K.B. Davis & Company (Zambia) Limited v Andrew Masunu (APPEAL No. 181 /2006) [2008] ZMSC 167 (11 January 2008)

11 ( () IN THE SUPREME C HC?~D_EN A TLUSAK~U : OF ZAMBIA ( C1v11 Jurisdiction ) ~ REPUsuc OF ze .. a," ~ . . - JU D l C 1.~.r~· APPEAL No. 181 /2006 Stir.,oc . ] ~ f .. . JAN ::oaa . '":..::g couFtt:• ... _:·· '.".:·1· . AMgUrr,·MITED ..._._""'•,1t1 BETWEEN K B DAVIS . . & COM AND . ANDREW MASUNU APPELLANT RESPO NDENT • I Coram: Sakala, CJ, Chibesakunda, Mushabati, JJS. . l 0th April, 2007 and 20th December, 2007 For the Appellant: Mr. L. . C-. Zulu. of Malambo & Company , r'Fo.r the Respondent: N/ A JUDGMENT • • I Chibesakunda , JS delivered the 'Judgement :of the Court Cases referred to: . 1. Kapembwa vs Danny Maimbolwa & Attorney General ( 1981) ZR 127 at 133, lines 10-3.7 2• Wilson Masauso Zulu ·vs Avonda( Housing Project Limited (1982) ZR 172 at 174, lines 13-18). Legislation referr~d to: . sectio_n 3 of the Employment Act, ~ap ;268 of the Laws of Zambia. Section 97 of the Industrial Relations Act, Cap 268 of the Laws of Zambia. . 4. When this matter was heard on the 10th April, 2007 the d ent through their Advocates, Messrs Wilson and had filed a notice of Non Appearance after they . ,. · Respon . Corn I ' h ~ (i I had filed their he we took . t ads of argument, before this court, which in o accou t f n ' or our considering the appeal. This is an . which the Hi h appeal from the High Court Judgment, in g Court found in favour of the Respondent. The court ruled that the Respondent was entitled to terminal benefits to b e calculated by · the Deputy Registrar, the t~rminal benefits to attract interest at the average short-term deposit rate of 10% per annum from the d~te otherwise to the date of judgment and thereafter, at the current bank . ' lending rate of 24% until full payment plus· ,nterests. The brief facts of this case, on which there was no controversy, are that, the Respon<;Jent started working for this Company from 31 st July, 1980 and worked for them for 24 years. He was a good employee. A letter dated 8th May, :l 983, which was produced before the· High. Court, outlined the Respondent's conditions of service·. However, before 30th October 2004, the Respondent had worked for the· Appellant for the period of 3 months without any pay. He wrote a appealing to the Appellant Company, complaining fetter, that going without any pay for that period, was going to bout hardships for him and his family. He received no . bnng 0 response from the Appellants. It was common ground also that before this exchange P of corres ondence, the Respondent was a good employee. ~ He never faulted f Appell t or the period of 24 years. So when the ' ,. an rnade · notic no response to his appeal, he put up a e of resignaf A ion. But before he resigned, he asked the PPellant Company how much he was · entitled to as terminal be . . to him inform· 30th . nefits. On 1 st October, 2004, the Appellant wrote . ing 1m that his accrued terminal benefits, as at h. September, 2004, was Kl 37, 688,000.00. _It was also common ground that, as per clause 6 of his conditions of se 1s terminal benefits were to be calculated as per · rvice h. • U. R. B schedule for Management. The evidence for the Respondent, on which there is contention is that, since the Respondent resigned on his own free will, he was not entitled to any terminal benefits. DWl testified that the employees' hand book, (which was not presented in . ~ourt) had a Management Clause which stipula.te.d that if an employee resigned, he then forfeite·d ~all claims of any terminal benefits. The Appellant maintoihed a I th . figures t a letter produced in court by the Respondent, giving of the Respondent's . terminal benefits, as the , ·ti ment was a fake one. t en I e ' The learned trial Judge's findings were in favour of the d ent and hence this appeal. Before us the Appellant Respon . d fve grounds of appeal: raise 1. 2. 3. 4. J4 - that the I ear that the R ned trial Judge erred in fact when she held espondent resigned due to non payment of Wages by his employer for more than three months; th at f he learned trial Judge misdirected herself In law When she held that terminal benefits are equivalent to wages and were fixed by the contract of service; th at fhe learned trial Judge erred in both law and fact In relying on evidence that was not produced at trial and therefore not properly before her; that the learned trial Judge fe·II into· gross procedural impropriety by Issuing a Subpoena Duces Tecum to the Respondent's witness long after .the close of the parties' respective cases and tendering of final submissions; and 5. that the learned trial Judge erred in both law and fact in holding that the Appellant was entitled to terminal benefits notwithstanding that he resigned from his employment. . At the hearing of the appeal, the learned Counsel for . the Appellant. relied on his written heads of argument. Briefly '· these are on ground 1, that the learned trial Judge ~rred .in payrn fact when she held that the Respondent resigned due to non e nt of wages by his employer for more than three He argued that there was no such evidence to ths · t this conclusion. So he urged this court to disturb . dings of fact; See the cases of Augustine Kapembwa suppor mon . these in f \ Maimbo/wa & Attorney General ( 1) and Wilson Masauso vs o@nY - zulu~ Avondale Housing Proiect Limited(2). JS s On ground 2 h erred in I aw When h h equivale . - - - . e submitted that the learned trial Judge . 5 e eld that the terminal benefits were and were fixed by the contract of nt to wages service. According to · him any remuneration could only qualify to be defined as wages if: (a) the remuneration or earnings were capable of being expressed in terms of money; ' lb\ l· 'J the remuneration or earnings were fixed by a confrdct of · ) . service or a contract of foreign service; and ·. (c) ,· the · :. remvnerafirin or earnings were ' ,payable to an . . : . ·· ·· · ·· · employe·e or casual employee for work ·done or to be: · .·· . -~:r; · .. ; •• done or for services rendered or to be rendered. · ;_ · .· .;- · · , He went on to argue that the terminal benefits did not fall into the definition of woges because :of two reasons: { 1) that . terminal benefits, which had accrued to the Respondent, were not fixed by the contract :.of service . . The contract of employment, if any, normally fi?< the formula for calculating terminal benefits and the qualifications required to entitle an employee to payment; (2) that terminal benefits were not payment for work done or services rendered or for . ' \ . es to be rendered in future. . serv1c consequently, he argued that the learned trial Judge's . g of the terminal benefits as wages was wrong. He . t d out that Section 3 of the Employment Act,(4) was in terms of defining wages. This section defined lobe 1n II pain e genera ( ) .. J6 b ------~ s being ,, remuneration or earnings, however a ed, capable of being expressed in terms ixed by a contract of service or a contract of e W lch are payable by an employer to an Wages a design of rn ed or caJcul t for oney and f' I e gn serv(c h employee o r a casual employee for work done or to be done or for · services rendered or to be rendered ." So he urged this court to uphold this appeal. On ground 3,he argued that the learned trial Judge erred in both low and fact in relying on the evidence that was not produced at the trial and therefore not properly before her~\-Citing the .case of Zambia Revenue Authority Vs ., • ,: . Hitech Trading Company Limited(3). pages 17 to 2L 16-17, he argued that this court, has o~ previous occas,ions, said that "it fs trite law that arguments and submissions at t~e bar; spirited as they may be, can not be a substitute for sworn .evidence." . According to him, the learned trial Judge was so infl.uenced by the handbook that she even quoted from it at pag~ _J8 of her Judgment. It was pointed out that the learned trial Judge, even held the view that, notwithstanding . that the ent was not produced before court and that it ·was itted in evidence, the Respondent's advocate had docurn It was argued that this was totally not a dm . ht to the book. the ng wrong. on ground 4, he argued that the learned trial Judge fell procedural impropriety by issuing a Subpoena into g ross ( i .. l:) J7 I :, e defendants' witness long after the close · rnisd· · . e argued that the court's conduct was a trect,on a s I meant that the court took up a role of a . Duce T of th s ecurn to th e Parties H ·t Party to the . . . . proceedings which is contrary to our practice in our Justice system. ;, .. ) On ground 5, he argued that the court: below erred both .in law and fact in holding that the Resp~ndent was entitled to the term~nal benefits notwithstanding the fact that he resigned from his employment. :: . _. .. ·"i. ,:•'.· 'Yhe Respondent, in his written heads : -~0 L:arg.ument in response, argued on grounds 1 and 2, that the court below, -; !, ;, was on firm ground when it concluded that th'e Respondent ·1 resigned due to none payment of his salary fo~ three months. • He ·further argueo that the terminal ·bene_fits · are_ binding because they are based on the- contract ·<D,·f .:employment dnd ds such payable on the work done.·.:,"' There was a '1 contract of service between the parties hrreto and the layer had indicated to the employee a :.sum of money em P due to him. Therefore the court below was on: firm ground~ . on ground 3, the Respondent denied that the learned trial Judge misdirected herself in both law and fact in ·ng the evidence that was not produced at trial. alloWt ·ng to page 54 of the record of appeal, he argued that Refern · A P the P ellant Company, in court below, clearly stated that .. ) J8 i found in the the A PPellant Corn ernpl , oyee s handbo k O policy ·f th o e compa th h ough the w·t andbook, cone d I ness Who . Pony' 5 policy was • So the evidence concerning the ny, Was properly before the court, even referred to the employment e ed that ,t was not produced in court. On ground 4, which was that the court below fell into gross procedural i_mpropriety, when it issued the Subpoeno Duces Tecum, it was urged that the Appellant witness·'s evidence, was hanging in the air when he made reference · to the company policy, in relation to employees who :,had resigned · after working for the Appellant for · :19 -/ye"ars. Because of this lacuna, the court sought for this document to enable it to properly evaluate th~ facts before it. This is what prompted the court to issue the Subpoena Duces Tecum. ·He . argued that.: the court was entitled to. do that becau:se the . judgment was not yet delivered. On ground 5, he argued again that the court below did not . d' ect ,r m1s itself in awarding terminal benefits to the . dent not with standing the fact that the Respondent d from his employment. Respon . res1gne We have looked at the issues raised in this appeal. We agree th ernploye at there were no conditions of service dealing with es who had worked for the Appellant Company for eriod of 24 years and had subsequently resigned. a lonQ P J9 . a __J__ We, h learned t. 0 wever d ' 0 nal Judge t long aft tend . er the close . enng of sub h ad ·not been d r there was a I . . . not agree that it was a misdirection for the O issue a Subpoena to a witness, even f th . . e case of both parties and after the missions by the two parties. The judgment e ivered. The Respondent have argued that acuna 1n the evidence because OW 1 referred · ~mployee5' handbook which contained a clause, · to th0 which barred an employee, who had resigned on. his own free w, , o get terminal benefits, but did not produce the · t · ·11 handbook: . . ... We note that at page 5.4 ·:o.f .the record, DWl did refer to the handbook which was not produced before the court. In our view, since the evidence about the handbook was already before court, we therefore cannot .fault the learned trial judge in resorting to .se·ek ossistance from that handbook, to enable her reach · a fair conclusion by directing that, that handbook be · brought to court. In our there was no misdirection on that point.. In addition, . w· v,e , even if we accepted the view that there was a lacuna in the evidence presented by the Appellant Company, the trite ·t· n is that the learned trial Judge should have resolved post 10 that lacuna in favour of the party who was not responsible for that lacuna. In this case it would have been in favour of ondent. R P the es Furthermore, the learned trial Judge t d the evidence of the Respondent namely: - ( 1) that worked for the Appellant Company for 24 years with d he ha acceP e I u · (2) that towards the end of his services, a cle the Ap half A • an record and Pelant Co months· (3) PPellant Co · • S) ( . Y then, they h d . f . of his mod mpany refused to pay him for three and ' . As a result of that he resigned. ( 4) The · mpany tned to persuade him from resigning . . a already informed him that regardless e O ex,t, his entitlement was Kl 37, 688,000.00. ' . We hold the v.i~w that the l~arn.ed trial_ Judge, having accepted all these facts, and basing on these facts, made a . number of findings. She found as fact that's, (1) the Appellant Company had already communicated to =. him about his entitlement, (2) that his wages as defin~q . by . . section 3 of the Employment Act, were part of his conditions of his contract of employment. Basing on these facts, she concluded that the Respondent was entitled to the terminal benefits· as per his contr~ct of employment, to ·be calcu_lot.ed by the · ,earned ' Deputy RegistrC!r· These were findings of: fact. Section 97 of the Industrial Relations Act. (4), bars an appe-al. ·· lying to this court on findings of fact by the l~dustrial Relations So we find no merit in the appeal. We dismiss the rt cou . appeal with costs. E .~a CHIEF JUSTICf L. P. Chibesakunda SUPREME COURT JUDGE ' 4u~ SUPREME COURT JUDGE