Collins Kayombo v Chat Breweries Limited and 2 Ors [2019] ZMCA 358 (7 March 2019)

Ji IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 97/2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: APPEAL (cid:9) _N~ COLLINS KAYOMBO APPELLANT AND CHAT BREWERIES LIMITED GOODWARD MULUBWA BRIAN MULUBWA 1 STRESPONDENT 2NDRESPONDENT 3RESPONDENT CO RAM: MAKUNGU, LENGALENGA AND NGULUBE, JJA. On 23rd January and 7th March, 2019. For the Appellant: In person. For the Respondent: M Haimbe, Messrs Sinkamba Legal Practitioners. JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Khalid Mohammed vs Attorney General (1982) ZR 49. 2. Minister of Home Affairs and Attorney-General vs Lee Habasonda (200 7)ZR 207. 3. Konkola Copper Mines PLC vs Jacobus Keune, Appeal Number 29 of 2005. 4. Zambia Telecommunication Company Limited us Aaron Mulwanda and Paul Ngaridwe (2012) 1 ZR 405 (SC). 5. Chilanga Cement vs Kasote Singogo, (2009) ZR 22. 6. Kitwe City Council vs William Nguni (2005) ZR 57(S. C). (cid:9) (cid:9) (cid:9) (cid:9) J2 This appeal is from a Judgment of the High Court delivered on 9th April, 2018, which followed an action brought by the appellant by way of writ of summons claiming the following reliefs: 1. Payment of twenty-seven months of unpaid housing allowance arrears at one thousand kwacha per month; 2. Payment of accrued leave days calculated at two days per month for each year served in the total sum of K26,400=00; 3. Payment of unpaid twenty-seven months' salary arrears at three thousand kwacha per month amounting to K8 1,000; 4. Payment of outstanding separation package benefits in the sum of K66,000=00; 5. Compensation for mental torture and anguish caused to the plaintiff due to delay in payment of his dues amounting to K200,000=00, to be assessed; 6. Damages; 7. Interest and costs. The appellant's case was that he was employed by the 1st respondent on 25th May, 2004 as a dispatch supervisor, on a monthly salary of J3 three thousand kwacha and housing allowance of one thousand kwacha per month. The appellant averred that on the 16th of December, 2014, the 1st, 2nd and 3rd respondents sent him away from work without giving him a letter of separation as well as a termination package. He commenced an action seeking a separation package for the eleven years he served, which was two months' salary for every completed year of service amounting to sixty-six thousand kwacha. He also claimed unpaid housing allowance arrears for twenty-seven months, worth twenty- seven thousand kwacha, leave days for the eleven years of service worth twenty-six thousand four hundred kwacha and unpaid salary arrears for twenty-seven months amounting to twenty-seven thousand kwacha, with interest and costs. The respondents filed a defence in which they averred that the appellant was an employee of the 1st respondent and not the 2' and 3rd respondents. It was further averred that the appellant was paid all his dues and was not entitled to any of the claims in the statement of claim. J4 The plaintiff attended trial but the respondents did not. The Court, upon being satisfied that the respondents were aware of the trial date, proceeded to hear the matter. In support of his evidence, the appellant gave oral evidence before the lower Court. The gist of his testimony was that he was employed by the 1st respondent on 25th May, 2004 as a dispatch supervisor and that his basic salary at the time was two thousand one hundred kwacha. He stated that he was not given any payslips during the time he was employed. His salary was increased to three thousand kwacha in August, 2013. He continued working until 16th December, 2014, when the management of the 1st respondent stopped him and his co- workers from working because beer sales were low. He was told that he would be recalled but this did not happen. The Court found that there was no evidence to support the appellant's claims and dismissed the case for lack of merit. The appellant has advanced the following grounds of appeal - 1. (cid:9) That the Court below erred in law and fact when it failed or neglected to consider evidence on record such as the letter of confirmation of is appointment that was written to the appellant by the Human Resource Manager. 2. That the lower Court misdirected itself in law and fact when it delivered a Judgment contrary to the evidence on record. 3. That the lower Court misdirected itself by failing to appreciate proceedings under Cause Number 2016/HP/0490 and that the same would have aided the Court in delivering the Judgment herein; 4. That the lower Court misdirected itself in law and fact when it failed or neglected to evaluate the evidence on record as well as the submissions before it. 5. That the lower Court misdirected itself by abdicating its duty when it said that the plaintiff had failed to prove his case on a balance of probabilities. The appellant argued all the grounds together as they are interrelated. He submitted that it is not in dispute that the appellant worked for the three respondents at the third respondent's brewery. The lower Court's Judgment was misconceived as there was overwhelming evidence on record that the appellant worked for the 1 St respondent as contained on page 31 of the record of appeal, where a letter that was written by the 1st respondent's human resources manager, a Mr. J6 K Mulundamina, was exhibited. It was contended that the learned High Court Judge did not consider the evidence on record. The appellant referred to the case of Kha lid Mohammed vs Attorney Genera 11on the plaintiff having proved his case for him to be entitled to a favourable Judgment. We were further referred to the case of the Minister of Home Affairs and Attorney-General vs Lee Habasonda2 where the Court stated that- "We must however state for the benefit of trial courts that every Judgment must reveal a review of the evidence where applicable, summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any on the facts." The appellant submitted that failure by the Court to properly analyse or review the evidence adduced before it is fatal to the ensuing Judgment. The appellant contended that the Court of Appeal has the power to reverse findings of fact that are either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or were findings which, on a proper view of the evidence, no J7 trial Court acting correctly could reasonably make. The appellant prayed for the reversal of the lower Court's Judgment with costs to him. The respondents filed heads of argument on the 23rd of January, 2019. Responding to grounds one to five, it was submitted that the lower Court was on firm ground when it dismissed the appellant's case. Counsel referred to page 13, lines 21-25 of the record, where the Court stated that- "In the case before me, I have been given little or no evidence to support the plaintiffs claim. As I earlier noted, he who alleges must prove and it is therefore for the plaintiff to prove his claim on a balance of probability even if the defendant gave no evidence. The plaintiff before me has failed to prove his case on a balance of probability. I would have no basis to grant to plaintiffs claim because I would be engaged in inspired guessing." Counsel submitted that the Court rightly arrived at the conclusion that there was no evidence to support the plaintiff's claim. It was contended that the appellant provided the Court with insufficient evidence to sustain the suit. J8 It was contended that the appellant started working at Chat Breweries on 25th May, 2004 but no evidence was led to prove that he was employed by the 2nd and 3rd respondents. Counsel accordingly prayed that the appeal be dismissed. We have considered the judgment, the Record of Appeal, the heads of argument and submissions filed by both parties. We shall begin by addressing ground one and two and three as they are interrelated. The evidence on record is that the appellant was employed by the Is, respondent on 25th May, 2004, as a dispatch supervisor and that his salary was two thousand kwacha per month. The appellant testified in the lower Court that his salary was increased to three thousand kwacha in August, 2013 and he continued working until 161 December, 2014, when he was asked to stop reporting for work due to poor beer sales. A letter of confirmation that was written to the appellant by the 1st respondent's Human Resources Manager dated 3rd May, 2013 confirms that the appellant was employed by the Pt respondent as a dispatch supervisor at a salary of three thousand kwacha. J9 In our view, the lower Court should have accepted the appellant's evidence, which was not disputed by the respondents, that he was employed as a dispatch officer on 25th May, 2004, a position which the respondents' Counsel admitted in his submissions. It is therefore not in dispute that the appellant was in the employ of the 1st respondent until 16th December, 2014 when he was asked to stop reporting for work. In the case of Konkola Copper Mines PLC vs Jacobus Keune,3 the Court held that- "This Is a proper case in which the appellate Court can set aside findings of fact based on a misapprehension of facts, in that it was a finding which, on a proper view of the evidence, no trial Court acting correctly could reasonably make." We take the view that the lower Court misdirected itself when it found no evidence supporting the plaintiff's claim because there was unchallenged evidence on record that the appellant worked for the 1st respondent from 25th May, 2004 to 16th December, 2014. The appellant further testified that his salary at termination of employment was three thousand kwacha, a position the 1st J10 respondent did not deny. We accordingly set aside the lower Court's finding of fact, that there was no evidence to support the plaintiff's claim. Accordingly, grounds one, two and three of the appeal have merit and they succeed. The gist of the appellant's arguments in support of grounds four and five is that there is no indication in the judgment, as to how the Judge considered the evidence, authorities and submissions that were raised by the appellant and how the judgment was arrived at. Having considered the lower Court's Judgment, we are of the view that the learned trial Judge did not make findings of fact according to the evidence before him. Although there is no written contract of employment on record, we do not doubt the fact that there was a verbal contract of employment between the appellant and the respondent. It is settled law that a contract of employment can be lawfully terminated by either giving the contractual period of notice or paying a salary or salaries in lieu of notice as provided for orally or in writing in the contract of employment or the reasonable notice period of notice if not expressly provided for. The case of Chilanga Cement vs Kasote Singogo,5 refers. ill In this particular case, no notice of termination was given and therefore the termination was wrongful. Further, in the case of Zambia Telecommunication Company Limited vs Aaron Muiwanda and Paul Ngandwe4 the Supreme Court held that- A judgment should contain seven essential elements, these being - 1. An introductory structure setting forth the nature of the case; 2. The facts; 3. The law relevant to the issues; 4. The application of the law to the facts; 5. The remedies and 6. The order. It is our considered view that in casu, the learned trial Judge did not analyse the evidence before him nor did he reveal his reasoning in dismissing the appellant's claims. The Judgment did not meet the benchmarks set in the above authority. We find merit in grounds four and five and they succeed. We therefore enter Judgment for the appellant for the recovery of sum of twenty-seven thousand kwacha for the unpaid housing allowance arrears at one thousand kwacha per month, and twenty-six thousand J12 four hundred kwacha for accrued leave days at two days per month for each year served. We also enter judgment for unpaid salary arrears at three thousand kwacha per month, which shall be assessed by the Deputy Registrar. In the case of Kitwe City Council vs William Nguni6 the Supreme Court held that- "You cannot award a salary or pension benefits, for that matter, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment." On the strength of the Nguni case, the appellant's claims regarding salary arrears will be assessed by the Deputy Registrar because we note that the appellant was sent away by the 1st respondent and did not work for some months before his contract was terminated. For the period that he was not working, the appellant is not entitled to payment of any emoluments as that would amount to unjust enrichment. For wrongful dismissal and the mental distress and trauma that the appellant suffered when the 1st respondent terminated his J13 employment abruptly, we award the appellant six months' salary and perquisites as compensation. We further award the appellant interest on all the moneys due at short term Commercial Bank rate from the date of writ to the date of Judgment and thereafter at the current lending rate as determined by the Bank of Zambia. Costs are awarded to the appellant, to be taxed in default of agreement. C. K. MAKUNU COURT OF APPEAL JUDGE F. M. LENGALE (cid:9) COURT OF APPEAL JUDGE (cid:9) P. C. M. NGULUBE COURT OF APPEAL JUDG 1