Hastings Mtine and Ors v Ncube (Appeal 223 of 2000) [2006] ZMSC 11 (11 May 2006)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL NO. 223/2000 BETWEEN: HASTINGS MTINE WILFRED MW ANZA LARRY N, PHIRI (Together carrying on business as KPMG Peat Marwick) And 1ST APPELLANT 2nd APPELLANT 3rd APPELLANT MARY THANDIWE NCUBE RESPONDENT CORAM: NGULUBE, CJ, CHA1LA (late), LEWANIKA, JJS On 4th September, 2001 and 11th May, 2006. For the Appellant: For the Respondent: W. B. Nyirenda of Ezugha, Musonda & Co. In Person. ___________________________ JUDGMENT______________ _ LEWANIKA, JS delivered the judgment of the court. We wish at the outset, to apologise for the delay in the deliveiy of this judgment but this was occasioned by circumstances beyond our control. Further, when we heard this appeal the late Mr. Justice CHAILA sat with us but following his unfortunate demise, this judgment is to be regarded as by the majority. This is an appeal against the decision of a Judge of the High Court who remitted an arbitral award for reconsideration by the arbitrators following an ‘appeal’ by the Respondent. The brief facts in this arbitration, which are not in dispute, are that the Appellants carry on business as certified accountants and in 1995 the Respondent was admitted to partnership with the existing partners. The Respondent signed a Deed of Accession by which she agreed to be bound by the terms and conditions of a partnership Deed dated the 1st January 1991, A memorandum dated 11th August 1995 from one W. B. KUMWENDA, one of the then existing partners, to the Respondent, and headed ‘Partnership Remuneration package’ reads, in part, as follows: "with reference to your admittance to partnership effective 1st July, 1995,1 confirm your position as a salaried partner on the following terms:- 1. Remuneration Your annual drawings will be equivalent of US dollars 4,100.00 per month. The drawings are subject to tax; 2. Period You will be admitted as an equity partner after a period of three years........” On the 23rd April, 1996, the Respondent wrote to H. MTINE, the senior partner, stating that she would be retiring from the partnership on 31st June, 1998. A dispute arose as to the date on which the Respondent left the partnership and what salary was to be paid to her and for what period. There was also a dispute relating to monies due to the Respondent as leave pay. Finally there was a dispute relating to a claim by the Respondent for payment of retirement benefits under Section 9 of the minimum wages and Conditions of Employment (General) Order made under Statutory Instrument No. 119 of 1997. These disputes were referred to arbitration and the arbitral award appears on pages 25 to 30 of the case record. The Respondent then made an application to the court pursuant to Section 14 of the Arbitration Act for the award to be remitted to the Arbitrators for reconsideration on the following grounds:- 1. That the Respondent being a salaried partner and having regard to all the facts which were placed before the arbitrators ought to be regarded as an employee and be paid the benefits due to her under the minimum Wages and Conditions of Employment (General) Order, 1997; 2. That the period of her employment until she became a salaried partner qualifies and the Respondent was entitled to be paid benefits under the said order and the arbitrators should so have held. 3. That even if the Respondent had not reached the age of 55 years, the retirement in both cases was with the approval and consent of the employer and consequently the benefits aforesaid are payable as is provided for under paragraph 9 of the schedule of the said minimum Wages and Employment (General) Order 1997. 4. That the arbitrators erred in calculating the leave pay in Kwacha instead of the US dollar or the Kwacha equivalent since this is the currency to which her salary was pegged. The learned trial Judge allowed the appeal and remitted the award to the arbitrators for reconsideration, hence the appeal before us. Counsel for the Appellants has filed six grounds of appeal, namely:- i) ii) That the learned trial Judge misdirected himself in law and fact when he remitted the award of the arbitrators dated 17 June, 1998 to the arbitrators for reconsideration on their findings as to law and fact; That the learned trial Judge misdirected himself in law and fact when he referred the matter for reconsideration by the arbitrators to clarify what amounted to arbitration fees and remuneration; iii) That the learned trial judge misdirected himself in law and fact when he ordered that the arbitrators reconsider the legal status of the Respondent whether or not she qualified to be regarded as an employee and paid benefits pursuant to Statutory Instrument No. 119 of 1997; iv) That the learned trial Judge misdirected himself in law and fact when he held that the Respondent’s appeal to the High Court was not frivolous or vexatious; v) That the learned trial Judge misdirected himself by holding that the leave computations were based on the Respondent’s status as an employee and could best be reconsidered in terms of her status as a partner, but went on to correctly hold that there had been no omission by the arbitrators in awarding the Respondent 17.5 days of pay in lieu of leave; vi) That the learned trial Judge was not clear in his holding on the issue of damages and misdirected himself on the matter. At the hearing of the appeal, Counsel for the Appellants relied on the heads of argument filed herein which he supplemented with oral submissions. The Respondent made oral submissions. In the view that we take of this appeal, we do not intend to set out the arguments that were advanced by Counsel for the Appellants and by the Respondent for the reasons that will be clear in our judgment. The issues raised in the action before the High Court and in the appeal before us were they very ones which were before the arbitrators. The arbitrators found that there was a partnership and that there were therefore no terminal benefits to be paid to the Respondent as a former employee. In ordering that the matter be sent back for the reconsideration of the arbitrators, the question arising was ‘when can an award be interfered with?’ Under Order 73 of the Supreme Court Practice an award can be challenged on the grounds of want of jurisdiction or serious irregularity and there can also be an appeal on a question of law arising out of an award. This case proceeded as if there is a general right of appeal of an unlimited nature from an arbitration. There is not. Even in arguing the appeal the parties ranged far and wide. In our view the critical issue was still whether there was a basis under Order 73, which reflects the old position at law for interfering with the award. In our considered opinion, there clearly was not. For the foregoing reasons we would allow the appeal and set aside the decision of t|ie court below and restore the Arbitrators award. We make no order as to costs here. M. M. W. S. Ngulube CHIEF JUSTICE D. M. Lewanika SUPREME COURT JUDGE 6