Clement Chilufya Kangwa v Kamanga (Appeal 58 of 2002) [2004] ZMSC 13 (4 February 2004)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE APPEAL NO. 58 OF 2002 (CIVIL JURISDICTION) BETWEEN: (cid:9) CLEMENT CHILUFYA KANGWA 1" APPELLANT RODGER MUCHANGA SOIVIBE (cid:9) 2" APPELLANT IMASIKU ARNOLD KALALUICA (cid:9) 3" APELLANT AND EDSON KAMANGA & OTHERS (cid:9) RESPONDENTS Comm: (cid:9) Chinva, Mambilima and Silomba Ifs on gr Apr14 2003 and 4th February, 2004. For the Appellant: Mr F Kongwa, Kongwa & Company For the Respondents: (cid:9) Mr W. Banda, Watae Banda & Company JUDGMENT Chirwa, JS delivered judgment of the Court:- This is an appeal from the decision of the High Court in which it awarded the eight (8) respondents redundancy package in terms of Sections 26B of the Employment Act and Statutory Instrument No. 119 of 1987. The action proceeded to trial on the basis of what the parties thought were agreed facts. In arguing the appeal, there were 4 grounds of appeal supported by detailed written heads of argument. (cid:9) The respondents also filed detailed heads of argument. In view of the stand we take in this matter, we do not intend to go through the grounds of appeal and their written heads of argument. J2 We have looked at the purported Amended Statement of Agreed facts for trial contained in the record from page 39 to 52. Going through these, it is clear that there were no agreed facts. If they were agreed facts, what was the joint issue (s) to be decided by the Court? There are serious issues raised that were never determined by the Court below. The facts as presented show that there were many employers under whom the respondents served. The trial was aborted on the understanding that there would be agreed facts on which the Court would make its findings. As we have said, the facts as presented are not agreed. There was, therefore, need to have the evidence from defendants (now appellants). Under the circumstances, therefore, we allow the appeal and we order a retrial where issues of employers may properly be determined on evidence. Costs will follow the results of retrial. D K Chirwa JUDGE OF THE SUPREME COURT I C Mambilima JUDGE OF THE SUPREME COURT S S Silomba JUDGE OF THE SUPREME COURT