Mudenda v Mutanga and Anor (Appeal 229 of 2013) [2017] ZMSC 242 (31 January 2017)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No.229/2013 SCZ/8/176/2013 BETWEEN: GEOFFREY KALOMO MUDENDA APPELLANT AND 1st RESPONDENT ROBSON ESSAU MUTANGA REM CONCESSION & COMPANY LIMITED 2nd RESPONDENT Coram: Phiri, Hamaundu and Chinyama, JJS. On 24th May, 2016 and on 31st January, 2017. For the Appellant: Messrs Katongo & Company (N/A). For the Respondents: Messrs Kitwe Chambers (N/A). JUDGMENT Chinyama, JS, delivered the Judgment of the Court. Cases referred to:- 1. Mbavu and Others v the People (1963-1964) Z. AND N. R. L. R. 164 2. Nkhata and Others v Attorney General (1966) ZR 124 Statutes referred to:- 1. The Employment Act, Chapter 268 of the Laws of Zambia, section 24. J2 This is an appeal against the judgment of the High Court at Kitwe dated 16th April, 2013 which decided that the appellant’s claims for payment of commissions arising out of the purchase of motor vehicles in South Africa and Dubai altogether totalling K2,375,000 and US$6,875 as well as payment for the value of items seized from the appellant by the 1st respondent had not been proved; that the respondent’s counter-claim for the sum of US$5,000 allegedly stolen by the appellant from the 1st respondent while in Dubai as well as the cost of the appellant’s return air ticket to Dubai valued at US$700 had been proved. The appellant was the plaintiff in the court below while the 1st and 2nd respondents were the 1st and 2nd defendants respectively. We will be referring to the parties by their designations in this appeal unless where the context permits otherwise. The summary of the undisputed evidence put before the court below was that in November, 2004, the 1st respondent, a director and proprietor of the 2nd respondent company had travelled to South Africa with the appellant and two other drivers named Lee and Robert. The purpose of the trip was to buy motor vehicles. The 1st respondent bought three vehicles which the appellant, Lee and J3 Robert drove back to Zambia. In Zambia, two of the three motor vehicles were sold at K24,500,000 and K23,000,000, respectively while one was kept for the 1st respondent’s use. Lee and Robert were paid US$200 each for driving the motor vehicles to Zambia. The appellant had been given KI00,000 before leaving for South Africa. The kwacha denominations in this judgment are non­ rebased. In February/March, 2005, the appellant and the 1st respondent travelled to Dubai in the United Arab Emirates (UAE) where the 1st respondent bought two dumper trucks, a vanette and a sedan. It was agreed that the appellant would refund the 1st respondent the cost of the return air ticket of US$700 before they left for Dubai. The appellant did commit himself in a document dated 24th February, 2005 in the following terms:- “ AGREEMENT FORM The agreement has to confirm that I Geofrey Kalomo Mudenda have agreed to work under the management of REM Concession and company Ltd. I hereby certify that I will not terminate this contract until I pay back the money I used to travel to United Arab Emirates. I have agreed to pay back the money to the company the sum of K.............. J4 And if I run away without paying the company money, Mr. R. E. Mutanga will seek the court to redress. Geoffrey Kalomo Mudenda (signed)” In Dubai, the 1st respondent gave the appellant US$200 which the appellant used to buy some personal items. The 1st respondent also bought the appellant other items. While still in Dubai, it was discovered that US$5,000 was missing from the money the 1st respondent had travelled with. The discovery was made in the hotel room the duo were sharing after the appellant counted through the money handed to him by the 1st respondent. The 1st respondent told the appellant to record the fact in his diary and the appellant did so as follows “On Saturday of 26th February 2005 we discovered that we have a short of $5000? It was painful for me becoz I was the only person with papa. I am 100 percent innocent. God knows who did hit but one day? Bad day for me this day (signed).” Upon returning to Zambia, the 1st respondent reported the appellant to the Zambia Police over the loss of the US$5,000. The appellant was detained in police custody before he was released. The 1st respondent also collected J5 from the appellant the items listed in a document dated 2nd April, 2004 which comprised the following: a blue suit case; a brown duve(t); a pair of black shoes; two pairs size 7 sandals; two pairs men’s blue jeans; one black skipper; one black trousers; one men’s shirt; and one gold flask. The document was signed by the 1st respondent, a police officer (the dealing officer) and the appellant. The 1st respondent collected the items on the ground that they were purchased from the respondents’ money. The foregoing matters were not in dispute. The appellant gave evidence in the court below that he and the 1st respondent had agreed to work together. They had not agreed on any payment. The 1st respondent promised to give him 10% shares in the 2nd respondent company. They discussed the possibility of the 1st respondent buying trucks to work at the mines on the Copperbelt. When two of the motor vehicles the 1st respondent bought in South Africa were sold, he expected to be paid a commission although they had not agreed on it. J6 Before leaving for Dubai, he exchanged on behalf of the 1st respondent US$65,000 from Kwacha out of which he was to be paid 2.5% (US$1,625) commission for the service. Whilst in Dubai they bought two dumper trucks at US$21,000 and US$14,500 which he personally negotiated for from the initial prices of US$25,000 and US$20,000, respectively. The 1st respondent promised him a 50% commission on the discounts (that is to say, US$2,000 and US$2,750, altogether coming to US$4,750). The appellant also claimed that the 1st respondent bought a van and a car which were initially priced at US$5,000 and US$1,800 but which he negotiated down to US$4,800 and US$1,500, respectively (thus entitling him to commissions of US$100 and US$150 altogether coming to US$250). It was the appellant’s further evidence that the 1st respondent offered to pay the commission on the Dubai transaction. He said that he worked for the 1st respondent who did not pay him anything apart from the US$200 in Dubai. The 1st respondent’s evidence in the court below was that he took the appellant with him to South Africa as a driver along with Lee and Robert whom the appellant found. The fee for each one of J7 the three drivers was agreed at US$200. He sold two of the three motor vehicles bought in South Africa without the help of the appellant and he denied promising the appellant any commission. He said that he travelled to Dubai to buy the motor vehicles using his share of the proceeds (US$370,000) realised from the sale of Chibolele Mine in which he had been a director. He changed the Kwacha into United States Dollars on his own and that he had a dollar account. In his further evidence, the 1st respondent said that he went to Dubai with the appellant upon the latter’s request. He bought him a return air ticket because he had promised him a job in the 2nd respondent Company once it started operating but that he did not employ him. He bought the tipper trucks at US$14,500 and US$22,000 and a Toyota Hilux vanette at US$4,500 with the assistance of a Ugandan who took them around Dubai. He denied that the appellant negotiated the vehicle prices. It was his evidence that he bought the things that he got back from the appellant whom he had also lent US$200 to buy clothes for his wife. Upon returning home the 1st respondent saw an empty box of a Citizen wrist-watch in the appellant’s suitcase which confirmed his suspicion that the J8 appellant had stolen the money. At the discussion attended by the appellant’s father and brother, the appellant admitted having taken the US$5,000 and asked for a week in which to pay the money. The money has never been paid. The trial judge found, after considering the evidence, that the appellant was an employee of the 2nd respondent but that no specific contract of employment existed between the parties upon which the appellant could validly sue for the payment of the commissions. For the trip to South Africa, the judge found that the appellant was paid his dues and that he was not entitled to any commission. The judge also determined that the claims for commission against the 2nd respondent in relation to the trip to Dubai must fail because in the undertaking in which the appellant committed himself to pay the cost of the return air fare to Dubai he never mentioned any payment of commission or salary and that even in his testimony the appellant failed to convince the judge that he was so entitled. On the property collected by the 1st respondent from the appellant, the judge found that the appellant freely handed it back. On the counter-claim, the judge found that the respondents i : J9 are entitled because the appellant had agreed to pay back the US$700 air fare and the US$5,000 lost in Dubai. Dissatisfied with the judgment by the court below, the appellant appealed to this court on five grounds of appeal as follows “1. 3. 4. The learned trial judge erred in law and in fact when he held that no specific contract of employment existed upon which the Plaintiff/Appellant can validly sue notwithstanding the Defendants’ own admission that the Plaintiff/Appellant was an employee of the Defendants. The learned trial judge erred in law and in fact when he held that there was no proof of the Plaintiff/Appellant’s entitlement thereby dismissing the Plaintiff/Appellant’s claims for commission notwithstanding the Plaintiff’s testimony that the Plaintiffs terms of remuneration were subject to oral conditions and in the light of section 24 of the Employment Act Chapter 268 of the laws of Zambia. The learned trial judge erred in law and in fact when he held that the Plaintiff/Appellant must refund the Respondent the air ticket to Dubai, when his employment contract was terminated by the Respondents immediately the Appellant and the 1st Respondent returned from Dubai in the light of the written loan agreement cited at pages 4 and 5 of the High Court judgment. The learned trial judge erred in law and in fact when he held that the Appellant refunds the Defendants the missing US$5,000.00 when there was no proof to the effect that the Appellant stole and/or retained the same and owing to the fact that the money was at all times in the hands of the 1st Defendant who only gave the Plaintiff the money to count in the 1st Defendant’s full view. J10 5. The learned trial judge erred in law and in fact when he held that the Appellant had freely handed over his personal effects which he bought from Dubai to the Respondents when the same was done at the Police Station under coercion.” It relation to ground 1, it was submitted to the effect that the judge having found that the appellant was an employee of the 2nd respondent should not have determined that there was no contract of employment on which the appellant could validly sue. Therefore, that the ground of appeal should be upheld. Pertaining to ground 2, it was submitted to the effect that the court below should have accepted the assertion of the appellant as to his remuneration during the contract of employment in terms of section 24 (5) of the Employment Act because the contract was not in writing. For ease of reference we reproduce the entire Section 24 below. 24. (1) Every employer shall prepare and maintain at his expense, or cause to be prepared and maintained, a record of contract for every employee employed by him under an oral contract of service. (2) A record of contract shall be in the prescribed form and shall contain the following particulars: (a) the name and sex of the employee and his nationality; JU (b) the name, address and occupation of the employer; (c) the date of the employee's engagement and the capacity in which he is to be employed; (d) the type of contract; (e) the place of engagement; (f) the rate of wages and any additional payments in kind; (g) the intervals of payment. (3) Every record of contract shall be prepared in duplicate and one copy shall be given to the employee at the time of his engagement (or, in the case of employees engaged before the commencement of this Act, within one month of such commencement) and one copy retained by the employer: Provided that each copy shall be amended by the employer in the event of any change in the particulars required to be recorded. (4) An employer who fails- (a) to prepare or cause to be prepared such record as aforesaid; or (b) to issue a copy of a record of contract to the employee concerned; shall be guilty of an offence. (5) Where any dispute arises as to the terms and conditions of an oral contract other than a contract for the employment of a casual employee, and the employer fails to produce a record of such contract made in accordance with the provisions of this section, the statement of the employee as to the nature of the terms and conditions shall be receivable as evidence of such terms and conditions unless the employer satisfies the court to the contrary. (Underlining supplied) J12 It was submitted that Section 24(5) ought to be construed in favour of the appellant so that his version of the terms and conditions of the remuneration should have been accepted as being more probable than the respondents’ stance. We were urged to uphold the second ground of appeal. The substance of the submission in ground 3 was that the agreement to refund the air ticket depended on the appellant receiving a salary, as allegedly shown in the appellant’s undertaking; that he never got any salary because the contract of employment with the 2nd respondent was terminated by frustration after the appellant was reported to the police for theft of the US$5,000. We were implored to uphold ground 3 of the appeal. The essence of the submission in ground 4 was that there was no proof that the appellant had stolen the US$5,000. It was submitted that the appellant could not have stolen the money as shown by what transpired in the room in Dubai; that what the appellant recorded in the diary (at the behest of the 1st respondent) cannot be an admission but evidence of the appellant’s innocence. Therefore, that the finding by the learned trial judge left much to be desired. It was the appellant’s prayer that ground 4 should succeed. J13 The submission in support of ground 5 was to the effect that given the accusation that he had stolen the US$5,000 and taking into account his detention in police custody, the appellant was coerced into handing over the items and was, therefore entitled to claim them back. We were similarly urged to uphold this ground of appeal. All the five (5) grounds of appeal were responded to as one. In relation to the finding by the court below that there was no specific contract upon which the appellant could sue, the respondents’ submission sought to elaborate that what was being referred to was that no specific arrangement was made [to pay any remuneration to the appellant] for the trip to Dubai and not the general employment of the appellant. It was further submitted that the trial court was better placed to observe the parties and make a conclusion on the facts and demeanour of the witnesses before it. It was thus contended in relation to the appellant’s claims and the respondent’s counter claims that the issues appealed against are matters of findings of fact which the trial court ably handled. J14 The case of Mbavu and Others v the People1 was cited in which the Court of Appeal, the forerunner to this court, stated that: “Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion.” We were urged to dismiss the appeal on the account that the trial judge was better placed to determine the facts of the case. We have applied our minds to the grounds of appeal, the judgment of the court below, the arguments for and against the appeal as well as the pleadings in the court below. Grounds 1 and 2 are related as they question the finding by the court below that no specific contract of employment existed upon which the appellant could validly sue; that the court below should have accepted the evidence of the appellant on the basis of Section 24(5) of the Employment Act. It is our understanding that the two grounds of appeal only affect the claim for payment of commission for the Dubai trip. This is because for the South Arica trip, the established fact is that the payment of commission was never discussed or agreed as the J15 appellant stated in his oral evidence notwithstanding that in the amended statement of claim it was pleaded, among other things, as follows: “4. That sometime in November 2004, the 1st Defendant on behalf of the 2nd Defendant approached and offered the Plaintiff a job to assist in the running of the business concerns in the 2nd Defendant on a commission basis for every transaction. 5. A verbal agreement was entered into between the two parties on the terms set in paragraph 4 above.” If the payment of commission or any remuneration was not discussed or agreed upon then the appellant was excluded from claiming the payment of commission or any remuneration unless there was evidence that the circumstances of the case were such that an agreement to pay for the service(s) rendered was implied which was not established in this case. We reiterate, therefore, that grounds 1 and 2 of the appeal relate only to the claim for payment of commission on the Dubai trip. The effect of this is that there is no appeal against the part of the finding by the court below that the appellant is not entitled to payment of commissions arising from the South Africa trip. J16 Returning to the issue at hand, the starting point is the appellant’s pleading in paragraphs 4 and 5 of the amended statement of claim already cited above. That is the pleading which the appellant needed to prove. The 2nd respondent’s defence was, of course, that:- “2. The 2nd Defendant denies the contents of paragraph 4, 5, 6, 7 and will aver that there was no verbal agreement of employment neither was there a proposal made by the Plaintiff to the 2nd Defendant on how to run the business concerns of the 2nd Defendant.” (Underlining supplied) It is, however, not in dispute that the appellant was in the 2nd respondent’s employment when they went to Dubai as established at least by the tacit admission in the 2nd respondent’s defence (at pages 40 to 43 of the record of appeal) as follows: “7. The 2nd Defendant will further aver that it was a term of the employment of the Plaintiff that the costs of his trip and expenses in Dubai will be deducted from his salaries upon return to Zambia. 10. The Defendant will further aver that the items indicated in paragraph 24 namely the motorolla cell phone, 2 pairs of shoes, one pair of boots, T. shirt, trousers were all company property, which the Plaintiff was obliged to return upon dismissal. ” (Underlining supplied) J17 The agreement form of 24th February, 2005 in which the appellant made the undertaking to repay to the 2nd respondent the cost of the air fare to Dubai equally confirmed his employment with the 2nd respondent. The question, then, is was it a term of that contract that commission would be paid for the services allegedly rendered by the appellant, namely: his alleged exchange of kwacha to dollars and negotiating the reduction of the price of the vehicles bought in Dubai as pleaded in the court below to warrant the invocation of subsection (5) of Section 24 of the Employment Act? The appellant’s evidence in the court below was that:- “The purpose of him taking me along was because I was able to negotiate the prices. He promised me to get a commission of 50% commission on the discounts I negotiated... I personally negotiated these discounts.” And “I am claiming money I was supposed to be paid as per statement of claim... We had agreed on these percentages.” And when cross-examined “We agreed on commissions on the discounts I negotiated. I regarded the US$200 as a gift. Not as commission” The 1st respondent’s responses were, however, that:- J18 “Yes, I have a Dollar Account... The Plaintiff did not help me to change Kwacha to Dollars. He is not entitled to any commission on the dollars I got for the trip... It was never agreed upon.” “I managed to get money transferred from Canada to the CHIBOLELE MINING ACCOUNT in Kitwe. When I got my share of the money I got $370,000 transferred to my personal account.” "In DUBHAI I bought a Tipper Truck ... another... and a Hilux van...” And And And “I deny that he was entitled to commission. I took him to Dubhai. He is a liar.” (Underlinings supplied) The court below was not convinced on the evidence, including the undertaking made by the appellant on 24th February, 2005, that the appellant was entitled to a salary or commission. The court concluded that no specific contract of employment existed upon which the appellant could validly sue. In our understanding, the J19 court was simply saying that, on the evidence before it, no terms as to the payment of commissions or salary existed which entitled the appellant to make the claim. The appellant’s contention is that since the contract of the appellant’s employment with the 2nd respondent was oral and no record of oral contract was kept and maintained as required under Section 24(1) of the Employment Act, the court should have preferred the evidence of the appellant in terms of Section 24(5) of the Employment Act. The respondents’ submission on the issue was an endeavour to portray the commission issue as being outside the contract of employment; that the court below was referring “to a specific arrangement for the trip to Dubai”. A passage in the judgment was cited in respect of which the court below observed that the agreement form of 24th February, 2005 did not mention any terms as to commission or salary; that even “in his own testimony during trial, the Plaintiff failed to convince” the court below that he was entitled to a salary or commission. So, the question now is, is the claim for payment of commissions arising from the Dubai trip J20 not caught by the contract of employment between the appellant and the 2nd respondent? Our short answer is that it is. The appellant was an employee of the 2nd respondent by virtue of an oral contract of employment. That being the case the 2nd respondent was bound in terms of Section 24(1) of the Employment Act to prepare and maintain, at its expense, a record of oral contract of employment containing, in this case, as required under subsection (2)(f) of Section 24, details of the wages and any additional wages in kind. The 2nd respondent did not, however, produce a record of oral contract as required under Section 24(1). What was there to stop the court below from receiving the statement of the appellant as provided in subsection (5) of Section 24? Subsection (5) of Section 24 of the Employment Act, without doubt, casts a burden on the employer to satisfy the court that the employee is not entitled to the terms and conditions being claimed. It is obvious that the court below had addressed itself to the appellant’s evidence in support of the claim and the respondents’ defence against the claim. It preferred the respondents’ evidence, hence the assertion in the judgment that “Even in his own testimony during trial, the J21 Plaintiff failed to convince me that he was entitled to a salary or commission”. It seems to us that the court made the conclusion after assessing the evidence before it, a matter which has not been particularly challenged by the appellant. The Court below had the advantage of seeing and listening to the parties and it has not been shown that the Court fell into error in accepting that evidence. The court was satisfied with the evidence of the respondents. The leading case of Nkhata and Others V. Attorney General2 sets out the conditions in which an appellate court can interfere with a trial court’s findings of fact and the conclusions that are drawn from those findings as follows: "A trial judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the appellant court that: (a) by reason of some non-direction or mix-direction or otherwise the Judge erred in accepting the evidence which he did accept; or in assessing and evaluating the evidence the judge (b) has taken into account some matter which he ought not to have taken into account, or failed to take account some matter which he ought to have taken into account; or it unmistakably appears from the evidence itself, or (c) from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or J22 in so far as the judge has relied on manner and (d) demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted it is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer.” This court has time and again reiterated the foregoing as good law. In the case before us it was not demonstrated that any of those conditions were breached. On this basis we hold that the court below properly discounted the appellant’s assertions. We, accordingly, find no cause to disturb the findings of the court below. There is no merit in the two grounds of appeal and we dismiss them. Turning to ground three, it is clear, on the evidence, that the appellant merely undertook not to terminate his employment contract with the 2nd respondent until he had paid back the money he used to travel to Dubai. In our understanding, this did not bind the 2nd respondent to only accept money that the appellant received from his employment. The airfare cost was a debt and as we see it, the remuneration from his employment was only one source which could provide the money to repay the debt. The termination of the employment did not mean that the debt had been extinguished. J23 The appellant was still liable to repay the debt using whatever other means at his disposal. In his evidence in chief before the Court below the appellant had testified “I later signed an agreement that I should refund the cost of the air ticket to and from Dubai. But the amount was not indicated. I know the amount was US$700 to and from Dubai. I agreed to pay it back. The agreement was made before we left for Dubai. I agreed to pay it back because I did not want to be left behind.” The testimony does not disclose any conditions for the repayment of the airfare. It also puts beyond question as to what the appellant committed himself to. There is clearly no merit in ground three and we dismiss it. Turning to ground 4, the issue is that it was erroneous to order a refund of the US$5,000 when there was no proof that the appellant had stolen the money. The appellant has taken issue with the following passage in the judgment of the court below: “The US$5,000 was the amount which was found to be missing while the 1st Defendant’s money was in the Plaintiff’s hands on 28th February, 2005 whilst the two were in Dubai. The Plaintiff admitted to this fact on the document at page 3 of the Defendant’s Bundle of Documents. In the premises I also find for the 1st Defendant in that sum.” J24 The admission mentioned in the passage is the statement recorded by the appellant in the diary in Dubai which we earlier recited. The court took the appellant’s statement to be an admission of guilt. We do not agree. In the statement it is clear that the appellant was lamenting the loss of money; that it was painful because he was the only other person in the room with the 1st respondent. It was a serious misdirection, therefore, to conclude on the above basis that the appellant had stolen the money. Where the issue to be decided on this basis alone, we were going to find merit in the ground. There is, however, evidence on record which takes the matter further. In his evidence in chief the 1st respondent testified at page 81 of the Record of Appeal that the appellant admitted after they had returned from Dubai in the presence of his father and his brother that he had taken the money and asked for a week in which to repay the money; that after the week, the appellant went back to ask for more time, that the appellant has not paid back the money. We cannot ignore this evidence and in so far as the counterclaim is concerned, the appellant did not challenge it. The fourth ground of appeal cannot, therefore, succeed on the basis that J25 the appellant had admitted taking the money. We dismiss the ground of appeal. The fifth and last ground of appeal denied that the appellant freely handed over the items bought in Dubai but that he was coerced to do so at the police station. The Court below found that the appellant had freely agreed to hand them back. There was common evidence that the things which the 1st respondent got back from the appellant were those which he had bought for him in Dubai. It is obvious that the 1st Respondent was driven by emotions arising from the loss of the US$5,000. The evidence shows that the items given to the appellant in Dubai were a gift. Once given the appellant became the owner and could only divest himself of their ownership if he willingly gave them away or were taken from him in execution of a lawful decree. From the events that followed upon the appellant and 1st respondent returning from Dubai, we are in no doubt that the appellant did not hand those items to the 1st respondent willingly. The appellant is entitled to the items grabbed from him. We find merit in the fifth ground of appeal. J26 Except for the 5th ground of appeal the rest of the appeal has no merit and we dismiss it. We uphold the appellant on the one ground of appeal. On that basis we award the costs of this appeal to the appellant. SUPREME COURT JUDGE SUPREME COURT JUDGE SUPREME COURT JUDGE