Darwin Kaluba v Johnson & Johnson Zambia Ltd (SCZ APPEAL NO. 25 OF 1998) [1998] ZMSC 115 (5 November 1998)

lN THE SUPREME COURT OF ZAMBIA BOLDEN AT KABWE. (Civil Jurisdiction) SCZ APPEAL NO. 25 OF 1998 DARWIN KALUBA APPELLANT AND JOHNSON & JOHNSON ZAMBIA LTD. RESPONDENT Coram: Sakata ADCJ, Chaila and Chirwa JJS. 12th August and . 5th November, 1998. For the Appellant Mr. I. C. T. Chali of Chali Chama & Co. For the Respondent, C. A. J. Chileshe of Llyd Johns and Collins with Mr. P. Matibini. Salata ADCJ delivered the Judgment of the Court. JUDGMENT Cases ref erred to: 1. 2. 3. Lloyds Bank Ltd V Bundy 1974 3 All England 757 page 765. Wilson Masauso Zulu V Avondale Housing Project. Ltd (1982) 172. Khalid Mohamed V The Attorney-General (1982) ZR 49 This is an appeal against a Judgment of the High Court dismissing the appellant's claim for:- (a} (b) ( c) a declaration that his purported resignation from the respondent company on 26th April, 1995 was induced by force and was therefore null and void; an order for his reinstatement in his employment with the respondent company without loss of benefits; damages for wrongful termination of employment together with interest thereof. The facts of the case are that the appellant was employed as Chief Executive of the respondent company. The circumstances leading to termination of services with his company centred on the minutes of a meeting of the Company's Directors allegedly held on 6 th January 1995, attended by a Mr. K. E. Nkhata, W. S . Mwanza and V. Mwewa as Secretary Mr. KE. Nkhata was appointed Chairman of the meeting At this meeting the Board is said to have agreed to guarantee a loan of K6. million for the appellant in favour of Standard Chartered Bank These minutes were allegedly signed by K. E. Nkhata as Chairman. Sometime in January 1995 · series of meetings were held in Harare, Zimbabwe between the appellant and the respondent's Regional Director, DW2. As a result of these meetings the appellant signed two letters of resignation prepared by OW2 both dated the same day. The resignation in both letters was with immediate effect. On the same day DW2 accepted the appellant's resignation by letter of the same date setting o ut the appellant's entitlements. The case for t he appellant was that t he meeting at which the Directors guaranteered K6 million loan was a properly constituted meeting chaired by·Mr. Nkhata. It was the appellant's case that his resignation was induced and forced on him by DW2 and t herefore wrongful, null and void. T here was evidence from DWI who signed the minutes that no Board meeting took place at w hich a resolutio n guaranteeing the appellant's loan was passed. He explained the circumstances under w hich he signed the minute. According to his evidence he did not attend any B oard meeting o n 6th January 1995 but recalled seeing a document o n that date. He admitted that the signature at the bottom of t he minute was his signature. He explained that the minute was brought to him by Mr. Mwewa t he Company Secretary who had also confirmed that there had been no meeting. DW l testified that he signed the minute under duress. DW2 conceded in his evidence that when the purpo rted guarantee of the loan was broug ht to his attention he informed the appellant that the obtaining of a guarantee t hroug h deceit when t here was no Board meeting was a misconduct which attracted summary dismissal. He t herefore advised t he appellant to choose between being dismissed and thereafter loosing all his terminal benefits or resigning and getting his tenninal benefits. He also conceded preparing the two letters of resignatio n signed by the appellant. The learned trial judge considereJ all the oral and documentary evidence before him including the pleadings. He examined the circumstances leading to the appellant's resignatio n. He found t hat under the circumstances of this case, there was no Board meeting and that the appellant's conduct of obtaining a g uarantee of his bank loan when there was no such Board meeting was a serious misconduct that the respondent company would have been entitled to dismiss the appelJant summarily. The court observed that if the appellant was then asked to resign in order to receive his benefit o r choose to be dismissed and chose to resign, he could not in those circumstances claim that he was induced into resigning by force. The court further noted that the respondent was considerate and that the choice to resign was made by t he appellant and that in those circumstances the choice was ho nourable. T he court concluded that the appellant' s resig nation was not induced by force as in any event the respondent was entitled to dismiss him summarily. In arguing this appeal Mr. Chafj advanced six grounds some of which were argued together. The short summary of the g rounds is that the learned trial judge erred when he held that the appellant's resignation could not be said to have been induced by force since no grounds for summary dismissal existed, that in consideratio n of his services he was told to resign to enable him receive his terminal benefits; that no ground existed at the time of the purported dismissal that would have entitled the respondent to summarily dismiss the appellant for the finding that the appellant obtained a company's Board resolution