George Kalema and 2 Ors v Ignatius Munyati (Appeal No. 158/2021) [2023] ZMCA 438 (29 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 158/2021 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: GEORGE KALEMA JUSTIN MOOBOLA JOYCETEMBO 1 ST APPELLANT 2ND APPELLANT 3Ro APPELLANT (Appellants sued in their capacity as Executive Officers and Trustee in the United National Union of Private Security Employees (UNUPSE) AND IGNATIUS MUNYATI RESPONDENT Coram: Siavwapa, JP, Chishimba and Banda-Bobo, JJA. On 22nd August, 2023 and 29th August, 2023 For the Appellants: In Person For the Respondent: In Person JUDGMENT BANDA-BOBO JA, delivered the Judgment of the Court Cases referred to: 1. Water Wells Limited v Wilson Samuel Jackson (1984) ZR 98 2. Kitwe City Council v William Nguni (2005) Z. R. 57 3 . Wilson Masauso Zulu v Avondale Housing Project ( 1982) Z. R. 172 (SC) 4. Attorney-General v Marcus Kampumpe Achiume (S. C. Z Judgment No.2 of 1983) J2 5. Mohamed v Attorney-General (1982) ZR 49 (S. C.) 6. Murray Roberts Construction Limited and Khaddourra Construction Limited v Lusaka Premier Health Limited Appeal No.141/2016 7. Minister of Home Affairs, the Attorney - General vs Lee Habasonda (on his own behalf and on behalf of SACCORD) (2007) Z. R. 207 Other Legislation • The High Court Rules Chapter 27 of the Laws of Zambia • The Employment Act cap 268 of the Laws of Zambia 1.0. INTRODUCTION 1.1 This is an appeal against the Judgement of the High Court, Industrial Relations Division, delivered by the Honourable Judge E. Mwansa on 21 st May, 2021. 2.0. BACKGROUND 2.1 The brief background to this matter is that the Respondent was employed by the United National Union of Private Security employees on 10th June, 2013 as an Administrative Assistant. On 12 th February, 2014 he was promoted to the position of Director Organization. In the notice of complaint, he submitted that he was wrongly declared redundant on 6 th December, 2016. He sought the following orders: (1). Payment of salaries after being declared redundant as the redundancy benefits have not been paid; J3 (2). Payment of redundancy benefits using the correct basic salary rate which was K2, 700 and not (3). (4). K2,300 Payment of Transport Allowance Payment of Christmas bonus for the year 2016 at 100% (5). Payment of salaries underpaid from January to December, 2016; and (6). Costs and any other benefits the Court may order. 2.2 The Appellants' answer to the complaint was that the Complainant was declared redundant after the union saw that they would experience financial difficulties, and decided to undertake all necessary procedures to declare employees redundant to avoid a crisis. The Appellants further responded that the formula used in calculating the Respondent's redundancy was approved by the Labour Commissioner and was thus correct. The Appellants denied all the Respondent's claims as being unsubstantiated. J4 3.0. DECISION OF THE LOWER COURT 3.1 In his Judgment, the learned Judge noted that the Appellants did not attend Court. 3.2 He proceeded to receive evidence from the Respondent as he had satisfied himself that service was proper and effective. 3.3 The learned Judge then proceeded to declare that the Respondent was entitled to payment of salaries after he was declared redundant up until March, 2020. He ordered that the redundancy pay be recalculated based on K2,300.00 which was used without cause. He awarded the Respondent transport costs and that Christmas bonus for the year 2016, be paid at 100% of the basic pay. Lastly, he ordered that the salaries underpaid by K400.00 for twelve months be paid. 3.4 He further ordered that the adjudged amounts attract an interest at the Bank of Zambia short term deposit rate from 3 rd March, 2017 to date of Judgement and thereafter at 6% per year to the date of complete settlement. He referred the matter to the Registrar for assessment of the amounts found due. JS 4 .0. THE APPEAL 4.1 The Appellants, dissatisfied with the Judgment of the lower Court, have now appealed to this Court on the following two grounds : 1. GROUND ONE a) The Court below erred on facts and on law by passing Judgment in favour of the Complainant without taking into account the Respondents affidavit in support of answer evidence filed before Court on 21 st April 2017 thereby awarding the reliefs for which the Complainant is not entitled to; b) Despite the Respondents' application to arrest the Judgment so that the matter could be heard and determined on its merits, the Court below erred by proceeding with its Judgment, denying the Respondents, now the Appellants of the opportunity to be heard. The Court below neglected to apply of the principles of natural justice thus Audi Alteram Partem; J6 c) The learned Judge erred in law and fact by failing to grant the application to arrest Ruling and later the application to Stay execution pending hearing and determination of an application to set aside Judgment made in absence of the Respondents so as to facilitate a fair hearing of the Respondents in the matter; and d) The Respondents were entitled to a hearing in addition to the affidavit evidence filed, which hearings were also denied, a situation that leaves much to be desired. 2. Ground Two a) The Court below fell in error when it failed to recognize that the Complainant's redundancy package was calculated and paid out in the same month he was declared redundant but the Complainant refused to receive his package at his own volition alleging that the entire redundancy was not done in good faith and was not willing to receive his package. J7 b) The trial Court also erred by failing to take cognizance that the Complainant's emoluments were communicated to by letter each time, which letters stipulated what he was entitled to, and redundancy package was paid according to that entitlement. c) Furthermore, the Court below erred when it ordered that the Complainant's redundancy package should be recalculated on a higher basic pay without considering that the higher basic pay the Complainant claimed, he was not entitled to it and he never got paid any such higher pay in his employment life with the Union. d)The trial Judge erred when he failed to consider that the payroll of any institution is run only once every month and the Complainant exhibited two pay slips for the same month of January, 2016 a situation that shows the other pay slip is a false document and ought to have been put to strict scrutiny and proof during trial. 5.0. ARGUMENTS IN SUPPORT J8 5.1 The Appellants who are in person, filed heads of argument on 27 th May, 2021, and submitted in ground one that the trial Court should not have passed Judgment in favour of the Complainant without considering the Respondent's Answer to the complaint filed into Court on 21 st April, 2017. The Appellants acknowledged that by the end of November, 2015 the Respondent was offered a conditional salary increase which was to take effect in January, 2016 but that before this could be effected, the offer was withdrawn due to financial difficulties the Appellants experienced. The Appellants submitted that in order to survive this setback the Union earmarked some posts that would be phased out. 5.2 The Appellants contended that because of the financial crisis the Union was experiencing it was unable to pay Christmas bonuses. They argued that a bonus was an extra amount of money that was added to a payment and therefore it was subjected to qualifications and was thus paid at discretion. That in the present case, the Union was not in a position to have paid bonuses and hence its pursuit to scale down its work force by way of redundancies. They thus prayed that this Order be quashed. J9 5.3 As regards the award of transport allowance, the Appellants submitted that the Respondent was never confirmed in the position he was offered but was re-engaged in a different capacity as Regional Secretary which position entitled him only to basic pay of K2,300 and 30% housing allowance of K690.00. That the issue of transport allowance only arose after he was made redundant. 5.4 The Appellants submitted that the Court failed to observe that the Respondent's terms of employment were above the minimum wage and conditions of employment. They prayed that the Order to pay transport allowance be quashed. 5.5 The Appellants argued that despite their application to arrest Judgment in order for the matter to be heard and determined on its merits, the Court proceeded to deliver judgment, thereby denying the Appellants the opportunity to be heard. 5.6 Further, they contended that the learned Judge failed to exercise his discretion fairly and properly when he refused to give them an opportunity to be heard as per Order 35 Rule 5 of the High Court Rules Chapter 27 of the Laws of Zambia and the case of Water Wells Limited v Wilson Samuel Jackson 1 . J10 5.7 In ground two the Appellants submitted that the Court fell into grave error when it failed to recognize that the Respondent's redundancy package was calculated and paid out in the same month he was declared redundant as evidenced on page 52 -58 of the record of appeal. 