Yambayamba v Attorney General and Anor (Appeal 26 of 2012) [2015] ZMSC 186 (20 August 2015)

JI SCZ Judgment No. 26 of 2015 P. 680 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 026/2012 SCZ/8/004/2012 (Civil Jurisdiction) BETWEEN: GILES YAMBAYAMBA APPELLANT AND ATTORNEY GENERAL NATIONAL ASSEMBLY OF ZAMBIA 1st RESPONDENT 2nd RESPONDENT Coram: Mwanamwambwa, Ag. DCJ, Muyovwe and Malila, JJS on 3rd March, 2015 and 20th August, 2015 For the Appellant: Mr. C. Chonta, Messrs. Chonta Musaila and Pindani For the Respondent: Mrs. M. M. Kawimbe, Deputy Chief State Advocate with Mrs. Salome Chomba, Assistant Senior State Advocate, Attorney General’s Chambers JUDGMENT MALILA, JS, delivered the Judgment of the Court. Cases referred to: 1. DPP v. Ngulube SCZ Judgment No. 5 of 1975 2. Attorney General v. Marcus Kapambwe Achiume (1983) ZR 1 3. Philip Mhango v. Dorothy Ngulube and Others (1983) ZR 61 4. Zulu v. Avondale Housing Project Ltd. (1982) ZR 173 5. Nkata and 4 others v. Attorney General (1966) ZR 124 6. Zambia Consolidated Copper Mines v. James Matale (1996) ZR 144 7. Southern Water and Sewerage Company v. Sanford Mweene SCZ/8/307/2006 8. Redrilza Ltd v. Abuid Nkazi & 4 Others, Appeal No. 101 of2009 9. Constantine Line v. Imperial Smelting Corporation (1942) AC 154 J2 P. 681 10. 11. 12. 13. 14. Anderson Kambela Mazoka &Others v. Levy Patrick Mwanawasa & Others, SCZ/EP/01/02/03/2002 Josephine Mwaka Mtuambazi v. Food Reserve Agency (Appeal No. 128/2009) Attorney General v. Kakoma (1975) ZR 216 Zambia Privatization Agency v. Matale (1995-1997) ZR 157 National Airports Corporation Ltd. v. Regie Ephraim Zimba and Savior Konie (2000) ZR 155 Other authorities referred to: 1. Phipson on Evidence, by M. N. Howard, Peter Craine, Daniel A. Hochberg UK Sweet & Maxwell, 1990 14th edition, paragraph 402 at page 50 2. Section 85(5) of the Industrial and Labour Relations Act, chapter 269 of the laws of Zambia The appellant was employed by the second respondent as Motel Manager in 1996 and served as such for a period of 13 years before his relationship with his employer began to fracture. Among his duties as Motel Manager, the appellant was enjoined to provide good and reasonable services to members of Parliament who reside at the Motel and, generally to run the Motel in an efficient and effective manner. Things began to take a turn for the worse when in 2008, the appellant began to receive complaints over poor DSTV signals in some rooms at the Motel. He was summoned to the office of the Clerk of the 2nd respondent in February 2009 to discuss the poor DSTV signal at the Motel. J3 P. 682 In a heated altercation with the Clerk, the appellant was labeled as ‘stupid’ and urged to resign or face dismissal. The appellant explained that in his quest to avert the problem of the poor signal, he had entered into communication with the Assistant Clerk and the Principal Clerk (ICI) regarding the issue. On 23rd February, 2009, the appellant received a letter from the Clerk directing the appellant to exculpate himself regarding his actions towards addressing the faulty DSTV transmission at the Motel; why this had not been brought to her attention, and why disciplinary action could not be taken against him. In a letter addressed to the Clerk, the appellant explained himself in regard to the charges preferred against him. The appellant was, nonetheless, on the 16th of March, 2009, charged and found guilty of the offence of unsatisfactory work performance contrary to paragraphs 40, 41 and 42 of the National Assembly Disciplinary Code of Conduct and given a severe warning to be in effect for a period of six (6) months. Considering this to be grossly unfair, the appellant appealed this decision administratively to the Deputy Clerk, who was the J4 P. 683 Chairman of the Staff Appeals Committee. In the appellant’s estimation, even if he were guilty as charged, the sentence meted out was too severe as the offence alleged attracted only a written warning for first breach. The appellant then received another letter from his immediate supervisor stating that his appeal in the Deputy Clerk, against the decision of the Clerk, amounted to insubordination as the decision appealed against was that of the Clerk. The appellant then consulted his lawyers and instructed them to write a suitable letter to the 2nd respondent, asking the 2nd respondent to be considerate with him. The 2nd respondent however, could have none of that. In response to his appeal, the 2nd respondent, by letter dated 1st April, 2009, dismissed the appeal as lacking merit. This in turn prompted the appellant to move the Industrial Relations Court in June 2009, seeking, in the main, the following reliefs: (i) An order that the punishment meted out on him be lifted immediately for being unlawful, unfair and null and void. (ii) Alternatively, and in view of the unfriendly work atmosphere, an order that he be retired with full pay. J5 P. 684 It would appear that following his lodgment of the complaint in the Industrial relations Court, things moved fairly quickly against the appellant. On the 1st July, 2009, the 2nd respondent invoked the provisions of clause 2.5 (a) of the National Assembly Conditions of Service and terminated the appellant’s services. His accrued benefits, less amounts owed to the 2nd respondent were promptly computed and paid to him, so that in its answer filed in the Industrial Relations Court barely a week after the termination of the appellant’s employment, the 2nd respondent, paucis verbis, averred that the appellant was no longer an employee of the 2nd respondent and all his dues had been paid. Undeterred by this development, the appellant took out summons to amend the notice of complaint. Subsequently, the amended complaint indicated the reliefs sought by the appellant as follows: “(i) A declaratory order that the severe warning imposed upon the complainant was wrongful, unlawful and null and void. (iii) A declaration that the termination of the Complainant’s employment is wrongful, unlawful, unfair and null and void. J6 P. 685 (iv) An order that the Complainant be deemed to have retired at the age of 55 years and be paid full retirement benefits; or alternatively, that he be considered to have been retired at fifteen (15) years of service and that he be paid the requisite retirement benefits (v) Punitive damages (vi) Further or other reliefs (vii) Costs.” In the lower court, the appellant did not challenge the validity of the termination clause invoked by the 2nd respondent, but implored the court to take note of the aggregate of circumstances and hold that his was not an ordinary termination of employment, but a dismissal disguised under a termination clause. After hearing the evidence before it, the Industrial Relations Court framed the issue for determination as being whether or not the termination of the appellant’s employment was unfair, wrongful, unlawful and therefore null and void. After reviewing numerous authorities on the power of the Industrial Relations Court, in its quest to do substantial justice to veer beyond the apparent reasons for an employer terminating the services of an employee, the court came to the conclusion that the J7 P. 686 2nd respondent’s invoking of its right to terminate the employment contract under clause 2.5 (a) of the National Assembly Conditions of Service could not be faulted. Consequently, the appellant’s claim failed. Disenchanted by that decision, the appellant appealed to this court fronting two grounds as follows: “GROUND ONE The Industrial Relations Court erred in law and in fact in making a finding that there was no basis for the court to delve behind or into the reasons for termination of the Appellant’s contract of employment when there was overwhelming uncontroverted evidence to show that the termination was actuated by malice or ulterior motives. GROUND TWO The Industrial Relations Court erred in law and in fact in refusing to order that the Appellant be deemed to have either served for at least 15 years or to have reached the retirement age of 55 and award him retirement benefits accordingly.” At the hearing of the appeal, both parties relied on the heads of argument filed. Both learned counsel supplemented these with brief oral submissions. J8 P. 687 As regards ground one, Mr. Chonta, learned counsel for the appellant, alleged a misdirection on the part of the lower court in holding that there was no basis for the court to delve behind or peer into the reasons for termination of the appellant’s contract of employment. According to Mr. Chonta, there was overwhelming uncontroverted evidence on record showing that the termination of the appellant’s employment was actuated by malice or ulterior motives. After recounting the facts in nearly two pages, Mr. Chonta then took us through the authorities on the settled position that as an appellate court we, as a general rule, will not entertain appeals premised on points of fact only. Furthermore, there is a duty on the part of a trial court to evaluate evidence in a balanced way. In this connection, the cases of DPP v. Ngulube1, Attorney General v. Marcus Kapambwe Achiume2, Philip Mhango v. Dorothy Ngulube and Others3, Zulu v. Avondale Housing Project Ltd.4 and Nkata and 4 others v. Attorney General5, were cited. J9 P. 688 Mr. Chonta next referred to the line of case authorities that have enjoined the Industrial Relations Court to delve behind the real reason for a termination. He cited the cases of Zambia Consolidated Copper Mines v. James Matale6, Southern Water and Sewerage Company v. Sanford Mweene7 and that of Redrilza Ltd v. Abuid Nkazi & 4 Others.8 Mr. Chonta’s main argument, as we understand it, on this ground was that the evidence adduced by the appellant in the lower court showed that there were underlying reasons which prompted the invoking by the respondent of the termination clause so that the use of the termination clause veiled those real reasons for the termination. The court should have gone behind that veil and considered whether those reasons in themselves justified the termination of the appellant’s employment. Refusal by the trial court to peer behind the termination clause, was in Mr. Chonta’s estimation, a demonstrably wrong approach and consequently a misdirection. Mr. Chonta complained that in coming to the conclusion that there was not sufficient evidence to persuade the trial court to pierce the veil, the court made no attempt to explain why it came J10 P. 689 to the conclusion. In any case, the court did not make correct inferences from the evidence before it. In responding to the arguments under this ground, Mrs. Kawimbe, learned Deputy Chief State Advocate, supported the trial court in recognizing the employer’s right and prerogative to terminate by notice or payment in lieu thereof, its employee’s services without having to assign reasons. According to Mrs. Kawimbe, the appellant failed to adduce evidence when asked to substantiate his claims of malice on the part of the 2nd respondent, in both examination in chief and under cross examination. She referred us to a passage in the record of appeal where, in answer to a question whether he had proof that upon receiving court process the 2nd respondent terminated his employment, the appellant responded in the negative. Citing Phipson on Evidence1, the learned counsel posited that the burden of proof lay on the appellant in the lower court to show that there was indeed malice on the part of the 2 nd respondent in terminating his employment. In this connection, the appellant failed lamentably to discharge that onus. The learned -Ill P. 690 counsel also cited the cases of Constantine Line v. Imperial Smelting Corporation9, and Anderson Kambela Mazoka & Others v. Levy Patrick Mwanawasa & Others10, to fortify her submission on the burden of proof. It was on this basis that Mrs. Kawimbe prayed that ground one of the appeal be dismissed. We have considered the evidence on record adduced in the lower court, the judgment of the court as well as the competing arguments of counsel relative to ground one. Amidst the clash of arguments by the learned counsel for the parties, we have to determine the question whether the lower court was, on the facts as presented to it, obliged to look behind the termination clause and find another reason for the termination of the appellant’s employment. The trial court approached the issue of the termination of the appellant’s employment from the premise that although a termination clause in the contract of employment was invoked, the court had power to delve into or behind the reasons given for the termination in order to redress any real injustices discovered. In J12 P. 691 this regard, the lower court considered the case of Zambia Consolidated Copper Mines v. James Matale6 in which it was held that there is nothing in the Industrial and Labour Relations Act No. 27 of 1993 to stop the court from delving into or behind the reasons given for termination if to do so would enable the court to redress any injustices occasioned to the employee. The court also, quite advisedly, referred to other authorities such as Southern Water and Sewerage Co. Ltd v. Sanford Mweene7 where it was held that: “the fact that there is a notice clause for terminating a contract without giving reasons does not debar the Industrial Relations Court form looking behind the termination to ascertain if some injustice was done by the employer when invoking the termination clause. This is the discretion that the Industrial Relations Court invoked in this case and the court was in this respect on firm ground using this discretion.” The lower court also referred to Section 85(5) of the Industrial and Labour Relations Act, chapter 269 of the Laws of Zambia, which enjoins it to do substantial justice between the parties before it without being bogged down by the rules of evidence. The lower court was also not unmindful of the case of J13 P. 692 Josephine Mwaka Mwambazi v. Food Reserve Agency11,where the Supreme Court held that: “where evidence is led that brings to the fore ulterior motives behind the termination of employment, the court can go behind the notice to ascertain the real reason behind the termination.” The lower court furthermore referred to the caution that we gave in the case of Redrilza Ltd v. Abuid Nkazi and Others8 that while the Industrial Relations Court is empowered to pierce the veil, this must be exercised judiciously and in specific cases where it is apparent that the employer is invoking the termination clause out of malice. Having alluded to all these authorities, the trial court then had to answer the question it had earlier posed for itself in the following terms: “we have asked ourselves whether the facts of this case merit the court to pierce the veil and go behind the reasons for termination. The termination clause notwithstanding, the fact that the Respondent had the option available to them, was this a mere smoke screen to mask the true reasons for termination as contended by Mr. Mambwe?” Elsewhere in its judgment, the lower court stated that: J14 P. 693 “we have agonized over the arguments and evidence before us. Should we pierce the veil? ..... we have pondered over the evidence before us. We are not persuaded by the evidence that the termination was actuated by malice. The hostilities are in our view not persuasive or sufficient to warrant us to piece the veil.” Mr. Chonta argues that the lower court did not evaluate the evidence properly when it came to the conclusion that it was not persuaded sufficiently to move it to exercise its discretion to pierce the veil. Mrs. Kawimbe maintained that there was no evidence of malice adduced. In our view, there are two key points that should be borne in mind in deciding whether or not the Industrial Relations Court, in determining a wrongful termination dispute, should peer behind a termination provision to discover, as it were, the real reason for the termination. First, there should be sufficient evidence laid before the court to suggest that the termination of the employee’s contract of employment was motivated by other considerations quite apart from the employer’s power to terminate the contract as set out in the conditions of service. Here, the question is largely factual. Evidence ought to be led, and it is for the trial court to evaluate such evidence. Second, it should be understood that J15 P. 694 whether or not the trial court will be motivated to leave aside what is ex facie a proper contractual position, that is, termination of a contract of employment using a termination clause in the contract, and look behind the termination provision, will entail the use by the court of its discretion. In other words, there is no obligation on the part of the court to routinely pierce the veil in every case before it where a termination through a termination clause was made. Turning to the first of these factors, we perceive the appellant’s appeal on this ground as comprising largely challenges to findings of fact. To hold that there was no malice is essentially to make a factual finding. As we guided in Attorney General v. Kakoma12: “a court is entitled to make findings of fact where the parties advance directly conflicts stories and the court must make those findings on the evidence before it having seen and heard witnesses giving that evidence.” Clearly then, ascription of probative value to evidence of witnesses is preeminently the business of the trial court which saw and heard the witnesses. In the present case, having heard the witnesses, the trial court was not persuaded that the appellant J16 P. 695 had proved, on the balance of probabilities, that his dismissal was actuated by malice or that there was any other basis other than the invoking of a contractual position. We take full note that the disciplinary proceedings that had been commenced against the appellant had at the time of the termination been concluded. We have already stated that whether or not the court is in a particular case, to look behind the notice clause for termination of a contract of employment, calls for a good deal of judicial discretion. We pointed this out in the cases of Southern Water &Sewerage Co. Ltd v. Sanford Mweene7 and Redrilza Ltd. v. Abuid Nkazi & Others8 which we have earlier alluded to. Judicial discretion is a sacred power which inheres in the court. It is an amour which the court should employ judicially and judiciously to arrive at a just decision. The exercise of the same should not be left to the whims and caprices of a party to an action. In cases involving the exercise of judicial discretion such as the present one, it should be noted that the facts of two cases are never always the same. This court does not, therefore, make it a practice to lay down rules or principles to fetter the exercise of discretion. A court cannot be bound by a previous decision to exercise J17 P. 696 discretion in a regimented way, because that would be, as it were, putting an end to discretion. Applying these principles to the judgment of the lower court, it does not seem to us to be a correct criticism of that judgment that the court did not, in determining whether or not malice was proved, make a proper evaluation of the evidence, or that its exercise of discretion against the appellant’s position necessarily became a misdirection. As we have indicated already, the court was not persuaded by the available evidence to accede to the appellant’s prayer to look beyond what was a contractual entitlement in the termination of his contract. We do not think the lower court can be faulted in coming to the decision that it did. Ground one is bound to fail. Under ground two, the appellant alleges a misdirection on the part of the lower court in declining to grant an order that the appellant be deemed to have either served for at least 15 years or to have reached the retirement age of 55 for purposes of the appellant accessing benefits. In arguing this ground, the learned counsel for the appellant referred to Section 85(5) of the J18 P. 697 Industrial and Labour Relations Act which exempts the court from being unduly asphyxiated by rules of evidence in its quest to do substantial justice. After making repeated reference to the fact that a court has power to delve behind or into reasons given for termination in order to redress any real injustice discovered, the learned counsel implored us, based on the case of Zambia Consolidated Copper Mines v. James Matale6, to deem the appellant to have retired at 55 years of age or to have retired after 15 years of service. Mrs. Kawimbe, for the respondent, countered the appellant’s argument on this ground by arguing in the first place that where an employee’s employment is terminated wrongfully, such employee would only be entitled to damages. For this proposition, the learned counsel cited the case of Zambia Privatization Agency v. James Matale13 where the court stated that: “The Industrial Relations Court misdirected itself by applying the wrong measure of damages for unlawful termination of contract, the correct measure being a reasonable period of notice as opposed to payment of balance of unserved period of the contract of employment.” J19 P.698 According to Mrs. Kawimbe, the appellant cannot claim either a retirement package as if he had reached 5 years or one given for 15 years’ service since he neither retired at 55 nor did he serve 15 years. Second, Mrs. Kawimbe contended that there was no legal basis for the appellant to make this claim. To us, the appellant appears, by this ground, to be challenging the basis of his separation from the 2nd respondent’s employ and, therefore, the computation of his entitlement on separation. There is in this jurisdiction sufficient legal authority to provide guidance in the computation of dues when an employee’s contract of employment is terminated. We must make two observations in this respect. First, computation of the employee’s separation package remains predominantly a contractual matter. Where the contract of employment specifies the formula to be employed, that formula, provided it is not unconscionable, will be used to ascertain the employee’s separation package. Second, there is no general right for an employee to be ‘deemed’ to have done or attained anything. Any allusion to ‘deeming’ can only be a convenient term employed by a court considering an award to be made of damages or compensation to an employee, which damages J20 P. 699 or compensation may, in any case, be assessed without reference to the term ‘deem’ or ‘deeming’. Where a contract of employment contains a provision for termination on notice, the computation of the dues to the employee will be with reference to the notice period. In our view, there can never be payment to an employee leaving employment on account of termination of his services through a termination clause, of benefits for the unserved portion of his employment. In National Airports Corporation Ltd. v. Regie Ephraim Zimba and Savior Konie14, we reiterated the point that the proper estimate of damages due to an employee whose services have been terminated under a termination clause, is the payment equivalent to the period of the relevant notice. In that case, the employee was offered a two year contract as Managing Director from 1st September, 1990. Just over for months into the contract period, his contract was terminated. The contract provided that ‘‘if the employer terminates the contract prematurely for reasons other than the incompetence or willful neglect of duty, all the benefits under the contract shall be paid as if the contract J21 P.700 had run the full term.” As it turned out, the employee’s employment in that case was terminated for reasons totally unrelated to his performance. Even on those facts, we had no difficulty in holding that the employee could not be ‘deemed’ to have served the remainder of his contract for purposes of computing his separation dues. We held that the provision in the contract as well as the proposed computation of the separation package were unconscionable. We said at page 158 that: “In this case, the damages should relate only to the period of three months of salary and perquisites and any other accrued benefits such gratuity over that period. We find and hold that the phrase invoked so as to pay damages as if the contract had run its full course offends the rules which were first propounded as proposition by Lord Dunedin in Dunlop Pneumatic Tyre Company Ltd. v. New Garage and Motor Company (1915) AC 79, especially that the resulting sum stipulated for is in effect bound to be extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed the breach.” We have deliberately referred to the extreme position where an express contractual provision allowed recovery of benefits as a result of ‘deeming’, and where a breach in the termination of the contract of employment was found. Neither situation exists in the J22 P. 701 present case. The prospects of the appellant being ‘deemed’ can, therefore, only be far removed from consideration. In the present case, the appellant’s terminal benefits were computed and paid to him. He has not raised issue with the computation of those benefits based on the fact that his employment was terminated through a termination clause. The grievance he has is that he be deemed to have been separated on a different basis and, therefore, to have a different formula for computing the separation package. We agree with the learned counsel for the respondents that there is no legal basis for this claim. Ground two is without merit. It is dismissed accordingly. The net result is that the whole appeal is dismissed. Costs shall follow the event, to be taxed in default of agreement. M. $. MWANAMWAMBWA AG. DEPUTY CHIEF JUSTICE E. N. C. MUYOVWE SUPREME COURT JUDGE M. MALILA, SC SUPREME COURT JUDGE