to guarantee his personal loan from the bank by deceit and falsehood; that no reasons were given for entering judgment in favour of the respondent in the absence of any credible evidence; and that the court failed to deal with the appellant's claim for wrongfully withholding his emoluments and entitlement to shares. In his submissions on ground one and two Mr. Chali conteded that from the evidence of the appellant and that of DW2, it is abundantly clear that there was indeed coercion resulting in the final decision by the appellant to sign the two letters of resignation Counsel pointed out that the length of time, that is three days of discussing the matter and the fact that two letters of resignation were authored by DW2 and the protest by the appellant clearly established that the appellant was induced by force to sign the letters of resignation. Counsel submitted that in these circumstances it could not be argued that the resignation was wilful irrespective of whether grounds existed independently upon which the respondent would have invoked its disciplinary power over the appellant Mr. Chali argued that the situation in the present case could be likened to a situation in which a more economically powerful person secures a contract on unfavourable terms to an uneconomically weak person. He cited the case of Lloyds Bank L td Vs B undy(t) regarding inequality in bargaining power. Counsel submitted that the fact that the appellant was being asked to resign in order to receive his benefits instead of being dismissed did not change or affect the nature of the resignation having been a forced one because it was like being asked to choose between two evils. He suggested that the court in this case should adopt the approach followed in criminal proceedings in relation to a confession statement which upon being proved that it was made under duress it is rejected. According to Mr. Chali whether the resignation was a better evil than dismissal was immaterial. In arguing grounds three and four Mr. Chali contended that in accepting DWl's evidence the court failed to consider what force or undue influence was used on him by the appellant before he signed the minute containing the guarantee and that the alleged offence of fraud had not been committed by the appellant. It was counsel's contention that there was no credible evidence that the conduct of the appellant was deceitful or false or that he had exercised undue influence on his subordinates. The gist of the argument on ground five was that the counter-claim had not been proved and should not have been allowed. On ground six the contention was that the court should have considered the benefits the appellant was entitled to even assuming that he had been properly summarily dismissed. It was counsel's contention that the appellant's entitlement as per letter of acceptance could not be withdrawn simply because the resignation had been challenged for having been under coercion. Counsel under his written heads of argument concluded his submissions by urging the court to uphold the appeal and hold that the resignation was null and void and that the purported summary dismmisal was wrongful and order reinstatment with full benefits or in the alternative, damages for wrongful dismissal. Mr. Chileshe did not file written heads of argument. The reason being that he received the appellant's heads of argument very late. In his oral submissions Mr. Chileshe explained that his understanding of the appellant's complaint before this court was that the appellant's original letter of resignation was coerced from him by inducement and that the court should find that that inducement was unlawful as the bargain to the transaction was unequal. Counsel submitted that taking the argument to its absurd and illogical conclusion the relative power was the same at the beginning of the employment and at the end. He contended that in these circumstances the balance of power had not changed. Counsel also argued that it could not be contended that because there were no valid grounds at the time of the resignation, the respondent could not be entitled to dismiss the appellant as it is trite law that an employer need not give reasons for terminating employment of an employee. Counsel submitted that on the balance of probabilities the court below found that sufficient grounds existed to justify dismmisal. He urged the court to uphold the trial judge. We have very anxiously considered the evidence on record, the submissions by both learned counsel and the judgment of the learned trial judge. We have deliberately taken some time to review the facts and the submissions simply to put our conclusion in its proper perspective on the facts. At the outset we wish to point out that although Mr. Chali put up spirited submissions, they all flew in the teeth of the evidence which could not be seriously disputed or challenged. The case for the appellant as pleaded highlights the meetings at Harare during the week beginning 23rd April, 1995 and the subsequent signing of the letters of resignation and receiving the letter of acceptance of the resignation Specifically paragraphs 7-8 of the statement of claim read as follows:- "7. 