Hybrid Poultry Farm (Z) Ltd v Mwashonge (Appeal 207 of 2006) [2009] ZMSC 152 (20 November 2009)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 207/2006 BETWEEN? HYBRID POULTRY FARM (Z) LIMITED APPELLANT AND JOHN MWASHONGE RESPONDENT Coram: Chirwa, Silomba and Mushabati,. JJS May 2008 and 20th November 2009 For the Appellant : Mr C. Chota of Lewis Nathan Advocates For the Respondent : In Person JUDGMENT Chirwa, JS., delivered the Judgment of the court. Cases referred to:- 1. Kalenga M’poyou V Kane Mounourou [1979] Z. R. 211 2. National Airports Corporation Vs Zimba & Another [2000] Z. R 154 3. Mobil Oil Zambia Limited Vs Patel [1988-89] Z. R 12 When we heard this appeal, Mr Justice Mushabati was a member of the panel but has since retired from the bench. This Judgment, therefore, is judgment of the majority. -J2- The appeal arises from partial judgment obtained in the Industrial Relations Court by the respondent, JOHN MWASHONGE. In the Industrial Relations Court, the respondent claimed salary for the whole first contract; notice; gratuity; loss of salary; all accrued allowances; accrued leave days; damages and costs. The undisputed facts in this case are that the respondent was employed by the appellants, HYBRID POULTRY FARM (Z) LIMITED on a 2 year contract on 23rd December 2003 as a mechanic at a basic salary of K400,000 per month; tea allowance of K7,500; mealie meal allowance of K35,000 per month. Other conditions of service were 2.5 calendar days per month leave days; 50% of basic salary when proceeding on annual leave, 48 working hours spread at a period of 6 days. He was on probation for six months during which period, either party could terminate employment on two weeks notice and on confirmation, employment could be terminated on one month notice. The respondent and his family were also put on the appellants’ medical scheme. The respondent was further entitled to education -J3~ allowance of K700,000 per term for school going children between the ages of seven to eighteen; housing allowance where the company did not provide accommodation at 35% of basic salary; on satisfactory completion of the full term of the contract, gratuity of 8% of total basic earning. He was also entitled to K250,000 upon the death of spouse, biological child and legally registered dependants under the age of 18 years living with him and KI50,000 for parents as funeral grant. He was confirmed in his position on 10th June 2004. On 4th June 2004, while still on probation, he was transferred on promotion to a sister company VERINO at a monthly salary of K490,000. He was to be an assistant foreman logistics. "r Whilst working at VERINO he was, on 14th January 2005 offered a 2 year contract as an Assistant Workshop Foreman and this contract was back-dated to 3rd January 2004 at a salary of K657,500 per month. His leave entitlement was reduced to 2 calendar days per month. He was further subjected to medical examination to ascertain his suitability to work in a processing -J4- industry. All conditions remained the same. He accepted these conditions and continued working. On 4th January 2005, the respondent wrote the appellants to be paid his benefits under the first contract. He did not get any satisfactory answer to his request, and it is from here that the dispute arose. According to the respondent, when he asked to be paid his benefits on the first contract, he was threatened with dismissal and in fact the Human Resources Manager was instructed to dismiss him and was actually dismissed. But according to the appellant, the respondent was charged with three disciplinary offences namely:- (a) Refusal to carry out lawful instructions, the particulars being that on 28th January 2005 he was charged with a final warning for perpetual absenteeism but he refused to sign the warning letter which mounted to insubordination. (b) Incompetence, particulars were that on 31st January 2005, he was assigned to fit the alternator of the refrigerated container properly so that the fan belt can align correctly. He reported back to his supervisor that the belt could not align correctly unless a -J5- new alternator was bought but another mechanic was sent to do the same job and the job was done usiiig the same alternator. (c) Incompetence, particulars were that on 1st February 2005, he reported that Tata Registration No. ACG 2418 had a serious oil leak from the engine protection unit but when the engine was washed it was discovered that the tappets cover seals were not fitted properly and when the seals were cleared and correctly fitted back by another mechanic the leakage stopped. The respondent was asked to exculpate himself and he did exculpate himself. On the first charge, he admitted being away to Ndola to collect his certificates from Northern Technical College and his immediate boss was satisfied but was surprised to hear that there was a final warning letter written by someone else but this letter was never served on him. On the second charge he explained that the vehicle was alright until they put on an engine protector and that is when it developed oil leak and he made a report. He denied that he failed to repair the vehicle. On the third count he explained that when the problem of alternator was reported to him, he inspected the vehicle and found that the belt was not properly fixed but since the vehicle was loaded with chickens to be delivered to Kitwe, he -J6- instructed the driver what to do and when the vehicle came back he fitted it with a correct belt and it was alright. He duly reported to his boss. All in all he denied the charges. On receipt of the exculpatory letter, disciplinary committee meeting was convened to meet on 8th February 2005. The disciplinary committee meeting resolved to dismiss him and he was written to on the same day that his services were terminated. On the contract with Hybrid, the defence was that when the respondent was transferred to a sister company on promotion, he was paid his dues on the first contract and he accepted the second contract with Verino Agro Industries. On the evidence before it, the Industrial Relations Court found that the first contract with Hybrid was repudiated by the appellants and ordered that he was entitled to the balance of the employment benefits as provided for in the two year contract of employment entered into by the parties and ordered that the respondent be paid all the benefits under the repudiated contract including gratuity, less whatever he was paid on termination. It is against these findings and orders that the appellants have appealed. There are three grounds of appeal and these are that:- (a) The court below erred in law in rewarding the respondent damages equivalent to the balance of the fixed term contract of employment. (b) The court below erred in law and fact in finding that the contract had been repudiated when evidence showed that the respondent had consented to a new contract with Verino Agro Industries, the appellants’ sister company. (c) The court below1 erred in both law and in fact when it ordered the appellant to pay damages for breach of employment contract when the evidence showed that the appellant had been wrongly sued by the respondent. When the hearing date for the appeal was fixed and before the hearing, the respondent filed into court Notice to raise -J8- preliminary issues pursuant to Rule 19 of the Supreme Court Act, Cap 25. The points raised were:- 1. The record of appeal is defective and incompetent as some of its pages are not numbered in accordance to Rule 10 Sub Rule 5 of Cap 25. 2. The record of appeal is defective and incompetent as the Memorandum of Appeal and Address of Service were not signed by the appellants’ advocates as required by Rule 28 of Cap 25. 3. The Notice of Appeal is defective and incompetent as it is not in prescribed form in accordance with Rule 49 Sub Rule3 and Rule 14 of Cap 25. On the hearing of the appeal, we heard the preliminary points. The respondent in arguing his preliminary points filed detailed written arguments in support with authorities. The appellant in answer to the preliminary points raised, conceded the shortcomings in the record but submitted that they were of regulatory nature and therefore could not prejudice the -J9- respondent in the appeal. After hearing the preliminary points of objection raised, we overruled them and ordered that the appeal proceeds and we would give our reasons in the main Judgment. This we now do. On the first preliminary objection, as conceded by counsel or the appellant, the omission to number the paragraphs is obvious. The need to number the paragraphs is necessary as it serves time at the hearing of the appeal when referring to any portion of the record, it is easier to follow by going by numbers. We do not see any prejudice to the respondent in not paragraphing the record. As to the notice of appeal, we are satisfied that it is in substantial conformity with the prescribed form under the Act and was duly stamped by the court. But as to the Memorandum of Appeal, it seems to have been sneaked into the record and has no court stamp and it is not addressed to the Master of the Supreme Court and the respondent. We cannot do better than quote Moddley J in KALENGA MTOYOU V KANE MOUNOURQU1, when commenting on state of documents presented to court:- “Both these affidavits in their present state are DISGRACEFUL and appear to indicate a considerable -J10- DEGREE OF CARELESSNESS on the part of the advocate who drew up these affidavits. Judges have neither the time nor the disposition to act as schoolmasters to correct each and every word in documents drafted by Counsel. It is the duty of Counsel to ensure that their paperwork is in meticulous order before filing and that all documents drafted for the purposes of court proceedings conform with the legal requirements.” (Emphasis our own) We may add to these sentiments that the degree of carelessness and incompetency is shown by the Counsel in documents filed in the Supreme Court. We have commented several times on the need for Counsel to prepare documents according to Rules of the Court. We have been, at times, reluctant to throw away cases bearing in mind that it is the litigant who is being punished. Our stating that matters must be decided on merits is not a back door of importing sub standards in pleadings, it is to do justice to litigants and if it means that we have to make the point to Counsel, let them be warned that they will personally be made to pay costs for such disgraceful carelessness and incompetency in preparing court documents. -J11- We have looked at the omissions in the preparation of the record and we would have exercised our powers to dismiss the appeal under Rule 68(2) of the Rules of the Supreme Court, Cap 25 but in the interest of justice and the final warning given, we dismissed the preliminaiy objection raised. At the hearing of the main appeal, Counsel for the appellant abandoned grounds two and three and proceeded to argue ground one only. The gist of the argument in this ground of appeal is that this was a master/servant contract of fixed term and if there was any breach, the damages should be equal to notice period as provided in the contract. But here it was argued that the respondent was transferred on promotion to a sister company and he never objected. Further he was paid what was due to him under the contract with the appellant on pro-rata basis as he had not finished his 2 year contract. By transferring the respondent to a sister company, the respondent never lost anything but gained as he was on better pay. On the misdirection by Industrial Relations Court to award damages equivalent to benefits under the contract the court was referred to the case of -J12- NATIONAL AIRPORTS CORPORATION VS ZIMBA & ANOTHER2, where we reaffirmed what we said in MOBIL OIL ZAMBIA LIMITED VS PATEL3 that where the contract breaker has a contractual option to terminate the contract, the court should assess damages on the footing that the party in breach would exercise the option and the damages should be notice period. In the present case one month notice. In his oral submissions, the respondent argued that his contract with the appellants was terminated without notice and that he was never paid terminal benefits and he agreed with the order of the industrial Relations Court that he should be paid his dues under the contract. c We have considered the arguments by Counsel for the appellants and the respondent in person. The facts coming out from this case are peculiar in that they came out of the usual one-contract-one-employer circumstances. The evidence on record is that the appellants and Verino Agro Industries Ltd are sister companies and there was inter-changeability of workers -J13- and equipment. This comes out clearly even from the evidence of the respondent as at times he was working at Chamba Valley workshop of the appellants when he was already at Verino Agro Industries. Even on being transferred to Verino Agro Industries, the respondent never protested but willingly signed a new contract with Verino Agro Industries. If Verino Agro Industries were completely separate, the respondent would have been in breach of the contract with the appellants. The working relationship was such as they regarded themselves as one; but for immediate supervision. And when the respondent was transferred to Verino Agro Industries, he was paid his dues under the contract with the appellants so that he starts afresh with Verino Agro Industries. The circumstances of this case clearly show that V there was no breach and if there was breach, it was by consent. The circumstances of this case, therefore, clearly show that the award by the Industrial Relations Court was wrong as there was no breach of contract and if there was breach, it was by consent. The appeal is therefore allowed. Becau.se of the circumstances of the case, each party will bear -J14- its own costs. D. K. CHIRWA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE C. S. MUSHABATI SUPREME COURT JUDGE