Katongo and Ors v Attorney General (Appeal 129 of 2013) [2015] ZMSC 177 (10 December 2015)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 129/2013 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ERNEST KATONGO MASIYE TAWATA SIMWANZA FELIX KABWE MIKE MAONEKA AND 1st APPELLANT 2nd APPELLANT 3rd APPELLANT 4th APPELLANT THE ATTORNEY GENERAL RESPONDENT CORAM: MAMBILIMA CJ, WOOD AND KAOMA JJS; On 3rd November 2015 and 10th December 2005 For the Appellants: For the Respondent: In Person Mr. C. HARA Principal State Advocate JUDGMENT MAMBILIMA CJ delivered the Judgment of the Court. CASES REFERRED TO- 1. CONTRACT HAULAGE LIMITED V MUMBUWA KAMAYOYO (1982) ZR 2. AGHOLOR V CHEESEBOROUGH PONDS ZAMBIA LIMITED (1976) ZR 1 * 3. MASAUTSO ZULU V AVONDALE HOUSING PROJECT LIMITED (1982) ZR 172 4. POSTS AND TELECOMMUNICATIONS CORPORATION LIMITED V SALIM JACK PHIRI (1995-1997) ZR 61 5. CHITOMFWA V NDOLA LIME COMPANY LIMITED (1999) ZR 172 6. SWARP SPINNING MILLS PLC V SEBASTIAN CHILESHE AND OTHERS (2002) ZR 23 7. GERALD MUSONDA MUMBA V MAAMBA COLLIERIES (1988-1989) ZR JI LEGISLATION REFERRED TO- 1. DEFENCE ACT, CHAPTER 106 OF THE LAWS OF ZAMBIA 2. HIGH COURT ACT, CHAPTER 27 OF THE LAWS OF ZAMBIA 3. CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA 4. EMPLOYMENT ACT, CHAPTER 268 OF THE LAWS OF ZAMBIA This is an appeal against a Judgment of the High Court, delivered on 16th November, 2012, dismissing the Appellants’ claim for reinstatement and damages for unlawful discharge from the Zambia Air force (ZAF) Regular Force and for discrimination. The facts in this case are common cause. The Appellants were recruited as Officer Cadets in the Zambia Air Force (ZAF) in 2006. After undergoing military training, they were among officers that were selected and sponsored to study in the School of Natural Sciences at the University of Zambia. They all failed their examinations and were excluded from the University in their first year of study. The affected officers were given a second opportunity to study in a military branch of their choice. The Appellants were sent to Livingstone for a regimentation course at the ZAF Academy. Each of them signed a commitment form, making an undertaking that if they failed their examinations, the Respondent would be at liberty J2 to terminate their services. The Appellants failed the examinations, and they were, subsequently, discharged on 17th November, 2008 on grounds that their services were no longer required. The Appellants brought an action seeking an order for reinstatement for unlawful discharge; refund of salary and salary arrears, leave days and all applicable benefits that they forfeited upon the alleged unlawful discharge, damages for discrimination, costs, interest and any other relief. The Appellants argued in the Court below that they were unlawfully terminated as procedure for termination that is outlined in the DEFENCE ACT, CHAPTER 106 of the Laws of Zambia (hereinafter referred to as “the ACT”) was not followed. According to the Appellants, they were entitled to six months’ notice or salary in lieu of notice but that they were only paid three months’ salary. The Appellants alleged that they had been discriminated against and treated less favourably when they failed certain subjects of the regimentation examination yet others who were similarly circumstanced were allowed to proceed. The Appellants stated that their discharge was irregular because the letter of discharge cited a wrong serial number under J3 Regulation 9 (3) of the DEFENCE FORCE (REGULAR FORCE) (ENLISTMENT AND SERVICE) REGULATIONS THIRD SCHEDULE of the ACT namely, serial no. xvii which dealt with appointments to a commission, as opposed to serial no. xviii for services no longer required. In response, the Respondent, in its defence, averred that the discharge was lawful. The Respondent stated that the Appellants were attested into the Zambia Air Force Regular Force as Officer Cadets or trainee probationers. That their services were no longer required for failing at the University of Zambia and that even after being given a second chance to study at the ZAF Academy in Livingstone, the Appellants still failed. The Respondent stated that the Appellants were rightly paid three months’ salary in lieu of notice. After considering both the oral and documentary evidence, the learned trial Judge found that the Respondent properly discharged the Appellants using powers vested in it under Regulation 9(3) of the DEFENCE FORCE (REGULAR FORCE) (ENLISTMENT AND SERVICE) REGULATIONS THIRD SCHEDULE of the ACT. The J4 learned Judge also found that the use of a wrong serial number was merely a clerical error and was not enough to nullify the discharge. On the whole, the trial Court held that the Appellants had failed to prove their claims to justify an order for reinstatement and damages for unlawful discharge or indeed that they were discriminated against. The action was dismissed with costs to the Respondent. Dissatisfied with the Judgment of the lower Court, the Appellants have now appealed to this Court advancing four grounds of appeal. Although each of the Appellants filed separate memoranda of appeal, the grounds of appeal are, essentially, the same. These are - 1. That the learned trial Judge in the Court below erred and misdirected herself in law and fact by holding that the Appellants were properly discharged under Regulation 9(3) of the DEFENCE FORCE (REGULAR FORCE)(ENLISTMENT AND SERVICES) REGULATIONS since their services were no longer required and therefore that the claim for reinstatement failed. 2. That the learned trial Judge in the Court below erred and misdirected herself in law and fact by holding that the Appellants failed to prove that they were discriminated against and intimidated during their regimentation at the Zambia Air Force. 3. That the learned trial Judge in the Court below erred and misdirected herself in law and fact by ignoring the fact that the Appellants were entitled to compensation for loss or damages, as a result of the discharge from the Zambia Air Force and that they were officers on probation. J5 4. That the learned trial Judge in the Court below erred and misdirected herself in law and fact by holding that the serial number xvii used as a cause of discharge was due to a clerical error and therefore did not make the discharge unlawful. We must hasten to state that at the hearing of this appeal, it emerged, firstly, that the 1st Appellant was not in attendance. Secondly, that the 2nd Appellant was deceased and was purportedly represented by one Joseph Knox SIMWANZA in his capacity as Administrator. We found this rather curious as there was no application or order for substitution of parties granted by the lower Court in accordance with Order XVI rule 1 of the HIGH COURT RULES CHAPTER 27. Although we allowed Mr. SIMWANZA to proceed with his submissions, we have found ourselves greatly constrained to consider his submissions for want of audience. This notwithstanding, the Appellants filed separate heads of argument, again which were a duplication and on which they relied. The gist of the Appellants’ arguments on the first ground of appeal is that the procedure under Section 79 of the DEFENCE ACT was not followed. The said Section 79 reads as follows:- “79. Before an allegation against a person subject to military law under this Act (hereinafter referred to as ‘the accused’) that he has committed an offence against any provision of this part is further proceeded with, the allegation shall be reported, in the form of a charge, to the accused’s commanding officer and the J6 commanding officer shall investigate the charge in a prescribed manner.” The Appellants further argued, that no certificates of discharge were issued as required under Regulation 9 (4) of Section 210 of the DEFENCE FORCE (REGULAR FORCE) (ENLISTMENT AND SERVICE) REGULATIONS of the ACT. They contended that since the correct procedure was not followed, their termination was unlawful. They relied on the case of CONTRACT HAULAGE LIMITED V MUMBUWA KAMAYOYO1 where we held “Where there is a statute which specifically provides that an employee may only be dismissed if certain proceedings are carried out, then an improper dismissal is ultra vires.” The Appellants further argued, that failure to give them an opportunity to answer charges against them was contrary to natural justice and any subsequent dismissal arising there from was null and void. They prayed that the Judgment of the lower Court should be set aside and that they should be reinstated. In the case of the 2nd Appellant, the “prayer” was for terminal benefits. The Appellants further contended that their discharge was unlawful and contrary to the spirit of labour laws in Zambia and under international law. They cited Section 21(b) of the EMPLOYMENT ACT4 which