8. The plaintiff will rely upon the three letters referred to in the three last preceeding paragraphs for their full terms and effect. The plaintiff will say that in so far as the letters of purported resignation were signed by the plaintiff under duress, they are voidable or null and void and of no effect." The statement of claim is totally silent on the Board minute of 6th January J 995 which precipitated the appellant's resignation. The case for the respondent as pleaded in the defence while admitting the meetings in Harare highlights the minute. Paragraphs 2-4 of the defence and counter claim read: "2. The defendant admits paragraph 2 of the Statement of Claim and avers that the said meeting and the subsequent resignation were precipitated by the plaintiff's unsatisfactory/ work performance and the discovery of a fraudulent minute of the Board of Directors in favour of the plaintiff to guarantee a loan of K6,000,000.00 from Standard Chartered Bank of Zambia Limited. 3. The defendant admits paragraph 3 to 6 inclusive of the Statement of Claim and avers that arising from matters alluded to in the immediate preceding paragraph the defendant was entirely satisfied that because of the Plaintiffs conduct in relation to the fraudulent minute and other matters to which more detailed reference will be made at the trial instant dismissal was and is totally justified. Because the Plaintiff pleaded for lenience and out of humanitarian considerations he was given the opportunity to resign with certain benefits or be summarily dismmised. He chose the former. 4 . The Defendant will aver that the plaintiff resigned of his own free will and in " the full knowledge of what he was doing." In our view the genuiness of the Board Minute of the Directors in favour of the appellant's guarantee was very crucial to the appellant's case. In his evidence on oath the appellant explained that he found nothing wrong with the approval of the loan by the Directors of the Board. But in cross-examination he said there was no notice to convene the meeting and he did not attend the meeting. Mr. Nkhata, who is purported to have chaired the meeting; gave evidence for the defence. He denied attending any Board Meeting on 6th January, 1995 and testified that no meeting took place on that day and explained that he resisted to sign the document when Mr. Mwewa, the Board Secretary, took it to him. But at the insistence of Mr. Mwewa, Mr. Nkhata says he signed the minute. We take note that Mr. Mwewa was not called to give evidence for either side. But as was said in the case of Wilson Masauso Zulu V Avondale Housing P ro ject Ltd (2) " ...... it is accepted that where the plaintiff alleges that he has been wrongfully or unfairly dismissed as indeed in any other case where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to pr~ve his case cannot be entitled to judgement. Whatever may be said of the oponents's case". As we said in Khnlid Molrnmed V The Attorney-General (3) "Quite clearly a defendant in such circumstances would not even need a defence". Mr. Chali urges this court tofind that the resignation was induced by force because no grounds for summary dismissal existed. We are satisfied that once the court found that the minute was cooked, the appellant was liable to be fired. A request for him to resign in those circumstances regardless of the manner in which that request was conveyed, resignation was the most descent course of action to be taken by the appellant. We are very doubtful whether counsel was serious to contend that dismissal with loss of terminal benefits would have been a better evil in the circumstances of this case. We accept and we are satisfied that on the available evidence, the Board resolution guaranteeing the appellant's personal loan from the Bank was obtained by deceit and falsehood. Entering judgment in favour of the respondent was inevitable. This conclusion answers all the submissions ofMr. Chali based on the first five grounds. This appeal based on those grounds cannot succeed. The sixth and last ground of appeal was that the learned trial judge failed to deal with the appellant's claims for wrongfully with held emoluments and entitlement to shares in the respondent company. We do not understand the basis for this ground of appeal. We have very carefully examined the writ of summons, the statement of claim and the reply and the defence to the counter-claim. We have not found any claim pleaded based on wrongfully withheld emoluments and entitlement to the shares in the respondent's company. But if we understood Mr. Chali' s submissions, they appear to suggest that whatever the outcome of this appeal, the appellant's terminal benefits communicated to him upon signing the letters of resignation should not be withdrawn because of his challenge of the resignation based on coercion. Our short answer to all this, is that we are satisfied that the resignation was not induced by force and is not null and void. It follows that the mere fact that the appellant challenged that resignation cannot be the basis for denying him the terminal benefits he was entitled to and those set out in the letter accepting his resignation. This appeal is dismissed with costs to the respondent to be-taxed in default of agreement. E. L. Sakala, ACT1NG DEPUTY CHIEF JUSTICE. M. S. Chaila, SUPREME COURT .fUDG'E. .............................................. D. K. Chirwa, SUPREME COURT JUDGE.