was declared redundant by the respondent. 5.3 In respect of grounds four and five the thrust of his assertion was that the learned trial Judge erred when he failed to consider the reference letter which indicated that he was not a general worker. 5.4 As regards grounds six and seven, the contention was that the benefits the appellant was claiming were in line with the Employment Act, Chapter 268 of the Laws of Zambia and the Constitution of Zambia. 5.5 The disappointment in grou nds eight and nine was that the learned trial J u dge failed to consider the affidavit deposed by the appellant that was filed in support of the notice of complaint. In addition , th e appellant was irked by the fact that the court did not cross examine both parties during trial of the matter. 5 .6 On th e tenth and final grou nd of appeal, the appellant complained about the t rial J udge's order to expunge certain portions of his pleadings th at were filed in su pport of his com plaint. 6.0 RESPONDENT'S ARGUMENTS 6 . 1 There were no head s of arguments filed by th e respondents. 7.0 HEARING OF THE APPEAL J7 7.1 We sat to hear the appeal on 18th Novemb er, 2 0 2 1. There was no appearance on the part of the responden t. Being satisfied that they were served with the notice of h arin g, we p roceeded to hear the appeal. There were no reasons a dvan ced for their absence. The appellant placed fu ll reliance on the grounds of appeal and heads of arguments that he filed. 8 .0 CONSIDERATION AND DECISION OF THIS COURT 8.1 We have thoroughly examined the record and the s u bmissions by the appellant. 8.2 Submissions The issue that the appellant is grappling ith in ground one is that the learned trial Judge did not accord him a d quat tim for him to prepare and file submissions which resulted in the omission of certain information and a closing p rayer. In addressing the concern raised by the appellant, we have looked at he decision of th Suprem e Court regarding th e status of submission s to the court in the determination of cases as articulated in the case of Kitwe City Council vs William Ng'uni1 wh re it was observed : "The court is not bound to consider counsel's submissions because submissions are only meant to assist the court in arriving at a Judgment." 8 .3 An examination of the judgmen t of the court below rev a ls that the trial Judge placed great emp has is on the evidence a nd J8 the applicable law to the issues that were before him in resolving the complaint. We cannot therefore fault the lower court for the decision it made due to the fact that a court is not bound by submissions of the parties as they are meant to only assist the court in arriving at its decision. This position was reiterated in the case of Catherine M. Kabika vs Ben Mubiana Malamo2. Failure to take into account submissions is not fatal in this regard. This ground of appeal therefore fails. 8.4 Fraud The frustration 1n grounds two and six stem from the trial Judge's alleged reliance on a fraudulent contract which had false details. It is trite law that fraud must be specifically pleaded and proved on a standard higher than a balance of probabilities. This is in line with the holding in Sithole vs State Lotteries Board3 at page 115 where it was observed that: '{if a party alleges fraud the extent of the onus is greater than a simple balance of probabilities.'' 8.5 This principle was also affirmed in the case of Sablehand Zambia Limited vs Zambia Revenue Authority4 where the Supreme Court held: "Where fraud is an issue in the proceedings, then a party wishing to rely on it must ensure that it is clearly and distinctly alleged. Further, at the trial of the cause, the party alleging fraud must equally lead evidence, so that the allegation is clearly and distinctly proved. Jg Allegations of fraud must, once pleaded, be proved on a higher standard of proof, than on a mere balance of probabilities, because they are criminal in nature." 8. 6 Reverting to the facts of this case, the judgment of the court below shows that there was no consideration of the issue of fraud. We note from the record that there was no evidence led by the appellant to substantiate his allegation of fraud. We have scrutinized the record of appeal and the view we take is that although the issue of fraud was raised in the complaint, it was not substantiated by evidence at the trial. There was no shred of evidence led by the appellant. We stand guided by the cases of Sithole3 and Sablehand4 aforecited, that allegations of fraud must be proved on a higher standard than a mere balance of probabilities. That being the case the trial Judge cannot be faulted for not finding fraud in the absence of substantiation at the trial. We accordingly dismiss this ground of appeal for want of merit. 8. 7 Employment status The resentment in grounds four and five is on the work status of the appellant as regards the employment relationship that he had with the respondent. The appellant is attacking the lower court for finding that he was a general worker. His contention, is that he was not just a mere general worker and that he had greater responsibilities which were borne out by the reference letter authored by the respondent. JlO 8.8 Firstly, we wish to state the underlying principle of law which is that when parties freely and voluntarily enter into a contract, the role of the court is simply to enforce it. The case of Colgate Palmolive (Z) Inc vs Chuka5 is instructive in which the court held: "If there is anything more than another which public policy requires is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced in the courts of justice." 8. 9 In its decision on the status of employment for the appellant, the lower court relied on the record of oral contract of service exhibit 'NAT 2' which is at page 72 of the record of appeal. Our examination of the said document shows that the job title for the appellant was general worker. 