Duly Motors (Z) Limited v Charity Namwela Mbando (APPEAL NO. 216/2000; SCZ/8/182/200) [2001] ZMSC 163 (6 December 2001)

IN THE SUPREME COURT FOR ZAMBIA SCZ/8/182/2000 HOLDEN IN NDOLA (Civil Jurisdiction) BETWEEN APPEAL NO. 216/2000 DULY MOTORS (Z) LIMITED APPELLANT AND CHARITY NAMWELA MBANDO RESPONDENT CORAM: NGULUBE 0, CHAILA JS, MAMBILIMA AJS. On 5th June, 2001 and 6th December, 2001 at Ndola. For the Appellant Mr. K. Msoni of J. B. Sakala & Company. For the Respondent Mr. W. Mwale of Mwale Musonda and Associates. JUDGMENT Mambilima, AJS delivered the Judgment of the Court. Authorities referred to: (1) Cheshire & Fifoot's Law of Contract 1th Edition Page 37. (2) Halsbury's Laws of England 4th Edition Page 226. (3) [1922] 1 WWR 419. Legislation referred to: (1) Section 26 B(3} of the Employment (Amendment) Act No. 15 of 1997, (2) Order 35, Rule 3 of the High Court Act, Cap 27 of the Laws of Zambia. The panel heard that this appeal included out later brother Justice CHAILA. This Judgment should therefore be taken as a Judgment of the majority of the panel. This is an appeal from a decision of the High Court (Sakala J) in favour of the Respondent. In the Judgment, the Appellant was ordered to sell House No. 6 Fitente Road, Kasenshi, Ndola, to the Respondent at the price of K27 million. The Court also ordered that the Respondent should be paid her terminal dues with interest with effect from 17th July, 1996 and her monthly salary with effect from the said date of 1ih July, 1996 up to the date that her whole redundancy package would be paid; pursuant to Section 268 (3) of the Zambia (Amendment) Act No. 15 of 1997 (1) Before the lower Court, the Respondent had sought a declaration that as a person who had worked for the Appellant until she was declared redundant in July 1996, she should be granted an order to purchase the house she was living in, which was the property for the Appellant. She also sought payment to her of her terminal benefits, with interest at bank rate and costs. The undisputed facts which were before the lower court were that the Respondent had been an employee of the Appellant from 18th February 1974 until she was declared redundant on 1ih July, 1996. According to the letter which conveyed the redundancy message, she was to be paid her dues in accordance with the redundancy package of the terms of her employment. In the course of her employment, the Respondent occupied House No. 6 Fitente Road in Ndola. She applied to purchase this House as a sitting tenant. The Appellant offered her the House at K40 million and in reply she made a counter offer of K20 million. According to her evidence, the basis of her counter offer of K20 million was because similar houses which belonged to the Appellant were being sold for K12 million in 1994. The Appellant also testified that she sought the services of a Valuer, N. Jere Property consultancy Services, who valued the house at K27 million. During her testimony, the Respondent referred to an Amendment to the Employment Act of 1997 which obliged an employer who declares an employee redundant to pay that employee a salary up to the time redundancy benefits are paid. Since her redundancy package had not been paid up to the time of this litigation, the Respondent applied to the court for order that she be paid her salary from the date that she was declared redundant up to the date when she will be paid her terminal benefits. She further asked the Court that this salary, together with her terminal benefits should go towards the purchase of the house in question. The Appellant has now appealed to this court advancing three grounds of appeal, namely; that the Learned Judge erred in law and in fact when he held that the Respondent had proved her claims against the Appellant and made an order that she was entitled to purchase the house at No. 6 Fitente Road at a price of K27 million merely by virtue of the fact that she was declared redundant from the Defendant's employment in July, 1996. Under this ground, the Appellant argues that the Respondent was given a first option to purchase the house at K40 million. Instead of accepting the offer, she made a counter offer to buy a house at K20 million on 19th February, 1998. Counsel for the Appellant submits that the effect of this counter offer in law was the rejection of the original offer. Relying on the Learned Authors Cheshire and Fifoot Law of Contract he submits that in order to create a binding contract, the offeree must unreservedly assent to the exact terms proposed by the offerer. On the valuation relied upon by the Respondent, Counsel submits that there was no valuation report before the court except for a letter from one Valuation firm unilaterally appointed by the Respondent. According to the Learned Counsel for the Appellant, the court below fell into a serious error on a point of fact which should invite this court to interfere. In the second ground of appeal, the Appellant argues that the Learned Trial Judge erred in law and fact when he held that the Respondent was entitled to the payment of monthly salary with effect from 1ih July, 1996 up to the date that her terminal benefits will be paid pursuant to Section 26B(3) of the Employment (Amendment) Act of 1997. Under this ground of appeal, Couse! for the Appellant points out that while the Respondent was declared redundant in July, 1996, the legislation in question came into effect in November, 1997. He argues that this law has no retrospective effect and cannot therefore be applied to the Respondent. The last ground of appeal states that the Learned Trial Judge erred in law and fact when he refused to set aside or to review his Judgment of 1st June, 2000, which was determined in the absence of the Appellant or its legal Representative. It is urged under this ground that the Appellant was not given an opportunity to present its case at the trial. After the Respondent closed her case, the court adjourned the case for Judgment without giving notice to the Appellant. The Court rejected the Appellant's application for review. According to the Appellant, this decision was unfair because sufficient reasons and fresh evidence to warrant a review to set aside of the Judgment were presented to the court. In reply to the first ground of appeal, Counsel for the Respondent submits that the claim to buy the house at No. 6 Fitente Road Ndola was specifically pleaded by the Respondent in both the Writ of Summons and the Statement of claim. This claim in the Writ of Summons and the Statement of Claim as well as her evidence in court was not challenged by the Appellant. According to Counsel, it cannot therefore now be argued that there was no basis upon which the trial Court decided to order that the Respondent should purchase the property at K27 million. On the second ground of appeal, that the court erred to order that the Respondent be paid a salary from July, 1996 up to the date that her dues would be paid pursuant to Act 15 of July, 1997, the Counsel concedes that since the statute in question had no retrospective effect, the portion of the Judgment that the Respondent be paid her salary from 1ih July, 1996, is not in line with the law. He however submits that this portion should substituted with an order that the Respondent should be paid her salary with effect from 14h November, 1997 when the said Act came into force since the Respondent had not been paid her redundancy package by that date and still remains unpaid up to now. On the third ground of appeal that the court erred when it refused the Appellant's application to review or set aside the Judgment, Counsel for the Respondent submits that the Appellant and its Counsel failed to attend court on two occasions when the matter came up for hearing. On the second hearing an Agent who attended on behalf of the Appellant was informed that the matter was being adjourned for the last time to 21st March, 2000. On the appointed day, no one was in attendance on behalf of the Appellant and there was no explanation for the absence. Relying in Order 35, Rule 3 of the High Court Act, Counsel submits that the court exercised its discretion to proceed with the hearing of the matter in the absence of the Defendant. We have considered the grounds of appeal and the submissions of the Counsels. The first ground of appeal, attacks the Order of the court that the Appellant should sell House No. 6 Fitente Road, Kansenshi Ndola to the Respondent at 1<27 million. The issue to be determined was whether the parties had entered into a binding contract or agreement with ascertainable terms which the court could enforce. Elementary principles of contract in such situations require that there be definite offer by one party and an acceptance of that offer by a party to whom it is made. As Halsbury's Laws of England put it; "Agreement is usually reached by the process of offer and acceptance and, where this is so, the law requires that there be an offer on ascertainable terms which receives an unqualified acceptance from the person to whom it is made". This is echoed by the Learned authors of Cheshire and Fifoot's Law of contract to whom we have been referred by the Learned Counsel for the Appellant when they state that '~The offeree must unreservedly assent to the exact terms proposed by the offeror." It is clear from the facts which were before the lower court that the Appellant's offer of the house to the Respondent at K40 million was not accepted. The Respondent made a counter offer to buy the house at K20 million which was not accepted by the Appellant. The price of K27 million imposed by the court did not feature in dealings between the Parties. By Ordering the Appellant to seel the house to the Respondent at K27 million, the court was creating new terms and imposing them on the Parties, which is contrary to the applicable principles of Law. In our view, this was a serious misdirection and an error on the part of the Learned Trial Judge. On the second ground that the Learned Trial Judge erred in law and in fact when he held that the Respondent was entitled the payment of her monthly salary from lih July, 1996 up to the date when her terminal dues would be paid, we find that the piece of legislation pursuant to which the Judge made this Order was not enacted at that time. It is common cause that this Law, which came into operation by way of amendment to the Employment Act took effect in November, 1997. The Learned Counsel for the Respondent points out that the law was meant to cure a mischief whereby an employer would terminate an employee's employment through redundancy without promptly paying the redundancy benefits. As a general rule, legislation when passed does not have retrospective effect specifically provided. This includes amendments to existing laws. This was aptly stated in the Canadian case of Hopfe vs Canadian Pacific Ry CO (3) when it held that:~ "It is a general rue that where a statute is passed altering the substantive law, it applied to a state of facts coming into force after the Act, unless the language of the Act is expressly to the contrary. We have looked at Act No. 15 of 1997. It has no provision that it will operate retrospectively. The Learned Counsel for the Respodent has properly conceded on this point. He submits however that the Order to pay the Respondent her monthly salary should take effect from November, 1997 since todate the Respondent's dues still remain unpaid. In our view, this position is untenable in law. The facts applicable to the Respondent came into force before the law was amended. The enactment cannot therefore apply to her. On the last ground of appeal that the Learned Trial Judge was in error when he refused to review or set aside his Judgment on the application of the Appellant, the record shows that when the matter came up for hearing before the court on 4th November, 1999, there was in attendance, a Counsel standing in for the Appellant's Counsel and the matter was adjourned to 21st March, 2000. On that day, Defendants were absent without any explanation and the Learned Judge proceeded to hear the Respondent's case and adjourned the matter for Judgment. It is competent for a court to proceed to hear a matter in the absence of a party under Order 35, Rule 3 of the High Court Rules (2). "If the Plaintiff appears, and the Defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the Court may, upon proof of service of notice of trial, proceed to hear the cause and give Judgment on the evidence adduced by the Plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the Defendant." The Appellant applied to review or set aside the Judgment citing lack of communication with her Advocates. In our view, such house keeping matters between clients and their Advocates should not derail litigation. If in the process, a client feels to have been let down by their Advocate and as a consequence, suffers damage, it is up to that client to make issue with the Advocates and even challenge the Advocate's professional handling of the matter. The Appellant's record of appearance before the lower court left a lot to be desired, and it is such laxity which has contributed to delay and backlog in our courts. This ground of appeal cannot succeed. From the foregoing, the Appellant's appeal in the main succeeds. The portion of the Judgment to the effect that the Respondent be paid her terminal dues up to 1ih July, 1996 with interest remain undisturbed. Costs in this court and in the court below shall be for the Appellant. Hon. Ngulube M. M. Chief Justice HON. Chaila M. S. Supreme Court Judge Hon. Mambilima I C Ag/Supreme Court Judge 11