EDWELL MAKUNGA SINKALA v TROPICS LIMITED (CAZ APPEAL NO. 72 of 2018) [2019] ZMCA 316 (21 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NQ 72 OF 2018 BETWEEN: (cid:9) EDWELL MAKUNGA SINKALA AND iMJC OF 2 AUG 2019 REGISTRY JO0637, I.. USJ APPELLANT TROPICS LIMITED RESPONDENT CORAM: Chishimba, Lengalenga and Siavwapa, JJA On 21st November, 2018 and 21st August, 2019. For the Appellant: (cid:9) In person For the Respondent: Mr. S. A. G. Twumasi - Messrs Kitwe Chambers JUDGMENT LENGALENGA, JA delivered the Judgment of the Court. Cases referred to: 1. DAVID ROSS v G4S SECURE SOLUTIONS (ZAMBIA) - CAZ/08/012/2016 2. AMIRAN LIMITED v ROBERT BONES - SCZ APPEAL N2 42 OF 3. WILHElM ROMAN v ATTORNEY GENERAL (1994) SJ 76 (SC) ii 4. ASSOCIATED CHEMICALS LTD v DELAMAIN (ZAMBIA) LTD & ANOR (1998) ZR 9 S. WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD (1982) ZR 172 Legislature referred to: 1. THE INDUSTRIAL AND LABOUR RELATIONS ACT - Chapter 269 of the Laws of Zambia. 2. THE COURT OF APPEAL RULES 1.0 INTRODUCTION 1.1 (cid:9) This is an appeal against the judgment dated 5th March, 2018 delivered by Judge E. L. Musona of High Court, Industrial Relations Division. 2.0 BACKGROUND 2.1 (cid:9) The background of this appeal is that the Appellant, filed a complaint against his former employer, the Respondent herein, in the Court below, claiming the following reliefs: (1) Compensation for damages for loss of employment (2) Payment of terminal benefits (3) Payment of lunch allowance (4) Costs (5) (6) Any other dues the Court may deem fit. Interest (cid:9) (cid:9) J2 2.2 According to the evidence on record, the Appellant was employed as a Junior Stores Clerk on 6th January, 1984, and thereafter sometime between 1989 and 1990, he left the Respondent company to work for Hong Kong Restaurant up to June, 2007. 2.3 The Respondent's witness, RW1 Gillian Enotiades testified to the effect that the Appellant was paid all his dues when he left the Respondent company according to the records. 2.4 In June 2007 according to RW2, Spyros Enotiades, the Appellant went back to the Respondent company to beg for employment at Arthol Limited where RW2 is a director. Since there was no vacancy at that company, the Appellant was employed at Rojack Transport Limited as a Book-keeper from July, 2007 to 2012 when that company was closed. 2.5 From May, 2012 up to 3rd February, 2017 when the Appellant was dismissed he worked for the Respondent company. The evidence on record further indicates that by a letter dated 30th December, 2016 authored by RW1, as Director of the j3 Respondent company, the Appellant was suspended without pay on allegations of poor work performance. 2.6 There was a dispute that arose as to who was liable in this case because the Appellant changed jobs. 3.0 FINDINGS BY THE COURT BELOW 3.1 After analyzing the evidence, the trial judge satisfied himself from the evidence before him, that when the Appellant left the Respondent company between 1989/1990, he was paid all his dues. He found that, therefore, the Appellant had no claim against the Respondent for the period up to 1989/1990. 3.2 The learned trial judge further found that when the Appellant went to work for Rojack Transport from July, 2007 up to May, 2012, he was on a new contract that created a fresh employment relationship that was unrelated to the contractual relationship that existed between the Appellant and the Respondent prior to 1989/1990 when he left the Respondent company. 3.3 (cid:9) The learned trial judge further satisfied himself that there was a relationship between Rojack Transport and the Respondent (cid:9) J4 company, arising from which the Appellant was employed to work for both companies. This was based on his observations that when the Appellant applied for commutation of leave days, the payment was jointly paid by both companies, and that PW2 wrote a letter of confirmation to the Manager at Barclays Bank Zambia Limited, that the Appellant was a full time employee of Rojack Transport, Tropics Limited and Demither (Z) Limited. 3.4 From the said observations, the learned trial judge concluded that the Appellant was the Respondent's employee from July, 2012 to 3rd February, 2017. 4.0 (cid:9) DECISION BY THE COURT BELOW 4.1 After considering the evidence in relation to the reliefs sought by the Appellant, the learned trial judge declined to grant them as he found the claims to be devoid of merit for the reasons he outlined in the judgment on record. 5.0 GROUNDS OF APPEAL 5.1 The Appellant being dissatisfied with the judgment of Mr. Justice E. L. Niusona, now appeals against the said judgment and he has advanced the following grounds of appeal: J5 1. The Court erred in law and fact when it did not consider that I was working under one umbrella meaning Tropics Ltd, Hong Kong Restaurant Ltd and Rojack Transport companies were being run by one management. 2. The Court erred by not considering that the transfers were being necessitated by the same management. 3. That the same management brought me back to Tropics Ltd until I was wrongfully dismissed by the same management. 4. There were no fresh contractual agreement between the Respondent and myself, the Appellant, entered into at the time of coming back to Tropics Ltd. 5. That the relationship between Tropics Ltd and Rojack Transport still exist as sister companies. 