Chilanga Cement Ltd v Mwape (Appeal 138 of 2005) [2007] ZMSC 139 (13 December 2007)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 138 OF 2005 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: CHILANGA CEMENT PLC AND WILLIAM MWAPE - - APPELLANT RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Mushabati, JJS. On 17th May 2007 and 13th December, 2007. For the Appellant: Charles Siamutwa and Marito Sakala of Corpus For the Respondent: Ngenda Sipalo of Ngenda Chambers Legal Practitioners JUDGMENT Mushabati, JS., delivered the judgment of the Court. Cases referred to: 1. 2. Christopher Vs Ndola Line Company Ltd (1999) ZR. 172 Nyoni Vs Attorney General (2001) ZR. 65 Legislation referred to: Industrial Relation Act, Cap — R. 42 Supreme Court Act, Cap 25- S. 25 (l)(b)(i) This is an appeal against the judgment of the Industrial Relations Court in which the respondent was awarded the following reliefs: J 2 1. Reimbursement of his half salary and allowances which were withheld during his suspension from 10th May, 1999 to 18th August, 1999. 2. That he be re-introduced on the pay-roll and be paid all his basic salaries (excluding any fringe allowances) between the date of his purported dismissal, 18th August, 1999 to the date of the lower court judgment. The basic salary ordered to be paid to the respondent was that he received it on 18th August, 1999 which had since changed by way of annual increment to the date of the said judgment. 3. That the benefits under 1 and 2 be paid with interest at the short term bank deposit rate from the date of filing the complaint to the date of judgment and thereafter at the Bank of Zambia lending rate (from the date of the judgment 20th July, 2005) to the date of payment. In his complaint the respondent alleged unfair dismissal and unfair treatment and so claimed for reinstatement, salary arrears and compensation (damages) for unfair treatment and malicious falsehood and that he be sold the institutional house that he occupied. Prior to his dismissal the respondent was charged with dishonest conduct on which he was asked to exculpate himself. In his evidence the respondent stated that he worked for the appellant Company as a Sales Manager from 1995. At the time of his dismissal he had worked a total of eight years. His duties involved the sales of cement to corporate bodies and individuals, both on credit and cash. He was also in charge of dispatching cement to the appellant's clients. He could also approve the appointments of cement agents and purchase orders. He was answerable or reported to the Works Manager Administration J 3 and the Chief Marketing Manager. On 11th May, 1999 he received a suspension letter on allegations of malpractices. His name among others, appeared in the Post Newspaper of 20d1 May, 1999 connecting him to a K300million loss suffered by the appellant Company though no charge relating to the said missing amount was preferred against him. He was called by the Chief Security Officer a Mr Chibangula but he declined to discuss the matter with him. He was however, asked to write a statement on what he called "False issues". He denied the dishonesty charge preferred against him. Three specific allegations were made against him under the said charge. His case was heard on 18th August, 1999 and on 31st August, 1999 he received a dismissal letter. He unsuccessfully appealed against his dismissal to the General Manager. He contended that his appearance before the disciplinary committee was flawed because he was not furnished with all (records of) the evidence against him. He then decided to commence these court proceedings against the appellant Company. The appellant Company advanced no evidence in the court below and the judgment was based on the evidence as adduced by the respondent. In fact the respondent was not even cross-examined after the had given his evidence. The cross-examination was rescheduled for 22nd March, 2005 but the appellant's advocates failed to attend court on that day and so the matter was adjourned for judgment. The appellant filed three grounds of appeal which are as per amended memorandum of appeal and are as follows; 1. The Court below erred in law and in fact when it held that the Respondent had been unfairly treated and therefore unfairly dismissed, when the Respondent failed to demonstrate how he was unfairly treated and unfairly dismissed. J 4 2. The Court below misdirected itself in law and in fact when it ordered that in view of its finding that the Respondent was unfairly treated and therefore unfairly dismissed, the Respondent must be; (i) reimbursed half of his salary and allowances, which were withheld by the Appellant during his suspension from 10th May, 1999 to 18th August, 1999. (ii) Re-introduced on to the payroll of the Appellant and that he be paid all his basic salaries (excluding fringe allowances) between the date of his purported dismissal, 18th August, 1999 to the date of Judgment and that the basic salary ordered herein is that salary paid to the Respondent on 18th August, 1999, which salary has since changed by way of annual increments to the date of the said Judgment; (iii) Paid his benefits in (i) and (ii) above with interest at short term bank deposit rate from the date of the filing of his Complaint to the date of Judgment and that thereafter interest should be calculated at the Bank of Zambia lending rate from the date of the said Judgment to the date of payment; and that (iv) Costs be for the Respondent. 3. The Court below erred in law when it debarred the Appellant from taking part in the proceedings on grounds that the Appellant did not file a bundle of documents and that he did not cross examine the Respondent's witness. On the day of our hearing this appeal there was a notice of motion for leave to adduce and admit fresh evidence pursuant to Section 25 of the Supreme J 5 Court act, Cap. 25. The relevant provision of Section 25, under which the said application was being made is 25(1) (b) (i) which reads: On the hearing of an appeal in a civil matter, the Court- (b) may, if it thinks necessary or expedient in the interests of justice- 01 order the production of any document exhibit or other thing commended with the proceedings, the production of which appears to it necessary for the determination of the case. We declined to grant the application and promised to give our reasons in this judgment. As can be seen from the above provision of law the Court has a discretion to allow fresh evidence to be adduced into court if, in so doing, the interests of justice will be saved. However, before the court can admit such evidence certain conditions have to be satisfied. First and foremost that piece of evidence must have been in existence at the time the action was commenced. Secondly it could not be found even after a diligent search. We have no doubt the document the appellant was attempting to produce in this court did not meet the above test. The document in question was a resignation letter written by Ms. Chocho the former counsel who had the conduct of the matter, on behalf of the appellant. She attended the court hearing when the respondent gave his evidence but cross-examination could not be proceeded with because time had run out and so the matter was adjourned to 22nd March, 2005 on 23rd November, 2004. The break down in communication between the advocates, in then Messrs Corpus Globe now Corpus Legal Practitioners, was an internal matter. J 6 We did not deem it fit to allow the appellant to introduce fresh evidence in this matter because it was irrelevant in the matter and did not meet the required test. Perhaps this could have been used, if the application was one for setting aside judgment, in the court below and definitely not here. We now return to the main appeal. In support of the appellant's grounds of appeal the learned counsel filed written heads of argument and authorities which he supplemented with oral submission. On the third ground of appeal which was argued as the first ground of appeal he argued that the court below erred when it debarred the appellant from further participating in the proceedings because the adjournment was at the instance of the respondent. It was argued that in fact the court adjournment was made because time for cross-examination hand run out. He further said the matter was not determined on merit. On the bundle of documents it was the learned counsel's contention that the court below could have taken the bundle of documents filed by the respondent as agreed bundle of documents instead of using such failure by the appellant to debar them from the proceedings. It was further argued that the appellant was not given an opportunity to be heard. On the second ground of appeal, which was a combination of grounds 1 and 2, it was argued that the court below failed to establish the necessary facts for it to come to a conclusion that the respondent was unfairly treated and so he was not entitled to the judgment. The Counsel argued that the appellant company acted fairly and justly in the respondent's case, so unfair treatment and unfair dismissal did not arise. The respondent had committed a dismissible offence for which he exculpated himself. J 7 In reply the learned counsel for the respondent submitted that the case had four adjournments which were all necessitated by the appellant. On the last adjournment, on 22nd March, 2005 the appellants never gave any explanation for their absence. The respondent was accused of raising an invoice but the said invoice was not produced in court. The charges against him were also not proved. He urged the court to up-hold the lower court's judgment and to discuss the appeal. We have considered both the evidence on record written heads of argument and the submissions by both counsel. We find that some of the salient facts are not in dispute. One of them is that the respondent was charged with some dishonest conduct for which he was asked to exculpate himself but later dismissed. He testified in court but was not cross-examined. When he was due for cross-examination the counsel for the appellant did not attend. The appellant were debarred from continued participation in the proceedings because they failed to submit a bundle of documents. In fact the appellant never gave evidence in court. The main issue of determination is whether the respondent's termination of employment was unfair. We wish in the first instance to comment on the order debarring the appellants from participating in the proceedings. The order was made on 22nd March, 2005. The court said the adjournment for cross- examination was requested for by counsel for the appellant and because the appellants failed to attend court the respondent was allowed to close his case. The court made an observation that the appellants had failed to file a bundle of documents in accordance with the lower court's order directives. J 8 We have examined the record. On the adjournment, we observed at page 179 of the record that it was in fact the court that adjourned the matter, on its own its motion, because time had run out. Further, there is nowhere in the record where the court gave directives to the parties to file bundles of documents and this fact was acknowledged by Mr Sipalo, counsel for the respondent. We find that the below misdirected itself on these two issues. However, the appellant never took steps to have the said order set aside. Looking at the record we observed that three out of four adjournments were at the request of the appellant. On the fourth adjournment the appellant's counsel was present but never appeared on the return date for cross-examination. This to us, was indication that the appellants and their advocates were not serious with their defence of this action. Had the court properly directed itself, it would have still arrived at the same decision to proceed with the trial in the absence of the appellants. Had the appellants been serious with their defence, they would have, at least, applied, before the lower court, to have the order debarring them from attending the proceedings set aside but they did not do. On the findings by the lower court that the respondent was unfairly treated and dismissed, these were findings of fact which were supported by the evidence before it. The appellant's evidence remained unchallenged. As an appellant court we can rarely up-set a lower court's decision on findings of fact, unless they are not supported by the evidence on record. We are unable to set aside the findings of fact made by the court below because there is no basis for us to do so. We therefore, find no merit on the appeal against liabilities. The termination of the respondent's services was therefore unlawful. J 9 The lower court, having found for the respondent, ordered that he be paid his withheld half salary and allowances from 10th May, 1999 to 18th August, 1999. The appellant was further ordered to reinstate the respondent on the payroll with effect from 18th August, 1999 and the appellant was to be paid his salary up to the date of the judgment, now appealed against. The judgment was delivered on 20th July, 2005. This meant that the respondent was to be paid salaries for six years. The said amount attracted interest at the short term deposit rate from the date of the complaint to the date of the judgment and thereafter at the Bank of Zambia lending rate until the debt was to be paid. The court has not really given the basis why the respondent was entitled to six years salary. This court has laid down guidelines before on damages to be paid to an employee where the court finds that such employee was unlawfully dismissed and can not be reinstated. In Chintomfwa Vs Ndolalime Company Ltd (1) this court awarded the appellant damages equivalent to two years salary. In this case we awarded the said damages because we said the appellant's prospects of finding another job were almost none. In Jacob Nyoni Vs A. General (2) we said damages to be awarded, where there has been wrongful termination of employment, ranged from the notice period under the contract to the equivalent of two years salary. J 10 We have considered the circumstances of this case and we are satisfied that the respondent in this case was only entitled to 12 months salary for wrongful termination of his employment. The damages shall be worked at the rate of the last salary received by the respondent at the time of his dismissal. Interest shall be paid at the current short term deposit rate from the date of the complaint to the date of this judgment and thereafter it shall be calculated at current Bank lending rate until the whole amount shall be settled. The appellant having partially succeeded in his appeal we made no order as to costs. D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE