Konkola Copper Mines (In Liquidation) v Jonas Musonda (Appeal 45/2022) [2024] ZMCA 356 (18 March 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal 45/2022 (Civil Jurisdiction) BETWEEN: AND JONAS MUSONDA APPELLANT RESPONDENT Coram: Majula, Ngulube and Band a- Bobo, JJA On 18 January, 2024 and 1 sth March, 2024 For the Appellant Mr. B. Kangwa of ECB Legal Practitioners For the Respondent Mr. D. Ndhlovu of Messrs Kalulushi Chambers JUDGMENT MAJULA J A, delivered th e J u dgment of the Cou rt. Cases referred to: 1. BOC Gases Plc vs Phesto Musonda (2005) ZR 119. 2. Ndongo vs Moses Mulyango & Another (SCZ Judgment No.4 of 2011). 3. Wilson Masauso Zulu vs Avondale Housing Project Limited (1982) ZR 172. 4. Khalid Mohamed vs The Attorney General (1982) ZR.49. J2 1.0 Introduction 1. 1 The appeal challenges the decision of the High Court delivered on 11 th March, 2021, presided over by Honourable Mr. Justice E. Pengele . The appeal will, inter alia} interrogate whether there was a binding contract for the respondent to act as SOU Manager in KCM 6. The second issue is whether the respondent could have been deemed to have retired as an SOU Manager under the salary scale of KCM 6 . 2.0 Background 2 . 1 The respondent was an employee of the appellant. On 14th January, 2009 the appellant promoted the respondent to the position of Mine Captain on a salary scale of KCM 5. On 22nd August 2014, the respondent's supervisor appointed him to act as SOU Manager for a specified period of one month. 2.2 The respondent was thereafter given appointment letters to act as SOU Manager whenever the office holder was indisposed. He contended that the position of SOU Manager comes with a salary scale KCM 6 which entitled an employee under this head to a personal allowance of not less than US$2,000; an accommodation allowance of not less than US$1,700 and a basic pay of not less than US$4,500 per month. The respondent was subsequently given notice of normal retirement effective 6 th June, 2019. J3 2.3 The kernel of the appellant's case in the court below was that the respondent was never appointed to the position of SOU Manager in salary scale KCM 6. The appellant contended that the respondent was retired as a Mine Captain on a salary scale KCM 5. The appointments that the respondent relied on were purely for administrative purposes orchestrated by the respondent's supervisors to enable the respondent temporarily perform the functions of an absent officer. 2 .4 This disagreement is what triggered an action in the court below which was commenced by the respondent on 11 th April, 2019. The reliefs sought were, inter alia, a declaration that having acted as SOU Manager from 22 nd August, 2014, up to the date of retirement, the respondent should be deemed to be the substantive holder of the SOU Manager position in salary scale KCM 6 . He also sought payment of all entitlements pertaining to the said salary scale plus interest and costs. 3.0 De c ision of the Court below 3.1 After considering the relevant facts and submissions, the trial court found that from 22n d August, 2014 the respondent was appointed to act as SOU Manager and this was confirmed by the appellant. The court was of the view that the failure to issue an appointment letter for the position of SOU Manager from Head Office could not be blamed on the respondent. Thus, the respondent having acted for more than 6 months, the learned Judge deemed him to have been confirmed in the J4 position of SOU Manager with payments of salary scale KCM 6. 3.2 Ultimately, the court below held that the respondent was entitled to payment of all salaries and allowances attached to salary scale KCM 6. 4.0 Grounds of Appeal 4.1 Dissatisfied with the decision of the lower court, the appellant has now appealed to this court on the following grounds: "1. The learned court below erred in law and fact when it held that there is no evidence to show that the respondent ever reverted to the position of Mine Captain after 22nd August, 2014 contrary to the respondent's own testimony that the appointment of 22nd August 2014 was only for a month. 2. The learned Court below erred in law and infact when it held that it was not in dispute that all the positions to which the respondent was appointed pursuant to the letters of appointment were SOU Manager positions under the salary scale KCM 6 contrary to the evidence on record which shows that the respondent never held a position under the salary scale KCM 6 but rather KCM 5. 3. The learned Court below erred in law and infact when it held that the various sectional appointment letters executed between the Respondent and the Appellant's J5 underground Manager amounted to a binding contract appointing the respondent to the position of SOU Manager under the salary scale KCM 6 when the same were merely sectional appointments to fill up vacancies for defined periods. 4. The learned Court below erred in law and in fact when it held that the plaintiff continued acting as SOU Manager from 22nd August, 2014 to the date of his retirement on 6th June 2019, a period of close to 5 years in the absence of evidence from the plaintiff that the sectional appointments were for one continuous period." 5.0 Appellant's Arguments 5.1 In the heads of argument filed in support of the appeal, Counsel argued in ground one that the lower court erred when it held that there is no evidence to show that the respondent ever reverted to the position of Mine Captain after 22nd August, 2014. That this was contrary to the respondent's testimony who stated that the appointment of 22nd August, 2014 was only for a month. In this regard, we were ref erred to page 14 of the record of appeal where the testimony of the respondent is set out. 5.2 Counsel went on to submit that since the appointment was only for one month, this entailed that it expired on 22nd September, 2014 and the respondent cannot be said to have acted continuously in a higher position. He was instead J6 relegated to his substantive position until the next appointment which was on 12 th November, 2014. Based on the foregoing, we were implored to reverse the finding of fact made by the trial court. 5.3 Pertaining to ground 2, the appellant contended that the court below was in error when it found that all the positions to which the respondent was appointed to act were SOU Manager positions under salary scale KCM 6. Counsel pointed out that there was no document before the court below which indicated that the acting positions of SOU Manager that the respondent was placed on were in salary scale KCM 6. To reinforce this submission, our attention was drawn to the testimony of the appellant's witness at page 18 of the record of appeal where he narrated that the position of SOU Manager or Assistant Underground Manager is in KCM 5 Grade. This was corroborated by the record of service appearing on page 182 of the record of appeal where it shows that the position of SOU Manager was in salary scale KCM 5. 5.4 In respect of ground 3, the gist of the appellant's submission was that the sectional letters of appointment cannot be said to have formed binding contracts between the appellant and the respondent in that there is no mention of a salary scale or other entitlements in relation to the appointments. Counsel asserted that the finding of fact to the effect that the sectional appointments are binding was inconsistent with the rule against parole evidence which provides that where the parties have embodied the terms of the contract into a written J7 document, extrinsic evidence 1s not admissible to add, to vary, subtract or contradict the terms of the written document. The case of BOC Gases Plc vs Phesto Musonda 1 was cited as authority. 5.5 The core of the appellant's submission on ground 4 was that the respondent did not sufficiently provide evidence that shows that the periods for which he was acting as SOU Manager constituted one continuous period starting from 22 nd August, 2014 to the time he exited employment. The learned Counsel strongly argued that the sectional letters of appointment indicate varying periods which cannot be properly reconciled. 5.6 In closing, Counsel for the appellant called upon us to reverse the trial Judge's findings of fact on the authority of Ndongo vs Moses Mulyango & Another2 • 6.0 Respondent's Arguments 6.1 The respondent's heads of argument opposing the appeal were filed on 27 th May, 2022. The main point submitted by the respondent is that the appeal against findings of fact should not be allowed on the premise that they were made based on direct oral and documentary evidence. To fortify this submission, the respondent referred the court to a myriad of authorities which guide on when an appellate court can reverse or allow an appeal anchored on findings of fact. In this regard, the cases of Wilson Masauso Zulu vs Avondale J8 Housing Project Limited3 and Khalid Mohamed vs The Attorney General4 were cited as authority. 6.3 In wrapping up his submissions, the respondent urged the court to invoke tenets of justice and fairness in determining the appeal. He beseeched the court to dismiss the appeal with costs. 7.0 Hearing of the Appe al 7.1 When the matter came for hearing on 18th Janaury 2024, both parties entirely relied on the respective heads of argument that they had filed herein. 8.0 Decision of this Court 8.1 We have reflected on all the evidence on record, the grounds of appeal as well as the spirited arguments by the respective parties. From our perspective, at the heart of this appeal is whether or not the respondent could have been deemed to have been appointed and retired as SOU Manager at a salary scale of KCM 6. 9.0 Grounds 1 & 4 - Acting or Substantive Appointment as SOU Manager 9.1 The arguments in grounds 1 and 4 are the same. They are basically challenging the finding that the respondent acted in SOU Manager position from 2014 to retirement. The issue is whether it constituted one continuous period from 2014 to the time he retired. The main contention is that the trial court fell into error by holding that the respondent never J9 reverted to the position of Mine Captian after 22nd August 2014. That this is contrary to the evidence of the respondent who testified that he only acted for one month. 9.2 An examination of the evidence reveals that the respondent had been given various appointments by the appellant for defined periods. Falling out of the respondent's own mouth was the admission that in August 2014, he was appointed for a month when a collegue fell ill. So he thus filled up the vacancy. Thereafter, he was issued with another appointment on 12th November 2014. 9.3 Our understanding is that the appellant did appoint the respondent for defined periods of time. It cannot therefore, be said that the appointment to these positions was a continuos one as there were breaks in between the various periods of appointment. We are thus inclined to agree with the argument advanced by the appellant that the appointments did not constitute one continuous period and in light of the evidence adduced by the respondent, we are inclined to set aside the finding by the court below in line with the powers bestowed on us by the Supreme Court in the case of Ndongo vs Moses Muyanga SCZ Judgment No. 4 of 2011 which articulates instances where we can reverse findings of fact by a trial court. We have been guided that where it is shown that the said findings were either perverse, or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on proper review of the JlO evidence, no trial court could reasonably make, we have the power to disturb. 9. 4 We accordingly reverse the finding of fact for being made in the absence of relevant evidence. 10.0 Ground 2 - Salary scale K CM 5 v s K CM 6 10.1 The frustration in the 2 nd ground emanates from the holding that all the positions to which the respondent was appointed pursuant to the letters of appointment were SOU Manager positions under the salary scale KCM 6 contrary to the evidence on record. 10.2 Close scrutiny of the record reveals that there was in actual fact no document indicating that the respondent had been appointed to SOU Manager under salary scale KCM 6. The court below in its judgment did allude to this fact (see page 15 ROA lines 23 to 25). Further, it was also noted by the court that the witness for the respondent did state that the grade relating to 2014 to 2019 was KCM 5 (see page 17 ROA line 20). In addition, the appellant's witness clearly stated that the position of SOU Manager attracted the salary scale of KCM 5. This particular evidence was further corroborated by the record of service (see page 182 of ROA). 10.3 It is clear from the foregoing that the evidence that was deployed before the court below on what grade was attached to SOU Manger was salary scale KCM 5. On the basis of this evidence, we are perplexed as to why or how the court below Jl 1 arrived at the conclusion that the position of SOU Manager attracted a salary scale of KCM 6. It is our considered view that this finding is not supported by the evidence. The onus was on the respondent to prove their case and they failed to prove that that position was at salary scale KCM 6. As was stated in the cases of Wilson Masauso Zulu vs Avondale Housing Proj ect Limited (supra) "a plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case. As we said in Khalid Muhamed vs Attorney General 'Quite clearly a defendant in such circumstances would not even need a defence'. '1 10.4 Clearly, the finding of the trial Judge flew in the teeth of the evidence and we are thus compelled to set it aside. We therefore find merit in the 2 nd ground and uphold it. 11.0 Ground 3 - Was there a binding contract for the respondent to act as SOU Manager in salary scale KCM 6 11. 1 In view of what we have found that there was no evidence to support that SOU manager position was under KCM 6, it is an exercise in futility to examine whether there was a binding contract. This is in light of the fact that we have found that there was no documentary evidence led to support the finding that the SOU manager position attracted the salary scale KCM 6. As a consequence of the above, the holding by the trial court that the appointment letters constituted binding contracts between the parties is set aside. J12 12.0 Conclusion 12.1 All in all, we have found the 4 grounds of appeal to be meritorious. Succinctly, we hold; 1. There was insufficient evidence led to substantiate the finding that the sectional periods the respondent was acting as SOU manager constituted one continuous period starting from 22nd August 2014, to the time he exited employment. 2. The respondent was not appointed substantively as SOU Manager but merely acted in that position for defined periods. 3. There was no evidence in support of the finding that the position of SOU Manager was under salary scale KCM 6. The evidence was that it attracted a salary scale of KCM 5. 4 . There was no binding contract between the appellant and respondent for the latter to act in the SOU Management position in the salary scale KCM 6. J13 13.0 Costs 13.1 The respondent is condemned in costs to be taxed in default of agreement. ·········~ ·············· B. M. Majula COURT OF APPEAL JUDGE ..... ······ .~~·············. P. C. M Ngulube COURT OF APPEAL JUDGE (lQ_ ~ ········-~ ······· ·· ··· ······· A. M. Banda-Bobo COURT OF APPEAL JUDGE