Katete Riverside High School v Clement Hantumbu (APPEAL NO./285/2021) [2024] ZMCA 70 (15 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO./285/2021 HOLDEN AT LUSAKA (Civil Jurisdiction ) BETWEEN: / ' KA TETE RIVERSIDE HIGH scHq o ~ / AND CLEMENT HANTUMBU . \ .,,,,--_-- __ --~ '·/\ (~--~('' ,, \\✓(~~1~t>ELLANT ,.j',,,,,, ~ "' . -~\ '__;_ \ .. \ --0 •\;? C -2. -- \):i \'f- ;~"·\ ◊ ;_ 7 ·,-:- d "· ~ . ~ ;,, ~ r . 'b . ~> -~ if! _\ \ j;_I P. ONDENT Coram: Mchenga, DJP, Banda-Bobo-a-R~ arpe-Phiri On 10th October, 2023 and 15t h February, 2024. For the Appellants: Messrs. K. B . F & Partners For the Respondent: Messrs Muleza Mwiimbu and Company JUDGMENT BANDA-BOBO, JA, delivered the Judgment of the Court. Cases referred to: 1. Guardall Security Group Limited Reinford Kabwe Appeal No.44 of 20 19 2. Savenda Management Services v Stanbic Bank Zambia Limited (Selected J u dgment No. 10 of 2018) 3. Phinius Hambiya v DGH Products Limited Appea l No . 221 of 2012 4 . Citibank Zambia Limited v Suhayl Dudhia (SCZ Appeal No.6 of 2022) 5. Minister of Home Affair s , the Attorney - General vs Lee Habasonda (on his own behalf and on behalf of SACCORD) (2007) Z. R. 207 1. 0. 1.1 2.0. 2.1 INTRODUCTION This is an appeal against the judgment of the Honourable Mr. Justice E. Mwansa, given in the Industrial Relations Division of the High Court at Lusaka on 31 st May 2021. BACKGROUND The brief background to this matter is that the Respondent alleged that he was verbally employed on 13th April 2015 in Katete, as a Deputy Head Teacher. He averred that part of his duties were to manage the Respondent's school and other businesses such as a football club and farming activities. That he was dismissed on 30th May 2017 without reason. 2.2 He claims that prior to his dismissal, on 12th February 2017, the Appellant's director and secretary of Noble Eagle's football club requested that he lend his personal laptop to be used by the football club and that he was promised that he would be given a replacement. The same was not replaced. 2.3 He asserted that he was unfairly dismissed without any reason and not given an opportunity to be heard. 2. 4 The Respondent then commenced an action against the Appellant seeking the following reliefs: J2 (a) Salary arrears, from April, 2015 to May, 2017 (K42,000) (b)Napsa (c) Gratuity (d)Personal laptop (e) Damages for breach of contract (j) Costs and any other benefits the Court may order. 2.5 The Appellant, in response to the Respondent's allegations confirmed having employed the Respondent as Deputy Head Teacher under a verbal contract and placing him on probation for six months. It was averred that the Respondent was never confirmed to the said position on account of his failure to meet the school's set standards. The Appellant averred that the Respondent's performance was found wanting despite being warned but that his performance never improved. The Appellant confirmed dismissing the Respondent in March 2017 and contended that the Respondent was not entitled to all or any of the reliefs sought. 3.0. DECISION OF THE LOWER COURT 3.1 The Judge in the Court below found that from the evidence J3 =-----=--===-,,.,,_ ____ _ _______________ _ _ '' that was tendered, the Respondent was owed salary arrears and leave days. He found that there was no gratuity nor damages for breach of contract because there was insufficient evidence on record. The trial Judge decided to send the matter to the Deputy Registrar for assessment as he was unable to ascertain the exact amounts that were owed to the Respondent. The matter was ultimately decided in favour of the Respondent. 4. 0. THE APPEAL 4.1 The Appellant, dissatisfied with the judgment has now appealed to this Court on the following four grounds: 1. The Court below erred in law when it proceeded to hear this matter on 20th April 2021 and passed judgment on 31 s t May 2021, as at the time the matter was heard on 20th April 2021 and Judgment was passed, it was already over one year since the matter was commenced as it was commenced in 201 7 contrary to the provisions of section 1 9 (3) (b) (iii) of the Industrial and Labour Relations (Amendment) Act No. 8 of 2008; J4 f ' 5.0 . 5.1 2. That the Court erred in law and fact by rendering a judgment which does not state the reason for holding as it did, thereby going against the rules of writing and delivering judgment; 3. That the Court erred in law and fact by stating that it was satisfied that there is some form of money owed to the Complainant by the Respondent in form of salary arrears and leave days in the absence of documentary evidence; and 4. The Court erred in both law and fact to award costs to the Complaint in an Industrial and Labour Relations matter. CROSS APPEAL The Respondent filed a cross appeal on 18th August 2021 on the following grounds: 1. That what the Court below delivered does not meet the standard requirement of ajudgment; 2. That the Court below erred when he held that neither gratuity nor damages for breach are due for lack of evidence contrary to the evidence available on record. 