6. The Court below erred in law and fact when it adjudged that I was paid my dues when I left Tropics Ltd. There is no exhibit shown to the honourable Court that indeed I was paid my dues as proof of payment. But the truth of the matter is that, I was not paid any terminal benefit or dues. 7. The Court below clearly mentions on page 6 of the judgment on second paragraph that there was some relationship between Rojack Transport and Tropics Ltd. But the Court has failed to mention that since there was some relationship; it was very easy to transfer me to Hong Kong Restaurant as well as to Rojack Transport Company, since they were sister companies. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 (cid:9) The Appellant filed heads of argument that he relied on. J6 6.2 The gist of the Appellant's argument in support of grounds one, two and three is that contrary to what the trial judge stated at page 10 and line 5 of the record of appeal that he was poached by Hong Kong Restaurant but transferred there since it was a sister company being run by the same management. 6.3 He submitted that the Court below erred in law and fact when it did not consider that the document exhibited as "EMS6" at page 26 of the record of appeal, was shown to him by Mrs. Anita Kinnear, the General Manager of both the Respondent company and Hong Kong Restaurant, was cited or used as the reason for transferring him temporarily to Hong Kong Restaurant in October, 1995. He argued that he was promised that he would go back to the Respondent company as soon as a suitable replacement was found to do the book-keeping at Hong Kong Restaurant. By a copy of a letter addressed to the Director of Hong Kong Restaurant Ltd, she was informed that it was a requirement under the Company's Act that all companies must maintain the following books: (i) Cash books to record bank and cash transactions; J7 (ii) (iii) Wages book. Sales day and purchase day books, and 6.4 The Appellant further submitted that he was taken back to the Respondent company only to be wrongfully dismissed later. He alleged that he was not formally charged and that no Disciplinary Code procedures were conducted or followed and as such the allegations against him have never been proved by the Respondent. 6.5 (cid:9) In support of grounds four and five, the Appellant argued that he made no fresh job application to Rojack Transport and that there was no new or fresh contractual agreement between himself and the named company in 2007 that was unrelated to the one that existed prior to 1989/1990. He said that there were no job interviews to determine his competence for the job. 6.6 With regard to ground six, the Appellant argued that contrary to what the Court below stated at page 11 and line 15 of the record of appeal, that he was paid all his dues when he was transferred to Hong Kong Restaurant, no payments were made J8 to him. He submitted that there was no exhibit shown to the Court to prove that he was paid his dues. 6.7 With regard to ground seven, the Appellant submitted that the Court below, at page 12 lines 5 to 6 of the record of appeal, acknowledged that there was some relationship between Rojack Transport and Tropics Ltd. He, however, argued that what the Court below failed to mention was that since there was some relationship, it was very easy to transfer him to Hong Kong Restaurant as well as to Rojack Transport Company since they were sister companies. 7.0 ARGUMENTS IN OPPOSITION TO THE APPEAL 7.1 Respondent's heads of argument were filed into court in response to the Appellant's heads of argument. 7.2 In response to ground one, it is contended and submitted that the Court below considered and found as a fact that there was some relationship between Rojack Transport and Tropics Ltd and that ground one attacks findings of fact which is not permitted at law on appeal. J9 7.3 It was submitted that section 97 of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia, states that: "Any person aggrieved by any award, declaration, decision or judgment of the Court may appeal to the Supreme Court on any point of law or any point of mixed law and fact." 7.4 The Respondent relied on the case of DAVID ROSS v G4S SECURE SOLUTIONS (ZAMBIA) LTD' in which this Court interpreted the foregoing provision at page R14 as follows: "Pursuant to section 4 of the Court of Appeal Act, this Court has competent jurisdiction to hear appeals from judgments of the High Court. This 2nd September, 2016 when this entails that after Court started operating, all appeals from the Industrial Relations Court (as a division of the High Court) are supposed to come to this Court." 7.5 Further reliance was placed on the case of AMIRAN LIMITED v ROBERT BONES2 where the Supreme Court held inter a/ia that: "1. Under section 97 of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia, an appeal shall not lie to the Supreme Court if it is on points of fact only." J10 7.6 It was submitted on behalf of the Respondent that it is trite law that no appeal lies to this Court on or against findings of fact. 7.7 It was further submitted that no appeal can lie against the Court below on an issue it did not pronounce itself or on what the Appellant assumes as what the Court below should have considered. 7.8 It was submitted therefore, that ground one lacks merit. 7.9 With regard to ground two, it is contended and submitted on behalf of the Respondent that the Court below considered and found as a fact that there was some relationship between Rojack Transport and Tropics Ltd as stated at page 36 lines 5 to 8 of the judgment, and ground two attacks findings of fact which is not permitted on appeal at law. 7.10 It was also submitted that the Appellant was also giving evidence at the bar and it is the Respondent's contention through Counsel that the appeal should not be used as a tool for the Appellant to have a second bite at the cherry. ill 7.11 To fortify its argument, the Respondent relied on Order 10 Rule 20 of the Court of Appeal Rules of the Court of Appeal Act, N2 7 of 2016 of the Laws of Zambia which states that: "Appeals to the Court shall be by way of re-hearing on the record and any further evidence received under section 24 of the Act." 7.12 It was, therefore, submitted that ground two lacked merit. 7.13 The Respondent's response to ground three is that it cogently amounts to the Appellant giving evidence at the bar, which is not permitted, and that it is not a ground of appeal and therefore, devoid of merit. 7.14 The Respondent's response to ground four is equally the same that it amounts to the Appellant giving evidence at the bar which is not permissible as aforestated. 7.15 It was submitted that the Court below was on firm ground when it found as a fact on page J7, lines 16 to 18 of the record of appeal that: "All the above point to the fact that the Complainant was as well an employee of Tropics Limited from July 2012 up to the date of his February, 2017 both dates dismissal on inclusive." 3rd J12 7.16 It is contended and submitted that, ground four is therefore, frivolous and vexatious. 7.17 With respect to ground five, that the relationship between Tropics Ltd and Rojack Transport still exist as sister companies but that the Court below did not consider that they are one group of companies, the Respondent argued that it is not a valid ground of appeal. The said argument is premised on the fact that no decision was made by the Court below to consider whether the two named companies are one group of companies. It was further submitted that the said ground of appeal also challenges a finding of fact by the Court below. 7.18 It is contended that ground five not only lacks merit, but is frivolous and vexatious. 7.19 The Respondent's response to ground six, which attacks the finding by the Court below that the Appellant was paid his dues when he left Tropics Ltd, is that the Court below was on firm ground when it held that he did not show the basis upon which he should be paid terminal benefits upon dismissal. J13 7.20 It was further submitted that this ground also seeks to challenge the findings of fact by the Court below which is not permissible at law. 7.21 This Court was referred to the case of WILHElM ROMAN BUCHMAN v ATTORNEY GENERAL in which the Supreme Court held inter aliathat: "A matter that is not raised in the Court below cannot be raised before a higher court as a ground of appeal." 7.22 The cited case was relied on by the Respondent in relation to the Appellant's testimony at page 83, lines 7 to 8 of the record of appeal where the Appellant (Complainant) stated as follows: "I also want my terminal benefits from 2007." 7.23 In view of the foregoing, it is the Respondent's contention that the Court below was on firm ground in finding that the Appellant was paid all his dues. 7.24 It was submitted that ground six is also frivolous and vexatious. 7.25 The Respondent's response to ground seven is that it is also frivolous and vexatious as it solely attacks findings of fact which is not permissible at law. J14 7.26 It was finally submitted on behalf of the Respondent that the entire appeal is solely against findings of fact or what the Appellant assumes the Court below should have considered. It was further submitted that the issues raised cannot be sustained as grounds of appeal. 7.27 In conclusion, it was submitted that the appeal should be dismissed with costs to the Respondent for lacking merit. 8.0 DECISION OF THIS COURT 8.1 We have considered the grounds of appeal, respective arguments and authorities cited, the evidence on record and judgment appealed against. 8.2 With regard to ground one, in addition to the Respondent's arguments, we took into consideration the testimony by RW1, Gillian Enotiodes, the Respondent company's Director. At page 103, lines 17 to 20 of the record of appeal she testified that Hong Kong Restaurant was a family business for Anita Kinnear and that the Respondent had no relationship with it and that they were not affiliated in any way. She further testified to the effect that although Spyros Enotiodes, the Director for Athol 0- i15 Plastics and Rojack Transport Limited was assisting her in the Respondent company, the companies are separate and distinct from each other. 8.3 We noted from the Appellant's arguments that he sought to persuade the Court to believe that he was transferred by the Respondent company to Hong Kong Restaurant and that it was not a totally different contract of employment. 8.4 However, we are not persuaded and we are of the considered view that it is wrong for the Appellant to assume that since the directors of the Respondent company, Rojack Transport and Hong Kong Restaurant seemed to have some nexus, he was thus employed under one umbrella of companies that were being operated by one management. 8.5 To support this position we rely on the case of ASSOCIATED CHEMICALS LTD v DELAMAIN (ZAMBIA) LTD & ANOR4 where the Supreme Court held that: "It is wrong in principle to distinguish between old and new shareholders or between new and old management or treat business transactions giving rise to the claim as one essentially between individuals. A principal of the law which is now entrenched is that a company is a distinct legal J16 person different from its members or shareholders." 8.6 In this regard, it cannot be said that the Appellant was transferred from the Respondent company to work at Hong Kong Restaurant as the two are distinct and separate entities. 8.7 We are further of the view that had the Appellant been transferred from the Respondent company to Hong Kong Restaurant, there would have been a new contract of employment and it would have been expressly stated as was the case in the copy of the letter dated 6th March, 1992 from Smartwear Limited addressed to the Appellant, that is exhibited as "EMS10" at page 30 of the record of appeal. 8.8 Consequently, for the reasons stated, we find that the Court below was on firm ground in deciding as it did. We find no merit in ground one and it is, accordingly, disallowed. 8.9 Arising from ground one and the Respondent's arguments in response, we observed from the judgment of the Court below, at page J6, lines 5 to 8 that it acknowledged that there was some relationship between Rojack Transport and Tropics Ltd but not with Hong Kong Restaurant. Whilst we accept that no it J17 appeal can lie to this Court against findings of fact by the Court as was held in the case of WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD5 that: "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts." We agree with the Respondent's submission that no appeal can lie against the Court below on an issue it did not pronounce itself on, like Hong Kong Restaurant's position in relation to the Respondent company. 8.10 With respect to ground two we are of the considered view that the issue of the alleged transfer from the Respondent company to Hong Kong Restaurant has been addressed in ground one that the two companies were separate and distinct. 8.11 Furthermore, upon our perusal of the record of proceedings in the record of appeal, nowhere have we found any evidence of the alleged transfer. It was, therefore, incumbent upon the Appellant to demonstrate to the Court that he was in fact transferred as opposed to making a bare assertion. This I J18 position of law is supported by the Supreme Court in the case of WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD where it observed that: "I think that it is accepted that where a 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 prove his case cannot be entitled to judgment, whatever may be said of the opponent's case." Consequently, we find that ground two is devoid of merit and we disallow it. 8.12 From the Respondent's arguments, we noted that grounds three, four and five have been challenged by the Respondent for not being real grounds but evidence given at the bar by the Appellant. 8.13 In view of the Respondent's submission that no appeal can lie against the Court below on an issue it did not pronounce itself on, we agree that grounds three, four and five are not proper grounds of appeal and that they are, therefore, devoid of merit. We, accordingly, disallow them for being frivolous and vexatious. J19 8.14 We turn to ground six in which the Appellant faults the Court below for adjudging that he was paid his dues when he left the Respondent company. Upon perusal of the record of appeal at page 102, lines 24 to 25 and particularly the testimony of RW1, Gillian Enotiades, we observed that the Court below based its finding that the Appellant was paid all his dues on her evidence. 8.15 We further observed that the Appellant did not challenge her evidence and therefore, since her evidence was unchallenged, there was no reason for the trial judge to doubt it. In the circumstances, we find that he was on firm ground to arrive at the decision that he did. 8.16 We, accordingly, find that ground six lacks merit and we disallow it. 8.17 We finally turn to ground seven. As the Respondent earlier submitted and alluded to, this ground also attacks the finding of fact of the Court below when it stated that it was also satisfied that there was some relationship between Rojack Transport and Tropics Ltd. (cid:9) And that arising from this J20 relationship, the Complainant (Appellant) was actually employed to work for both Tropics Ltd and Rojack Transport. 8.18 We are of the view that since grounds one, five and seven are essentially similar in terms of content and grounds one and five have already been determined in this appeal, we find ground seven to be otiose. 9.0 CONCLUSION 9.1 In conclusion, all the grounds having been unsuccessful, the net result is that the entire appeal fails as it is devoid of merit. 9.2 We, accordingly, dismiss it with costs for the Respondent in this Court and in the Court below. F. M. Chishimba COURT OF APPEAL JUDGE F. M. Lengalenga (cid:9) COURT OF APPEAL JUDGE (cid:9) M. 3. Siavwapa COURT OF APPEAL JUDGE