states:- J7 “21. Either party to an oral contract of service may terminate such contract- (b) in any other case, by payment to the other party of a sum equal to all wages and other benefits that would have been due to the employee had notice to terminate the same been given on the date of payment.” The Appellants argued, relying on this provision, that it is important, when terminating a contract of employment that notice or payment in lieu of notice be furnished otherwise the termination will be regarded as wrongful or unlawful. On the second ground of appeal, the Appellants contended that they had been discriminated against and intimidated in the manner that the regimentation examinations were conducted. This, they submitted, was contrary to Article 23 (1) and (3) of the CONSTITUTION OF ZAMBIA3 which states: “23. (1) Subject to clauses (4), (5) and (7), a law shall not make any provision that is discriminatory either of itself or in its effect. (3) In this Article the expression "discriminatory" means affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.” J8 With respect to the third ground of appeal, the Appellant argued that since they were unlawfully terminated and procedure was not followed, they were entitled to damages. They referred us to the case of AGHOLOR V CHEESEBOROUGH PONDS ZAMBIA LIMITED2 where it was held- “It is trite law that a master can terminate a contract of employment at any time, even with immediate effect and for any reason. If he terminates outside the provisions of the contract then he is in breach thereof and is liable in damages for breach of contract.” The Appellants’ arguments in support of the fourth ground of appeal was that the learned trial Judge misdirected herself when she held that the serial number cited as the regulation under which the Appellants were discharged, was a clerical error. They submitted that such a grave error should not be tolerated by the Court as it had caused the Appellants great harm. In response to the Appellants’ heads of argument, the learned Counsel for the Respondent submitted, on the first ground of appeal, that Section 79 of the ACT, cited by the Appellants, was inapplicable as the Appellants’ discharge was not based on any of the grounds as envisaged in that provision. Counsel submitted that for that reason, the Appellants could not rely on the case of J9 CONTRACT HAULAGE V MUMBUWA KAMAYOYO1. Counsel argued further, that it was also misleading for the Appellants to refer to provisions of the EMPLOYMENT ACT, CHAPTER 268 as that Act was not applicable to members of the defence forces. According to Counsel, the Appellants were properly discharged in accordance with Regulation 9(3) of the ACT. On the second ground of appeal, Counsel submitted that the learned trial Judge was on firm ground when she dismissed the claim for damages for discrimination as the Appellants did not adduce any evidence to support the allegation. That having alleged discrimination, the onus was on the Appellants to prove the same. To support this submission, Counsel cited the case of MASAUTSO ZULU V AVONDALE HOUSING PROJECT LIMITED3 where we held- .where a plaintiff alleges that he has been wrongly or unfairly dismissed or as indeed in any other case where he makes any allegation, it is generally for him to prove those allegations.” Counsel also drew our attention to the case of POST AND TELECOMMUNICATIONS CORPORATION LIMITED V SALIM JACK PHIRI4 where we held - “When discrimination is referred to in the context of persons being wrongly discriminated against within the provisions of section J10 129 it means discrimination only in respect of those matters which are referred to in the section.” In response to the third ground of appeal, Counsel submitted that as the Appellants’ were lawfully discharged, the lower Court properly addressed its mind when it held that the Appellants were not entitled to compensation, refund of salary arrears, leave days or other benefits. On the fourth ground of appeal, Counsel agreed with the lower Court that reference to serial no. xvii instead of no. xviii was a clerical error. He concluded by submitting that the Appellants’ case was one where an order for reinstatement was inappropriate especially that there was an alternative and adequate remedy in form of damages. Counsel cited the cases of CHITOMFWA V NDOLA LIME COMPANY LIMITED5 and SWARP SPINNING MILLS PLC V SEBASTIAN CHILESHE AND OTHERS6 to support his submission. We have examined the evidence on record and the submissions from both sides. From the evidence, it is not in dispute that the Appellants were recruited, or as was stated in military parlance, attested as Officer Cadets in the ZAF Regular JU Force in 2006. It is not in dispute that the Appellants were sponsored to the University of Zambia, School of Natural Sciences in the 2007/8 intake but were excluded after failing in their first year of study. It is also not in dispute that the Appellants were given a second chance to study and were sent to the ZAF Academy for a regimentation course. The Appellants were required to sign commitment forms authorising the Respondent to terminate their employment in the event that they failed again. It is on record that the 1st, 3rd and 4th signed the commitment forms. It was established that the Appellants were discharged after registering poor results in the regimentation course. The only issue for determination, as we see it, is whether the Appellants’ discharge was lawful. For this reason, we shall deal with all the four grounds of appeal together. The Appellants argued that their dismissal was contrary to Section 79 of the DEFENCE ACT as they were not formally charged and neither were they informed of the allegations against them by their Commanding Officer. Counsel for the Respondent, on the other hand, submitted that the provisions relied on by the J12 Appellants was inapplicable as the Appellants were not facing any charge referred to under Section 79. We have perused Section 79 of the Act on which the Appellants rely to support their contention that they were unlawfully discharged. We have reproduced the full text of the Section above. One can discern, from the clear provisions of this provision that it governs a situation where a person is accused of having committed an offence against any provisions of Part V. It places an obligation for the allegation to be reported to his/her commanding officer and for the commanding officer to investigate the charge. Part V of the ACT sets out military offences that are the subject of proceedings before a court martial. In this case, the Appellants were not charged with any offence as envisaged in Part V. Clearly, therefore, Part V did not apply to their situation. We also find that reliance on the EMPLOYMENT ACT4 is misconceived and has not aided the Appellants’ case because the EMPLOYMENT ACT4 does not apply to members of the Defence Force. It states in Section 2 (1) (i) that:- J13 “2. (1) Subject to the provisions of subsection (2), the provisions of this Act shall bind the Republic: Provided that this subsection shall not have effect in relation to the following: (i) persons in the Defence Force (other than locally engaged civilian employees);” The Appellants were persons in the Defence Force and not locally engaged civilian employees. Evidently, from the letters of discharge, the Appellants were discharged in accordance with Regulation 9 (3) of the DEFENCE FORCE (REGULAR FORCE) (ENLISTMENT AND SERVICE) REGULATIONS of the ACT which states - “9 (3) A soldier may be discharged from the Regular Force at any time during his service in such Force upon any of the grounds set out in column 1 of the Third Schedule, subject to the Special Instruction appearing opposite thereto in column 2 of the said Schedule...” One of the grounds set out in the Third Schedule is “His services being no longer required.” This is the ground that is stated in the Appellants’ letters of discharge. Section 21 of the DEFENCE ACT1 empowers a competent military authority to discharge a soldier during the currency of any term of engagement. The Respondent, through the Air force Commander, is empowered by law to discharge an officer if his/her services are no longer required. The learned trial Judge therefore, was on firm ground when she found J14 that the Respondent had exercised its statutory power to discharge the Appellants. On the contention that the Respondent used a wrong serial number ‘as cause of discharge/ we agree with the learned trial Judge that this was a clerical error as the cause of the discharge was clearly stated as “your services being no longer required” in the letter of discharge. Further, the letter to the Station Commander at Air Headquarters, dated 27th June, 2008 appearing on page 208 of the record of appeal and reproduced hereunder, correctly quotes serial xviii of the third schedule of the DEFENCE ACT1 as the ground for the discharge. Quoting of serial number xvii instead of xviii in the letters of discharge could only have been due to a clerical error. We agree with the Judge that such an error did not go to the root of the matter so as to nullify the discharge. Coming to the claim for damages for discrimination, the Appellants’ complaint in the main, is that out of the nine (9) who failed, only four (4) of them were discharged. The 4th Appellant alleged further that he was told that he was too short. The document on page 208 of the record of appeal tells a different story. J15 It is written on behalf of the Air Commander to the Station Commander at the Air Headquarters Station. It states:- “DISCHARGE OFFICER CADETS Reference is made to the subject matter. 2. The under mentioned officer cadets are discharged from the Regular Air Force in accordance with the Defence Force (Regular Force) (Enlistment and Service) Regulations, Regulation 9(3) Third Schedule Serial xviii of the Defence Cap 106 of the Laws of Zambia for services no longer required after failing to complete successfully an Officer Cadets Course of Instruction. The effective date being 30th June, 2008. a. 10600 O/cdt MABUKU SS b. 10643 O/cdt MUCHENJE B c. 10691 O/cdt MWANSA R d. 10705 O/cdt PHIRIK e. 10712 O/cdt MWALE J R f. 10714 O/cdt MALUTI W g. 10718 O/cdt KABWE h. 10728 O/cdt KATONGO E i. 10753 O/cdt MAONEKA M 3. Promulgate the occurrence as necessary. Signed F MILAMBO psc MZIHRM Colonel, for Air Commander Nine people are listed for discharge in his letter. The claim for discrimination in this respect was not proved. We have also found nothing in the Appellants’ assertions that would demonstrate discrimination under Article 23 of the Constitution. The Appellants J16 were not discriminated on account of their race, tribe, sex, place of origin, marital status, political opinion, colour or creed as defined under Article 23 (3) of the Constitution. Consequently, we are inclined to follow our decision in the case of POSTS AND TELECOMMUNICATIONS CORPORATION LIMITED V SALIM JACK PHIRI4 which was cited to us by Counsel for the Respondent. In that case, the claimant claimed to have been discriminated against because two of his fellow employees were not disciplined whereas he was. We held that:- “Discrimination generally can never be a ground for finding that a person has been improperly dismissed, and could never give rise to an order of compensation of reinstatement under the section.” Having found that the Appellants were lawfully discharged the claims for reinstatement and damages for discrimination cannot succeed. The Appellants contended that upon discharge, they ought to have been paid six (6) months’ salary in lieu of notice instead of the three (3) months’ salary in lieu of notice that they were paid. The Court below found that the Appellants failed to prove that their terms of employment provided that they were entitled to be given six (6) months notice to terminate their employment. We have also not J17 <9 C t found any provision which entitled the Appellants to six months payment in lieu of notice. The three months salary that they were paid effectively terminated their employment. We endorse our decision in the case of GERALD MUSONDA MUMBA V MAAMBA COLLIERIES6 that: “It is the giving of notice or pay in lieu that terminates the employment.” The Appellants could have been allowed to serve the notice period but in this case, they were paid three months salary in lieu of notice. Upon termination, they were entitled to the normal measure of damages. As we stated in the case of SWARP SPINNING MILLS PLC V SEBASTIAN CHILESHE AND OTHERS6, the normal measure of damages- “....will usually relate to the applicable contractual length of notice or the notional reasonable notice, where the contract is silent.” In the circumstances of this case, the Appellants, having served the ZAF Regular Force for a period of under two years, we find that the three months’ salary in lieu of notice paid to the Appellants was reasonable. We, therefore, find no reason to J18 a -7 $ interfere with the lower Court’s findings. All the four grounds of appeal must fail. In sum, this whole appeal has failed and stands dismissed for lack of merit. We make no order for costs. I. C. Mambilima CHIEF JUSTICE __ c__________ Rtm. C. Kaoma SUPREME COURT JUDGE J19