3. The Court below erred when he referred the amount JS ' ' 6.0. 6.1 owed to the Deputy Registrar for assessment when the amount owed was quantified. ARGUMENTS IN SUPPORT Counsel for the Appellant filed heads of argument on 25th November 2021, and submitted in ground one that the provisions of section 19 (3) (b) (iii) of the Industrial Relations (Amendment) Act No. 8 of 2008 inter alia requires that matters commenced by complaint should be disposed of within a period of one year from the date of commencement. 6.2 He submitted that in casu, the matter was commenced on 31 st October 2017 whilstjudgment was only delivered on 31 st May 2021 translating into a period of over three (3) years. 6.3 Counsel argued that based on the cited provision, the judgment of 31 st May 2021 should be nullified by this Court. Counsel referred to the case of Guardall Security Group Limited Reinford Kabwe 1 where we held that breach of section 19 (3) (b) (iii) of the Industrial Relations (Amendment) Act No.8 of 2008 implies termination of jurisdiction on the part of the court to do anything further on the matter. J6 6.4 Counsel submitted that the Court below did not have jurisdiction to deliver judgment and that the judgment delivered was null and void for want of jurisdiction and the same should be set aside. 6.5 Under ground two, Counsel quoted the holding at page J2 of the judgment as appear at page 39 of the record of appeal and submitted that the statement by the learned Judge in the lower court shows that there is no indication on what form of evidence was relied on when coming up with the judgment. He argued that there is no basis shown of how a decision was arrived at, as without it , it would be fair to suggest that the decision was made out of the blue. Counsel referred to Dato Syed Ahmed Idid in writing of Judgments: A practical guide for Courts and Tribunals, 2011 Edition at page 49, a book that speaks to reveals principles of judgment writing. Counsel also referred to the case of Savenda Management Services v Stanbic Bank Zambia Limited2 , where it was held that:- J7 "The Court must attempt to sieve the evidence or attempt to analyse, access or apply judicial reasoning logic to it'' 6.6 Counsel submitted that this was a fit and proper case for this Court to reverse the entire decision of the lower court and prayed that this ground of appeal be upheld. 6.7 In ground four, Counsel submitted that in summing up its judgment the lower court granted an order of costs to the Respondent without st ating the reason for doing so . Counsel submitted that the Court did not find the Appellant wanting in terms of flouting Rules 44 of the Industrial Relations Court Act Chapter 269 of the Laws of Zambia. Counsel referred to the case of Phinius Hambiya v DGH Products Limited Appeal3 wherein the Supreme Court held that: "Therefore) in the Industrial Relations Court) no order of costs shall be made against either party) whether it be employee or employer) unless they are guilty of conduct outlined in Rule 44 of the Industrial Labour Relations Court1J. 6.8 Counsel prayed that ground four be upheld. J8 , , 6.9 We note that ground three was not argued. We will therefore 7.0. 7 .1 assume that this grou n d was abandoned. ARGUMENTS IN OPPOSTION Counsel for the Respondent filed his heads of argument on 7th December 2021. 7. 2 Counsel argued in ground one that the appeal is premised on lack of jurisdiction by the Court below arising from time lapse in hearing and determining this matter. Counsel su bmitted th at the effect of breach of section 19(3)(b)(ii) by th e Court was determined by this Court in the Guardall Security Group Limit ed v Reinford Kabwe 1 . He seemed to agree with the sentimen ts of the Ap pellant in th at he asked that the matter be sent back to the High Court for retrial. 7.3 Un der gr ound two , th e Respondent agrees with the Appellant, as he submits that the Court's pronouncements a r e nowhere near the evidence submitted by the parties. He submitted that indeed the judgement delivered in the court below does not meet the threshold of a judgment and that therefore the matter should be sent back to the court below before another ju dge and recommence afresh. He relied on J9 the Savenda management Services v Stanbic Bank Zambia Limited2 as did the appellant, on judgment writing. It was contended that the amounts pleaded by the respondent were infact quantified, contrary to what the court held. 7.4 In ground four, Counsel submitted that in the Industrial Division Court, costs are not to be awarded to a party. 7 .5 He argued in ground four, that a party can be awarded costs since costs are at the discretion of the Court. He submitted that a reading of rule 44 of the Industrial Relations Court Act Chapter 269 of the laws of Zambia shows that it is not mandatory that costs should not be granted against a party . Counsel submitted that ground four should fail as the Court below was on firm ground in awarding costs to the Complainant. He prayed that the entire appeal should fail and that the matter be sent back to the court below for rehearing and determination with costs to the Respondent. 8 .0. 8.1 CROSS-APPEAL In ground one, Counsel submitted that the judgment of the court below fell short of a standard judgment. He submitted JlO r , that the court below ought to have outlined its reasons for reaching the verdict delivered in the judgment of 31 s t May 2021. That there should have been a brief outline of the facts contained in the complaint and supporting affidavit and the answer to the complaint and its corresponding affidavit, an analysis of the evidence before the court, and interpretation of the law relating to the facts and evidence. Only thereafter should the Judge have delivered its judgment. 8.2 Counsel submitted that in view of the error of the court below, the judgment amounts to nothing and therefore this Court should pronounce its nullity and order that the record be sent back for retrial as was held in the case of Guardall Security Guard v Reinford Kabwe 1 • He prayed that on the basis of the above, this ground should succeed. 8.3 Under ground two Counsel submitted that the Court below erred when holding that neither gratuity nor damages for breach of contract are due to the Complainant contrary to the evidence before the Court. That a perusal of the Respondent's answer to the complaint on page 33 of the Record of Appeal shows that the Appellant admits having Jll 1, employed the Respondent for a period of time on a verbal contract. 8.4 Counsel submitted that the holding by the lower Court that the Respondent is owed money in salary arears but not gratuity is unsustainable and is contradictory because salaries were earned as a result of the contract that the parties entered into. 8.5 He contended that it 1s trite law that when the probation period of an employee lapses, and he continues to work, it is deemed that he has been confirmed unless something to the contrary is agreed upon which was not the case in casu. 8. 6 Counsel argued that the Respondent was terminated without being charged for an offence by the Appellant. 8.7 Further, that the Respondent was still entitled to gratuity on a pro rata basis even if he would have been found guilty of an offence. Thus, he contended, that his dismissal was done in bad faith without due regard and in breach of the law. He submitted that the court below erred when dismissing the claim by the Respondent and this ground of appeal must succeed. J12 -.. 8.8 In ground three of the cross appeal, the submission by Counsel is that the amended complaint shows exactly what the Respondent was claiming in the court below, and that the reliefs sought were clearly quantified. 8 .9 He contended that it was a grave error for the court below to send the matter before th e Deputy Registrar to receive more evidence when there was ample evidence on record. 8.10 He urged this Court to intervene, with a directive to have the money found owing, to be assessed by the Registrar. He submitted that this ground of the cross appeal must also succeed and that the cross-appeal must succeed. HEARING At the hearing Counsel for both parties did not appear. This judgement is therefore based on the documents before 9.0. 9.1 Court. 10.0. DECISION OF THIS COURT 10.1 We have considered the appeal, the heads of arguments and authorities cited by both parties on record . J13 10.2 It is not in dispute that this matter was filed in the Industrial Relations Division on 31 st October 201 7 and that trial was commenced on 20th April 2021 more than a year later. We will first deal with ground one of the appeal, followed by ground four and we will then deal with ground 2 of the appeal together with ground one of the cross-appeal as both deal with the quality of the judgment. 10.2 In ground one, Counsel for the Appellant submitted that the Court below did not have jurisdiction to deliver judgment and that the judgment delivered was null and void for want of jurisdiction and that the same should be set aside . 10.3 On the other hand, the Respondent submits that the matter should be remitted for re-trial on account of the holding in the case of Guardall Security Group Limited v Reinford Kabwe Appeal 1 , in which this Court declared that a judgment of the lower court delivered more than one year from the date the matter was commenced, is null and void for want of jurisdiction and should be set aside. That the Court of Appeal remitted the record for re-hearing before another Judge of competent jurisdiction. J14 .. ' 10.4 We must state that the cited authority relied on by both Counsel, was overturned by the Supreme Court in the case of Citibank Zambia Limited v Suhayl Dudhia4 in which the Supreme Court, applying the purposive rule of interpretation of statutes, held as follows: 5.36 We think that a purposive interpretation of section 85(3)(b)(ii) of the Industrial and Labour Relations Act means that the court does not lose jurisdiction after one year. To hold otherwise would, in our view, create a result which is absurd in light of the intention of Parliament to curb delays in concluding matters of an industrial relations nature. 5.37 A purposive interpretation would also, in our view, be in keeping with the general tone of the Industrial and Labour Relations Act which in section 85(5) enacts that the main object of the court is to do substantial justice between the parties before it." 10.5 The Supreme Court went on to state at paragraph 5.50 that: JlS "we may also add that the one-year rule {for expeditious disposal of industrial and labour disputes) was not intended to lock out litigants who, through no fault of their own, could not have their cases determined within one year." 10.6 The conclusion by the Supreme Court was that the lower court which rendered the decision more than one year after the prescribed period did not lose jurisdiction to determine the matter. In light of the above guidance, it is our view that both parties are misguided on the current position of the law following the case of Citibank Zambia Limited v Suhayl Dudhia4 . 10. 7 We therefore opine that the court below had jurisdiction to deliver judgment and that the same cannot be rendered null and void for want of jurisdiction, on the basis of the Guardall Case. This ground fails. 10.8 Moving on to ground four , the contention is that the Judge erred in fact and law when he awarded costs to the Respondent in an Industrial and Labour Relations matter. 10. 9 It is settled law that the award of costs is discretionary and J16 that the normal rule is that costs follow the event and that the party who seems to have unjustifiably brought another party before the Court is required to recompense the other party in costs. 10.10 However, this discretion must be exercised judiciously. We note that this is an employment matter under the jurisdiction of the Industrial Relations Division Court. The Industrial Relations Court Rules under Order 44 (the Rules) provides that: "44. (1) Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him." 10.11 The import of the above is that generally the Industrial Relations Court does not award costs unless the circumstances arising in Order ( 1) of the Rules are applicable. Therefore, in respect to costs, this being an action in the Industrial Relations Division, no order of costs J17 can be awarded as stated above especially if there is no mala fides on the part of the Appellant in the prosecution of the matter. We have not seen any untoward behavior by the Appellant herein. This ground has merit. 10.12 In ground two, the argument is that the judgement delivered by the learned trial Judge did not state the reason for holding as he did and thus going against the rules of judgment writing. This ground will be dealt with together with ground one of the cross appeal as both grounds speak to the same issue . 10.13 The Respondent, 1n ground one of the cross-appeal also submitted that the Court below fell short of the standard of a judgment. He argued that the court failed to outline it s reasons for reaching the verdict that it did. Both parties agreed that the judgment delivered did not meet the threshold of a judgment. 10.14 In the case of the Minister of Home Affairs, the Attorney -General vs Lee Habasonda5 , the Supreme Court held, inter alia, that: J18 "Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts." 10.15 We have perused the judgment of the lower court and agree with both parties that the lower court's judgment failed t o meet the standards as encapsulated in the cited case. 10.16 In our view, the trial Judge failed to show a review of the evidence, summary of findings and how he arrived at his decision with authorities if any. The decision failed to show how the Judge made a scholarly decision based on his own reasoning, evaluation of evidence and logic. The case of Savenda Management Services is pertinent. 10. 17 Having analyzed the whole record, and the judgment of the learned Judge, we agree with both parties that the judgment of the lower court did not meet the established tenets for judgment writing. To that extent therefore, both the ground of appeal and cross appeal on this issue have merit. J19 10.18 In view of our finding in ground two of the appeal and ground one of the cross-appeal, we do not find it necessary to make a pronouncement on ground three of the appeal, and grounds two and three of the cross-appeal. 10.19 In conclusion, this appeal fails in grounds one and two. It succeeds only in ground four. 10.20 The matter is therefore sent back to the High Court, Industrial Relations Division for re-trial before another Judge. 10.21 Each party will bear their own costs. C. F. R MCHE DEPUTY JUDGE PRESIDENT ·······~•~ ·············· A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J20