8.10 We have also perused the various reference letters authored by the respondent as well as the terms and conditions of service exhibited at page 73 (exhibit 'NAT3 '). From our perspective, these articulate the appellant's capabilities and were meant to assist him in finding employment. They do not indicate his job title. What is clear from the record is that he did endorse on the oral con tract of service and is the ref ore bound by the terms and conditions therein. It is trite law that the court's role is simply to enforce contracts that have been validly entered into by the parties. Jl 1 8.11 Thus the argument by the appellant to the effect that he was not a general worker flies in the teeth of the evid nee and is bound to fail. We hereby dismiss it for lack of merit. 8.12 Ret ention on payroll Th next ground of appeal is against the decision of th lower court when it held that paying the appellant salaries from 2009 to date would amount to unjust enrichment. It is th appellant's contention that he is entitled to be retained on the payroll until payment of his full terminal benefits. There is a legion of authorities which articulate the principle that du ring the period an employee is on termination there is no consideration to justify paying the employee a salary as doing so would amount to unjust enrichment. One case that springs to mind is the cas of Chola Chama vs Zambi a Electricity Supply Corporation Limit ed6 where the Supreme Court held: ('In the case of Siamutwa vs Southern Province Cooperative Marketing Union Limited and Finance Bank (Z) Ltd the case relied upon by the trial court, the court stated as follows: The appellant never rendered any services to the 1st respondent from the time that his services were terminated on 20th May, 1999 up to the date of Judgment in May, 2020. There would therefore be no consideration for the money which could be paid to the appellant where such an J12 order was made. In our view, this would amount to unjust enrichment" 8.13 The Siamutwa case made the point that during the period an employee is on termination there is no consideration to justify paying the employee, as it would amount to unjust enrichment. 8. 14 Further, in the case of Kitwe City Council vs William Ng'uni 1 the Supreme Court held that it is unlawful to award a salary or pension benefits, for a period not worked for because such an award has not been earned and ought to be properly termed as unjust enrichment. 8.15 From where we stand, the finding and decision of the lower court to the effect that the appellant's claim was not tenable was founded on solid law. We accordingly hold that this ground of appeal is equally bereft of merit and it is dismissed. 8.16 Failure to cross examine In the eight and ninth grounds of appeal, the appellant's discomfort is that there was a failure by the learned trial Judge to cross examine both parties. We can only say that the appellant is at sea on the role of the court in the adversarial system of justice as it relates to the conduct of a trial. It is not the role of the judge to descend into the arena and start cross examining parties. The opposing parties must prepare their own cases and conduct cross-examination in order to produce J13 evidence that is beneficial to its side. The Judge functions as a moderator and should rarely take part in any questioning unless the Judge is seeking clarity on important points of law or the Judge decides on the facts of the case based on the evidence before him or her as well as points of law. A judge's task is to hold the scales of justice impartially and to see that justice is done. The Judge should be a neutral fact finder and therefore must remain uninvolved 1n the presentation of the arguments. 8.17 In light of what we have stated in the preceding paragraphs we find the eighth and ninth grounds of appeal to be devoid of merit and are dismissed accordingly. 8.18 Affidavit evidence The last ground of appeal is a complaint by the appellant that the learned Judge did not consider the affidavit evidence. We have combed through the impugned judgment and have found that in fact the trial judge heavily relied on the affidavit evidence that was presented before him to which he applied the law in determining the complaint. We note from the record that the respondents were not before court but their counsel Mr. E. Mutale of E. K Mutale and Co. was before court. For ease of reference, this is what transpired on the 11 th of October 2018 at page 214 of the record: Court I have seen what is on record, I propose to proceed by way of affidavit evidence. J14 Complainant: I am comfortable with that. Counsel for the respondent We accept the proposal. Court: In for today. Hearing date was set the circumstances, I shall allow the complainant time to file submissions. The complainant shall file his submissions by 13.00 hours on 12/10/2018. The respondent shall file their submissions by 14. 00 hours on 16/10/2018. Parties shall uplift judgment at 09.00 hours on 23/10/2018. Signed E. C Musona Judge 11/10/2018 8.19 The learned trial Judge did examine the affidavit e idence with the objective of resolving the dispute between the parties. Clearly, there was no objection to proceeding by way of affidavit evidence. The appellant indicated that he was comfortable. A court can proceed to deal with the matter based on affidavit evidence. Admittedly the downside to this process is that the affiant is not cross examined. That notwithstanding, an affidavi may be admitted for trial. A court's decision ultimately turns on th evidenc that 1s necessary and reliable to prove an issue. 8.20 The court below, after a thorough xamination of the affidavit evidence before it, proceeded to render a decision. We, therefore, see no basis upon which we can assail his findings. Jl5 This ground of appeal is therefore devoid of merit and 1s consequently dismissed. 9.0 CONCLUSION 9. 1 In sum, from our perspective all the ten grounds of appeal canvassed have been found to be unmeritorious and are consequently dismiss d. 9.2 We order that each party bears their own costs. F. M. Chishimba COURT OF APPEAL JUDGE ' .......... .._A~'~ ········ ········ B. M. Majula ....... C3, .................. . K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE