Geoggrey Knox Zulu v Zambia Railways Ltd (Appeal 52 of 2000) [2001] ZMSC 113 (1 June 2001)

APPEAL NO. 52/2000 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CIVIL JURISDICITON) BETWEEN: GEOGGREY KNOX ZULU Appellant and ZAMBIA RAILWAYS LIMITED Respondent CORAM: Ngulube, C. J., Chirwa and Late Muzyamba JJS On 8th November 2000 and 1st June 2001 For the Appellant: For the Respondent: In person Mr. P. C. Musonda, Legal Counsel, Z. R. L. JUDGMENT Chirwa, J. S. delivered the judgment of the Court: - The panel that heard this appeal included our late brother Justice Muzyamba. This judgment should therefore be taken as judgment of the majority on the panel. The appellant, GEOFFREY KNOX ZULU, sued the respondent. ZAMBIA RAILWAYS LIMITED (in this judgment the parties will be referred to as appellant and respondent respectively) for the recovery of the sum of K5,979,704-00 as unpaid terminal benefits broken down as follows: - (1) (2) (3) (4) Payment in lieu of notice: Performance and Confirmation Increment 01/04/93 to 30/04/94: Long service gratuity and increment: Payment for the 13 days worked after 31/03/94 K670.679.00 K3,600,000.00 K1,632,000.00 K77.025.00 : J2 Giving a total of K5,979,704.00. This is the claim according to the amended specially endorsed writ filed in Court on 2nd May 1997. However, in the Statement of Claim, the sums claimed were different. The summarized claims in the statement of claim are: - (a) (b) (c) (d) (e) The sum of K1,022,000.00 per annum being the difference between the wrong annual salary used for computation of the terminal benefits and the correct one including the allowances. The sum of K8,601,000.00 being loss of income as the contract was breached. Interest thereon at the current bank rate till date of full payment. Damages for breach of contract Further and other whiff. After a trial during which the appellant gave evidence and one witness on behalf of the respondent also gave evidence, the learned trial judge made certain findings of fact after analyzing the evidence before him. He made these findings after finding that the case raised two issues, namely, whether the appellant was placed on a three year contract after his application for voluntary retirement was suspended and whether the plaintiff’s salary at the time he was retired was inclusive of allowances which should have been included in computing terminal benefits. The learned trial judge found as a fact that when the appellant’s application for voluntary retirement was refused and the appellant told to continue working as usual until further advised, there was no three-year contract entered between the parties and dismissed the appellant’s claims for breach of contract. On the second claim, the learned trial judge considered this claim in segments and in the first segment found as a fact that when one is acting in any position for any reason other than promotion, for less than 6 months the acting allowance cannot be added to the salary for the purposes of calculating terminal benefits. On the second leg, he found as a fact that there had been no performance appraisal conducted and therefore the claim of one notch of J3 K800.00 per month failed. The third leg was on allowances which were, with effect from 1st August 1994 lumped together with the salary, the issue here was whether the appellant was entitled to have his allowances to be added to his salary in calculating his terminal benefits. The learned trial judge found as a fact that when the new salary structure which lumped allowances together with salary came into effect on 1st august 1994 the appellant had long ceased to be an employee of the respondent and therefore his terminal benefits could not be calculated to include allowances. On the totality, therefore, the appellant’s claims were dismissed. It is against the dismissal that he now appeals to this Court. In his memorandum of appeal, the appellant put forward 5 grounds of appeal which were followed by very detailed and well elucidated written heads of arguments which the appellant relied upon for his appeal. The respondent also filed detailed heads of arguments. Basically, having gone through all the grounds of appeal and arguments, we find that they are based on the findings of fact by the learned trial judge. The law under which this Court can interfere with the findings of fact by the trial Court has been stated in cases such as NKATA & OTHERS V ATTORNEY GENERAL 11966] Z. R. 124; KAPEMBWA V MAIMBOLWA & ATTORNEY-GENERAL.fi981] Z. R. 127 and ATTORNEY-GENERAL V PETER MVAKA NDHLOVU [19861 Z. R. 12. In the NKHATA case (1) the Court of Appeal, predecessor to this Court, set out principles where an appeal Court may interfere with the findings of fact of the trial Court and for clarity we will set them out as stated at P.125 of the report: - “A trial judge sitting alone without a jury can only be reversed on facts when it is positively demonstrated to the appellate Court that: - (a) By reason of some non-direction or mis-direction or otherwise the judge erred in accepting the evidence which he did accept; or J4 : (b) In assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account, (c) It unmistakably appears from the evidence itself or 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 (d) In so far as the judge relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer”. Bearing in mind these principles we will now refer to the grounds of appeal advanced by the appellant. The first ground of appeal is that: “The honourable trial judge erred both in law and facts by not taking into consideration the circumstances surrounding the retirement, which I was subjected and deprived of my accrued benefits". In his detailed written argument the appellant submits that when he applied for voluntary retirement, the respondent turned this down because he was involved in the training programme and would only retire on completion of the programme and for this he refers to letter at pages 102 and 103. He further submitted that the suspension of voluntary retirement in his case was abruptly lifted and he was retired without notice. The learned trial judge considered the points raised in this ground of appeal and made a finding that the appellant applied for voluntary retirement in his letter dated 23rd April 1993 which application was turned down by the : J5 respondent in its letter dated 27th August 1993. In this letter the appellant was informed that voluntary retirement had been suspended until further notice and the appellant was advised in the meantime to continue “working as usual until further advised". The question may arise as to what was meant by “working as usual until further advised." When the appellant wrote the voluntary retirement letter on 23rd April 1993 he was Senior Lecturer (C & w) at the Engineering Training School. He was advised to continue working as such. The joint letter at page 102 dated 28th May 1993 from the Chief Mechanical and Electrical Engineer and General Manager (W) was a request to management for the appellant, instead of being completely retired, to be on 3-year contract. This request was never conceded to, instead the writers were asked to identify staff to be trained, to fill up the anticipated vacuum (see memorandum from the Director of Personal and Administration at page 103 of the record dated 2nd June 1993). What followed then was the letter of 27th August 1993 where the application for voluntary retirement was rejected and the appellant was asked to continue, “working as usual until further advised". He was asked to continue working as Senior Lecturer. The consideration by the lower Court of all these matters was on the claim of breach of 3-year contract. The learned trial judge found as a fact that there was no 3-year contract on which the appellant would claim breach. We cannot fault the finding of this fact. As we alluded to earlier, the joint letter from the Chief Mechanical and electrical Engineer and General Manager (W) was a request that the appellant to be put on a 3-year contract. This was never accepted by the respondent. There was therefore no breach of contract and the appellant continued working as usual on his permanent and pensionable conditions. The question of wrong notice of termination of employment by a telegram, was accepted by the respondent and the appellant was duly paid 3 months salary in lieu of notice. This first ground of appeal is therefore dismissed. The second ground of appeal was that the honourable trial judge erred by basing his judgment on unsupported evidence of the defendant's witness which J6 : had no documentary support, that the appellant was acting for administrative convenience or that the appellant was acting for administrative convenience or that the position was not vacant and that the appellant acted for less that 6 months, notwithstanding that there was evidence of vacancy created by the death of senior staff in the department which caused the chain reaction of acting appointments. The appellant criticizes the learned trial judge for not looking into the root cause that necessitated the acting appointments. The appellant then gives the various periods he acted and these periods add up to 6 months and submitted that on this basis his terminal benefits ought to have been calculated on the assumption that he had been confirmed in the senior position in which he was acting. He further states that this should be the position because the three months salary in lieu of notice included all allowances. The appellant's letter of acting appointment is at page 88 of the record and is dated 24th February 1994. Nowhere in that letter is it stated that he was acting with the view of promotion. The first paragraph is very instructive on this point and it reads: - "/ am pleased to inform you that you have been appointed to act in the position of Assistant Chief Training Manager (T) vice the incumbent who is acting in a higher position from 18th October 1993 until further notice." Nowhere did the appellant lead evidence that this position changed. His submissions referred to at pages 143 and 161 is not evidence. The inclusion of allowances in his 3 months pay in lieu of notice cannot be used as support in arguing that the allowances should have been included in calculating his terminal benefits. The allowances were properly included in the 3 moths salary in lieu of notice because if he was allowed to serve 3 moths notice before his services were terminated instead of one day notice, he would have earned those : J7 : allowances but the same cannot be added up in calculating the terminal benefits. Terminal benefits are calculated on substantive position. The rejection of this claim by the learned trial judge was amply supported by the evidence and this ground is also dismissed. The 3rd ground of appeal is that the learned trial judge erred in not finding that the appellant was retired when he was holding the post of Assistant Chief Training Manager (T) as the appellant was never reverted back to his substantive post as the same was never communicated to him. In arguing this ground the appellant submits that clause 2.2 of ZIMCO Conditions of Service was not followed. Clause 2.2 of the ZIMCO Conditions of Service reads as follows: - “2.2 The employment or appointment shall initially be for a probation period as defined in Clause 1.0 of these conditions. Depending on performance of the employee the company will either confirm the employment or appointment. Until confirmation is given in writing by the company to the employee the employment shall be deemed to be probationary employment. ” We are unable to see how this clause helps the appellant. He was never written to that his acting appointment had been confirmed, it follows therefore that when his services were terminated his substantive post was that of Senior Lecturer and we cannot therefore fault the conclusion of the learned trial judge that the appellant’s services were terminated not when he was Assistant Chief training Officer so as to get the entitlements of that office but that he was still a Senior Lecturer. The ground of appeal also fails. The fourth ground of appeal is on appraisals resultant of which would be an increase in salary. The appellant argued that the learned trial judge erred in ignoring documents produced that proved that appraisals were conducted and that therefore the appellant was entitled to the increase in salary with effect from : J8 : 1st April 1994. The learned trial judge rejected this argument saying that the appellant never produced any document for showing that any one was paid any appraisal increment. It is a fact in the evidence that each year an appraisal was conducted but there is also evidence that although the appraisal was conducted for the year 1993/94, ZIMCO the holding company of the respondent stopped payments of the appraised salaries and that no one was paid for the period for which the appellant is claiming the same. The pages referred in the arguments by the appellants in the record of appeal do not show that payment was made. As the learned trial judge observed, if no one was paid, why should the appellant be the only one to be paid. On the interpretation by the appellant that since he was allowed to stay in the company house for 6 months after being retired, he was entitled to allowances payable during that period. This was a condition of service: but this condition did not state that during this period the appellant would be paid any allowance or salary. It had no connection to the terminal benefits. It merely gave him unnecessary benefit of the accommodation during which time he was supposed to look for his own accommodation to settle down. It did not entitle him to anything. We cannot therefore, on the evidence available, fault the learned trial judge’s findings of fact. The ground of appeal is dismissed. The last ground of appeal is that the learned trial judge erred in not recognizing that there were two (2) contracts of service; the first being when he was originally employed up to when he volunteered to retire and the second was from the period he volunteered to retire for the three years up to when the contract was breached by the respondent. We have already touched on the question of whether there was any three (3) year contract and we have said that there was no three (3) year contract. The joint recommendations by the Chief Mechanical and Technical Engineer and the General Manager (W) to the Director of Personnel and Administration was never accepted. Instead the two officers were asked to look for suitable officers to be trained by the appellant before he J9 retires. Further the letter turning down the appellant's request for voluntary retirement directed that the appellant continues working as usual until further advised. He was never advised otherwise, if he was, this evidence was not before the Court. The ground of appeal therefore also fails. The appeal therefore totally fails. It is the usual practice that costs follow the event unless there are good reasons for not ordering so. We have looked at the conduct of the appellant; he genuinely believed that he was entitled to the claims and his conduct does not show that he wanted to litigate for the sake of it. He genuinely misinterpreted the documents. We also bear in mind that the appellant is now a retiree having served the respondent for over 26 years. We think that this is a proper case to order that each party bears its own costs and this we do order. M. M. S. W. Ngulube CHIEF JUSTICE D. K. Chlrwa SUPREME COURT JUDGE