5.8 The Appellants argued that the Respondent was not entitled to be paid salaries until March 2020 as ordered by the lower court because he was paid his redundancy package in accordance with Section 26B of the Employment Act, cap 268 of the Laws of Zambia. 5.9 To buttress the foregoing principle, reference was made to the case of Kitwe City Council v William Nguni2 . The Appellants submitted that the Respondent was made redundant in November, 2016 and that it would be unjust and unreasonable to pay salaries for a period he was off the payroll after being made redundant. They submitted that the Order to pay salaries up until March, 2020 be quashed. 5.10 They also prayed that the Order to recalculate the Respondent's package at a higher salary be quashed because the Court failed to recognize that one of the pay slips exhibited was false. Jll 5.11 They argued that the Union only ran its payroll once; and therefore, it could not have generated two pay slips for January 2016. Further, that the Union did away with manual pay slips in January, 2016 and that they did not recognize manual pay slips as exhibited. 5.12 The Appellants submitted that this claim was frivolous and vexatious and should not be entertained by this honorable court. 5.13 In conclusion, the Appellants submit ted that this Court ought to set aside the lower Court's Judgment for being inconsistent with the law. They submitted that this appeal has merit and it should be allowed with costs. 6.0. ARGUMENTS IN OPPOSTION 6.1 The Respondent did not file heads of argument on record. 7.0. HEARING 7.1 The Appellants Justin Moobola and George Kalema were in person. Mr. Kalema submitted that the Appellants filed heads of arguments on 22 nd July, 2021 and relied on the documents before Court. 7 .2 Mr. Munyati, the Respondent was also in person. He made an application for leave to file his heads of argument out of time. Mr. J12 Munyati submitted that the reasons he did not file his heads of arguments within the stipulated time was that, in the Industrial Relations Court, he was accustomed to the Court informing litigants of when they would appear. 7 .2 The Court made a Ruling on the Respondent's application and ruled that the Respondent's delay was inordinate and the application was dismissed. There were therefore, no arguments in opposition filed. 8.0. ANALYSIS AND DECISION OF THIS COURT 8.1 We have carefully perused the record of appeal, the impugned Judgment and the submissions. The issue for resolution in this matter is whether the learned Judge can be faulted for proceeding to render Judgment without due consideration of the Appellants' answer to the complaint, which was on record. A secondary issue is whether the Judgment rendered by the Judge was 1n compliance with the set principles on judgment writing. 8.2 Having perused the record of appeal and considered the Judgment of the Court below and the submissions filed by the Appellant, we are also of the view that both grounds relate to J13 upsetting the findings of fact by the trial Judge and should be argued together as they are inter related. 8.3 The main contention is that the Judge in the Court below erred by passing Judgment in favour of the Respondent without considering the Respondent's answer to the complaint which was filed on the 21 st of April, 2017. It is trite that Courts are enjoined to hear all parties in a matter and determine all issues in controversy. 8.4 In the case of Wilson Masauso Zulu v Avondale Housing Project3 the Supreme Court observed that: "All these matters called for adjudication but, unfortunately, were left undetermined. I would express the hope that trial courts will always bear in mind that it is their duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. "(emphasis by this Court) 8.5 Further, in the case of Attorney-General v Marcus Kapumpe Achiume 4 the Supreme Court held: • • J14 "An unbalanced evaluation of the evidence, where only the flaws of one side but not the other are considered, is a misdirection which no trial Court should make, and entitles the appeal Court to interfere." 8.6 The Supreme Court has provided guidance on when an appellate Court can reverse findings of fact by a lower Court. This was in the case of Mohamed v Attorney-Generals, where Ngulube, DCJ, as he then was, held inter alia that: "The appellate Court may draw its own inferences in opposition to those drawn by the trial Court although it may not lightly reverse the findings of primary facts." 8.7 On the basis of the evidence on record we opine that there was a misdirection on the part of the learned Judge when he found in favour of the Respondent. We accept the Appellants' submissions that in this case the trial Judge did not consider the Appellants' answer to the complaint, despite their absence. Our view is that the trial Judge expeditiously rendered his Judgment and did not cast his mind to the contents of the Answer on record. In the process, he failed to give reasons why he did not consider the evidence of the Appellants on record. • .. J15 8.8 A perusal of the Judgment at page 16, lines 10-15 shows that the Judge merely said that: "On the return date, the Complainant was in Court but the Respondents were not. Having satisfied myself that service was proper and effective, I proceeded to receive evidence from the Complainant." There is nowhere where he revealed his mind for adjudicating as he did. 8.9 The record of appeal at page 107, lines 10-15 shows that the return date was 7th May, 2021. The Respondents filed their affidavit in support of answer on 21 st April, 201 7. Judgement was rendered on 21st May, 2021. Clearly the Answer was on record and he ought to have considered its contents. 8.10 It is trite that civil procedure is predicated on the observance of the rules of procedure and that at all times there must be a fair hearing for all parties. It was imperative for all parties to be treated transparently and given an opportunity to be heard. The case of Murray Roberts Construction Limited and Khaddourra Construction Limited v Lusaka Premier Health Limited6 held that the inherent jurisdiction of a trial Court must not be exercised J16 willy nilly but with caution and judiciously. We adopt this principle. 8.11 In casu, it is clear that the Judge failed to cast his mind to the evidence on record by not considering the Respondents' Answer. A perusal of the Answer particularly at paragraphs 5-11 reveals that the Appellants did address some of the issues in controversy, such as what the correct amounts that ought to have been used in calculating the redundancy formula was and the issue of transport allowance including Christmas bonus. They also, stated that the Respondent had been paid his redundancy package, using the correct formula as approved by the Labour Commissioner. These are issues the Judge needed to interrogate even in the absence of the Appellants or Respondent herein at trial. Had the Judge cast his mind to the contents in the Answer, we opine that he would not have arrived at the conclusion he did. His approach was not balanced. 8.12 Further, we are of the considered view that allowing the Appellants to be heard on this matter would not have prejudiced the Respondent, as per the case of Water Wells Limited v Wilson Samuel Jackson (supra), where the Supreme Court held that: .. J17 "If no prejudice will be caused to a Plaintiff by allowing the defendant to defend the claim, the action should be allowed to go to trial". 8.13 Our view is that there were answers to the complaint which the lower Court could have looked at to come to a proper determination of the matter. We opine that the lower Court's Judgment failed to meet the standards as encapsulated in the case of the Minister of Home Affairs, the Attorney - General vs Lee Habasonda (on his · own behalf and on behalf of SACCORD)7, by the Supreme Court where it was held, inter alia, that: "Every Judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the Court on the facts and the application of the law and authorities if any, to the facts." 8.14 Therefore, failure by the trial Court to give reasons on how it arrived at its Judgment in the presence of the Answer made the Judgment fatally flawed. • • J18 8.15 In addition, we echo the holding in the case of Wilson Masauso Zulu v Avondale Housing Project (supra) where it was held that it is the duty of Courts to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. In casu, the refusal by the trial Judge to hear the Appellants' application and the fact that the Appellants' Answer was not considered was a miscarriage of justice. 8.16 This appeal is meritorious and we set aside the impugned Judgment. We order that the matter goes back for re-trial before another High Court Judge, Industrial Division. Each party shall bear own costs. --------------------J _____________________________ _ M. J. SIAVWAPA JUDGE PRESIDENT F . M. CHISHIMBA ----------~----------- A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE