Chimfwembe and Ors v Moolmans Mining (Z) Ltd (Appeal 172 of 2013) [2016] ZMSC 275 (20 April 2016)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) APPEAL NO. 172/2013 BETWEEN: LEVI CHIMFWEMBE& 83 OTHERS APPELLANTS AND MOOLMANS MINING (Z) LIMITED RESPONDENT CORAM: MAMBILIMA, CJ, WOOD AND MUTUNA, JJS; On 5th April, 2016 and 20th April, 2016. For the Appellants: In Person; For the Respondent: Mr. E. C. Banda, SC, and Mr. F. Chib we, of Messrs. ECB Legal Practitioners. JUDGMENT MAMBILIMA, CJ, delivered the Judgment of the Court. CASES REFERRED TO- 1. JOHN PAUL MWILA KASENGELE AND OTHERS V. ZAMBIA NATIONAL COMMERCIAL BANK LIMITED (SCZ JUDGMENT NO. 11 OF 2000); 2. FINANCE BANK LIMITED V. AFRICA ANGLE LIMITED AND OTHERS SCZ JUDGMENT NO. 135 OF 1997; 3. WILHEIM ROMAN BUCHMAN V. ATTORNEY-GENERAL (1994) SCZ JUDGMENT NO. 14 OF 1994; AND 4. KITWE CITY COUNCIL V. WILLIAM NG’UNI(2005) ZR 57. LEGISLATION REFERED TO- (i) INDUSTRIAL AND LABOUR RELATIONS ACT, CHAPTER 269 OF THE LAWS OF ZAMBIA; (ii) EMPLOYMENT ACT, CHAPTER 268 OF THE LAWS OF ZAMBIA; AND (iii) HALSBURY’S LAWS OF ENGLAND, VOLUME 37, PARAGRAPH 717. JI This is an appeal from the Judgment of the Industrial Relations Court, delivered on 20th June, 2013. This followed an action commenced by the Appellants by way of a notice of complaint and supporting affidavit filed pursuant to section 85(2) of the INDUSTRIAL AND LABOUR RELATIONS ACT(i) for the following reliefs: (a) gratuity; (b) damages for loss of employment; (c) monthly salaries for the remaining period; (d) leave days; and (e) interest and costs. The material facts of this case are simple and substantially not in dispute. The Appellants were originally employed by the Respondent on one year contracts of employment which ran from 1st January, 2010 to 31st December, 2010. After the expiry of their first contracts, the Appellants were given extensions to allow the Respondent to arrange their new contracts. The Appellants worked under that state of affairs until 1st June, 2011, when they signed their respective second contracts. The duration of the second contracts was two years, that is, from 1st June, 2011 to 30th May, Appellants signed identical contracts. For purposes of this appeal, the clauses of the contracts which are relevant to this appeal are clauses 1.1, 1.3 and 2.4 which respectively provided as follows: 1.1 1.3 2.4 This contract of employment is drawn up for the Employer’s Konkola Copper Mine, Fitwaola Contract with its Client. The Employer requires the services of the Employee for the purposes of this contract only. Consequently, the Employer is not in a position to offer the Employee permanent employment but only employment for this contract with the Employer’s Client. The period of employment is dependent and conditional upon the existence of the Employer’s contract and relationship with its client, this constituting the overriding consideration in the Employer being able to provide employment for the Employee. In the unlikely event of this contract with the Client being terminated for any reason whatsoever, prior to the completion of the tasks or duties assigned to the Employee, this fixed term contract of employment will likewise terminate. This contract of a fixed term of employment must not be considered by the employee, after the expiry of the fixed term, in any circumstances whatsoever, to give rise to any expectation of continued or permanent employment or to any relationship between the Employee and the Employer. Any termination shall not be construed as being a dismissal, retrenchment or redundancy, but shall be the completion of the employment contract for which the Employee was employed. No hearing whatsoever is required when this contract terminates through effluxion of time and or completion of the tasks and duties of an Employee, no redundancy or service benefits will be payable when this contract is terminated. Effective from the 1st September, 2011, all employees in the Bargaining Unit will receive a gratuity of 10.5% of their annual basic salary for each completed year of service. This gratuity will be paid at the end of each contract entered into by MMZ and its client/s. The gratuity will not be payable in the following circumstances: 2.4.1 . Dismissal 2.4.2 . Resignation J3 2.4.3 . Medical Discharge (provisions of relative legislation will apply) 2.4.4 . Absconding/desertion 2.4.5 . Retrenchment (provisions of the relative legislation will apply in place of a gratuity payment). The Respondent’s Client for the Fitwaola contract was Konkola Copper Mines Pic (hereinafter referred to as “KCM”). On 21st November, 2011, KCM wrote the Respondent a letter in which it communicated the immediate termination of the Fitwaola contract. Following the termination of that contract, the Respondent terminated the Appellants’ respective contracts of employment on 30th November, 2011. The Respondent indicated, in the said letters of termination of contracts of employment, that the terminations had been made pursuant to clause 1.3 of the contracts of employment. The termination letters stated that the Respondent would pay each of the Appellants the following termination package: 1. two months’ pay in lieu of notice; 2. accrued leave days up to 31st December, 2011; and 3. holiday allowance on pro rata up to December, 2011. The Appellants were not happy with the above termination package. Consequently, through the National Union of Miners and Allied Workers (hereinafter referred to as “NUMAW”) and the Mine J4 Contractors and Allied Workers Union of Zambia (hereinafter referred to as “MCAWUZ”), they engaged the Office of the Labour Commissioner to intervene. The negotiations that followed led to the signing of an agreement (hereinafter referred to as “the negotiation agreement”) between the Respondent and the two Unions on 6th December, 2011, in which they agreed as follows: “Whereas the termination of contract payment and benefits is agreed by the parties, the termination benefits will be- i. two months’ full pay in lieu of notice, starting 30th November, 2011 ending 31st January, 2012; ii. accrued leave days up to 31 December, 2011; iii. holiday allowance on pro-rata up to 31 December, 2011; and iv. no gratuity payment. From the documents on record, it is clear that the Appellants were still not satisfied with the package agreed upon by the Respondent and the Unions. On 1st February, 2012, the Labour Commissioner wrote a letter to the Respondent in which he stated the following: i. ii. that the current contract, under clause 1.3 and 2.4 are in contradiction and therefore cannot be relied upon; that the union and management have agreed not to pay gratuity to the workers and yet gratuity was part of the conditions of the contract which the workers signed; J5 iii. it was also noted that the contract was not signed as required under section 29 of the Employment Act Cap 268 of the Laws of Zambia. The Labour Commissioner went on to advise that the Respondent and the Unions should revisit the terminal payments paid to the workers and possibly consider payments of better terminal packages. The Respondent and the Unions subsequently held two meetings at which the Respondent maintained that it would not pay the Appellants anything more than what it had already paid them. Consequently, the Unions referred the matter back to the Labour Commissioner. In turn, on 29th February, 2012, the Labour Commissioner referred the matter to the Registrar of the Industrial Relations Court. In the meantime, the Appellants had filed a notice of complaint in the Court on 28th February, 2012. In their notice of complaint, the Appellants stated that the Respondent terminated their contracts of employment without furnishing them with any reason. That their understanding of clause 2.4 of their contracts was that they were supposed to be treated as if they had completed their respective contracts. In answer to the Appellants’ notice of complaint, the Respondent contended that it terminated the Appellants’ contracts J6 in accordance with clause 1.3 of the contracts. The Respondent further stated that clause 2.4 did not entitle the Appellants to payment of gratuity as gratuity was only payable where an employee had served for a period of not less than one year. On the evidence before it, the Industrial Relations Court was of the view that there was no cause for any dispute other than an attempt by the Appellants to manufacture an ingenuous way to get money from their former employer. On the totality of the issues before it, the Court found no merit in the Appellants’ Complaint and dismissed it. The Appellants have now appealed to this Court, against the Judgment of the Industrial Relations Court, advancing the following grounds of appeal that:- 1. The learned trial Judge in the Court below erred in law and in fact by making an order for appellants to pay costs to the respondent after dismissing the matter for no genuine cause; 2. The appellants brought the matter before Court for justice suffered injustice by the lower Court for not awarding us any of our reliefs claims for no genuine cause despite our contract prematurely terminated; 3. The lower Court erred in law in fact by not paying much attention to clauses from 2.4 to 2.4.5 of the contract of service which would have guided them fully to reach its normal conclusion on from ground; J7 4. the lower Court erred at law by stating that the unions negotiated on the basis of clause 1.3 of contract of service when in fact it was clause 2.4.5 which provided for Cap 268 section 21 termination by payment of the Employment Act of the Laws of Zambia as the mode of exit, to which both parties agreed and consented by signing the agreement on 6th December, 2011. 5. The lower Court erred and misdirected itself by alleging and stating that obviously prior to handing the complainant their letter of termination the respondent meet with the unions when in fact the meeting only took place after we received termination letter due to the dispute over the termination package. 6. The lower Court erred at law and misdirected itself in its judgment by stating that the package on the termination letter constituted the entire package and was duly paid contrary to Cap 269 section 65(1) (a) of the Industrial and Labour Relations of the labour laws of Zambia. 7. The lower Court erred at law by failing to sought out what mode of exit we v-ere under e.g. dismissal, retirement, redundancy, or retrenchment, if at all what was in the contracts, unions and respondent agreement did not provide the termination package contrary to Cap 268 section 74. 8. The lower Court: erred at law by stating that it is not denied that the contract between the respondent and KCM Pic upon which the complainant continued employment for the duration of the contract depended on was terminated without looking at the reasons why KCM terminated respondents contract as provided for by the evidence cannot be attributed to the complainants would be contrary Cap 268 section 26A of the Employment Act of the labour laws of Zambia. 9. The lower Court erred in its judgment by quoting the negotiated agreement wrongly by stating that parties agreed that the mode of exit for employees engaged on the Konkola Copper Mine Fitwaola contract by moolmans will be terminated by payment contrary to Cap 268 termination of payment labour laws of Zambia and its meaning thereof, (szc) J8 .. W! In support of these grounds of appeal, the Appellants filed written heads of argument which the 1st Appellant, on behalf of the other Appellants, supplemented with oral submissions. On the first ground of appeal, the Appellants contended that the lower Court erred in its Judgment by ordering them to pay costs to the Respondents when the Appellants are living in extreme poverty after their contracts of employment were terminated ^prematurely. They expressed the view that condemning poor litigants to costs would make them afraid to seek justice. Coming to the second ground of appeal, the Appellant contended that clauses 2.4 and 2.4.5 of their contracts of employment provided for what would happen upon the expiry of the contracts of service or completion of tasks. According to them, the implication of clauses 2.4 and 2.4.5 was that since the contracts ®v7ere fixed term contracts, any termination of the said contracts before their expiry dates would be a breach of contract. As for the third ground of appeal, the Appellants argued that clause 2.4.5 of their contracts of employment provided for retrenchment. That the clause provided that a retrenchment package should be paid in accordance with relevant legislation. J9 With regard to the fourth ground of appeal, the Appellants submitted that the lower Court erred when it stated that the Unions negotiated on the basis of clause 1.3 of the contracts of service. They submitted that the Unions negotiated on the basis of clause 2.4.5. That, therefore, they were entitled to be paid all wages up to the time their individual contracts would have expired. For these arguments, they relied on section 21 of the EMPLOYMENT ACT(ii), which provides that:- “21. Either party to an oral contract of service may terminate such contract- fa) in the case of a contract which may be terminated without notice, by payment to the other party of a sum equal to all wages and other benefits that would have been due to the employee if he had continued to work until the end of the contract period; (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 at the termination of the employment had notice to terminate the same been given on the date of payment.” In the fifth ground of appeal, the Appellants argued that the Industrial Relations Court misdirected itself when it suggested that prior to handing the complainants the letters of termination of employment, the Respondent met with the Unions. They contended that the letters of termination of employment were dated 30th November, 2011, while the negotiation agreement was dated 6th December, 2011. In their view, this meant that the Union only met with the Respondent after the Appellants were given letters of termination. That they could not, therefore, recognize the payment of benefits based on the termination letters instead of the negotiation agreement. With regard to the sixth ground of appeal, the Appellants stated that the lower Court misdirected itself by stating that the package on the termination letter constituted the entire package and was duly paid. They reiterated that the payments should have been determined on the basis of the negotiation agreement. To reinforce these arguments they referred us to section 65(1) of the INDUSTRIAL AND LABOUR RELATIONS ACT(i), which provides that- “65. (1) Every recognition agreement shall be in writing, signed by the representatives of the parties to it and shall provide- (a) that the employer or employers’ organisation, as the case may be, has recognised the trade union as representative of, and bargaining agent for, the eligible employees represented by the trade union so recognised for the purpose of regulating relations between the employer or employers' organisation and the trade union; (b) for the rules relating to grievances and bargaining procedures; J11 (c) for the methods, procedures and rules under which the agreement may be reviewed, amended, replaced or terminated.” In the seventh ground of appeal, the Appellants submitted that the lower Court erred by failing to decide on whether the termination of the Appellants’ employment amounted to a dismissal, retrenchment or redundancy. To support this argument, the Appellants referred us to section 74 of the INDUSTRIAL AND LABOUR RELATIONS ACT(i|, which provides that- “74. If, in any legal proceedings, it does not clearly appear what rate of wages or benefits was agreed upon between an employer and an employee, the court shall fix the rate of wages or benefits at that usually paid or given for the type of service concerned in the area in which the contract of service was to be performed.” Lastly, in the eighth ground of appeal, the Appellants contended that they were employed by Moolmans Mining Zambia and not KCM. That, therefore, the recognition of clauses 1.1 and 1.3 of their contract of service was a misrepresentation of the facts by the lower Court. In their opinion, KCM terminated its agreement with the Respondent because the Respondent had stopped operations at the Fitwaola site. In support of these arguments, the Appellants referred us to section 35 of the INDUSTRIAL AND LABOUR RELATIONS ACT(i), which provides that- J12 “35. (1) Where a dispute arises between two or more trade unions affiliated to the same federation of trade unions, the parties to that dispute shall refer the dispute to the federation of trade unions for resolution by reconciliation. (2) If a federation of trade unions fails to resolve the dispute, such dispute shall be referred to it under subsection (1), the dispute shall be referred to the Commissioner for arbitration, subject to appeal to the Court. (3) Where the dispute involves trade unions not affiliated to any federation of trade unions, or any party to that dispute is not affiliated to any federation of trade unions, either party to the dispute may refer the dispute to the Commissioner for arbitration, subject to appeal to the Court.” In response, the learned Counsel for the Respondent, Mr. Banda and Mr. Chib we, filed written heads of argument which they augmented with oral submissions. In the first ground of appeal, Counsel contended that it is trite law that a Court has discretion to award costs to a successful party. That unless there are other factors, a successful party must be awarded costs. That, therefore, the Respondent was rightly awarded costs because it was successful in the lower Court. Counsel went on to submit that the argument by the Appellants that they cannot afford to pay costs is not tenable. In his view, this is because the Appellants are 84 in number and each one of them can contribute to the costs in the same way they contributed to the fees for their lawyer in the Industrial Relations J13 Court. Counsel submitted that being impecunious cannot be a ground for denying a deserving litigant entry of judgment. For these arguments, Counsel referred us to the case of JOHN PAUL MWILA KASENGELE AND OTHERS V. ZAMBIA NATIONAL COMMERCIAL BANK LIMITED'1’, where we held that- “Inability to pay has never been and is not a defence to a claim. It is not a bar to entering judgment in favour of a successful litigant”. With regard to the second ground of appeal, Counsel stated that this ground alleged no error of law or fact but was more of a plea that the Appellants suffered injustice on account of the lower Court refusing to award any of the reliefs they sought before the Court below. According to Counsel, this is contrary to the decision of this Court in the case of FINANCE BANK LIMITED V. AFRICA ANGLE LIMITED AND OTHERS'2’, where we said that it is improper for the memorandum of appeal to include arguments. Counsel further argued that in its judgment, the Industrial Relations Court gave reasons as to why it did not award the Appellants any of the reliefs they claimed. Counsel stated that although the contracts of employment were fixed term contracts, clause 1.3 provided that they were conditional upon the continued J14 existence of the contract between the Respondent and KCM. That the Appellants’ contracts were terminated following the termination of the contract between the Respondent and KCM. Coming to the third ground of appeal, where the Appellants faulted the lower Court for not having considered the clause on retrenchment in the Appellants’ contracts, Counsel submitted that the relevant provision in this regard is section 26B (3) of the EMPLOYMENT ACT(ii|, which provides that- “26B (3) An employee whose contract of service has been terminated by reason of redundancy shall- (a) be entitled to such redundancy payment as agreed by the parties or as determined by the Minister, whichever is the greater; and (b) be paid the redundancy benefits not later than the last day of duty of the employee: provided that where an employer is unable to pay the redundancy benefits on the last day of duty of the employee, the employer shall continue to pay the employee full wages until the redundancy benefits are paid.” Counsel submitted that according to section 26B (3), the redundancy pay must be agreed upon by the parties. That in this case, the Respondent and the Appellants, through their Unions, agreed upon a termination package which the Respondent paid to the Appellants. That it was surprising that the 1st Appellant, who J15 was a signatory to that agreement, was in the forefront of refusing the agreement. In Counsel’s view, the termination package paid to the Appellants was above that which would have normally been paid, had the Respondent applied the traditional maximum rate of two months’ pay for each completed year of service. That this was because all the Appellants served for less than a year under their respective contracts. On the fourth ground of appeal, Counsel repeated the arguments under their response to the second and the third grounds of appeal. Counsel added that section 21 of the EMPLOYMENT ACT(li| could not be applied to the Appellants because that section is only applicable to oral contracts of service. With regard to the fifth ground of appeal, Counsel submitted that the negotiation agreement was generated on 21st November, 2011. That the signing of that agreement was only delayed to the date after the Appellants were given letters of termination of employment because the Unions had demanded that they would only sign the agreement after seeing the pay slips of what would be paid to the Appellants as terminal benefits. J16 As for the sixth ground of appeal, Counsel stated that the package that was negotiated by the Unions was the same as the one that was contained in the termination letters. Counsel further stated that in any case, the argument relating to the validity of the letters of termination was not raised in the lower Court. On the seventh ground of appeal, Counsel submitted that the contention by the Appellants relating to the mode of exit from employment was not part of the issues that were put before the lower Court. To support this argument, Counsel relied on this Court’s decision in the case of WILHEIM ROMAN BUCHMAN V. ATTORNEY-GENERAL'3*, where we said that- “A matter that is not raised in the Court below cannot be raised before a higher Court as a ground of appeal.” Counsel argued that even assuming that this Court allowed the Appellants to raise the issue of the mode of exit, section 74 of the EMPLOYMENT ACT'1*1, which they are relying on did not apply to them because in this case, the termination package was agreed upon between the Respondent and the Appellants’ Unions. Coming to ground eight, Counsel submitted that clause 1.3 of the Appellant’s contracts of employment clearly made their J17 employment conditional on the continued existence of the contract between the Respondent and KCM. In relation to the submission by the Appellants that it was the Respondents who caused the termination of its contract with KCM, Counsel contended that the evidence by the Respondent’s witness, George WILSON, showed that the Respondent stopped working on the contract with KCM because KCM was not paying for the services. We have carefully considered the evidence on record, the heads of argument filed by Counsel and the judgment appealed against. Although the Appellants’ notice of appeal contains nine grounds of appeal, in their heads of argument, they only argued the first eight grounds. We, therefore, will take it that they have abandoned the ninth ground of appeal. In our view, the Appellants’ eight grounds of appeal have raised only three broad issues for our determination. These are- 1. whether the Respondent breached the Appellants’ respective contracts of employment when it terminated the said contracts; 2. the termination package that the Appellants were entitled to under their contracts of employment; and J18 3. whether the lower Court properly directed itself when it awarded costs to the Respondent. We will deal with the three issues in the order we have listed them above. The first issue is- whether the Respondent breached the Appellants’ respective contracts of employment when it terminated the said contracts. The kernel of the Appellants arguments in this regard is that according to clauses 2.4 and 2.4.5, their contracts of employment were fixed term contracts. That, therefore, the Respondent could not validly terminate the said contracts before they expired unless it did so under clause 2.4.5, which provided for retrenchment. In their view, the Respondent could not invoke clauses 1.1 and 1.3 because these clauses made their employment conditional on the Respondent’s contract with KCM when the Appellants were not employed by KCM. That even assuming clauses 1.1 and 1.3 were applicable, the Respondent could not rely on them because it was the one that stopped performing on its contract with KCM. We have carefully looked at the letters terminating the Appellants’ contracts of employment. The said letters indicate that J19 the terminations were effected pursuant to clause 1.3 of the contracts of employment. After studying clauses 1.3 and 2.4 of the Appellants’ contracts of employment, we are of the firm view that the Respondent was right when it used clause 1.3 to terminate the employment contracts of the Appellants. Clause 1.3 clearly provided for the situation under which the Appellants’ contracts were terminated. It stated that the period of employment for the Appellants was dependent and conditional upon the existence of the Respondent’s contract with KCM. Our interpretation of that clause is that it did not matter which party caused the termination and for what reason. This is clear from the wording of the clause which provided, in the relevant portion, that- “In the unlikely event of this contract with the Client being terminated for any reason whatsoever, prior to the completion of the tasks or duties assigned to the Employee, this fixed term contract of employment will likewise terminate.” It is evident from the letter at page 180 of the record of appeal that it was KCM which terminated the Fitwaola Contract. Although in this letter, KCM made reference to alleged breaches of contract by the Respondent, it is the one that effectively terminated the contract when it stated; “Considering the above we hereby J20 terminate the contract with immediate effect under clause 39.7”. (Emphasis by underlining is ours) Further, although clause 2.4 of the contracts, of employment stated that the contracts were fixed term contracts, this did not, in any way, mean that the contracts could not be terminated under any circumstance. The reference to the contracts being fixed term contract only meant that the contracts were for a fixed duration. In addition to the above, we are of the considered opinion that the Appellants cannot claim that clause 1.3 was inapplicable to them. The employment relationship between the Appellants and the Respondent was governed by the contracts of employment. The Appellants signed the said contracts of employment thereby accepting the terms contained in the said contracts. We, therefore, hold that in dismissing the Appellants, the Respondent did not breach the Appellants’ respective contracts of employment. The second issue is-what termination package were the Appellants entitled to under their contracts of employment? J21 The Appellants have argued that the Respondent should have paid them their benefits on the basis of the negotiation agreement signed between the Respondent and the Unions and not on the basis of the package contained in the termination letters. They have claimed that their termination package should have included wages up to the time their contracts would have expired. According to them, this is in accordance with section 21 of the EMPLOYMENT ACT(ii| and clause 1 (ii) of the negotiation agreement. We must state from the outset that a study of section 21 of the EMPLOYMENT ACT(U| establishes that the section only applies to oral contracts. It cannot, therefore, apply to the Appellants who were serving under written contracts. As for the argument anchored on clause 1 (ii) of the negotiation agreement, a cursory look at the said agreement establishes that it provided for benefits payable on termination of the individual contracts of employment. In fact the terminal benefits contained in the letters of termination and those contained in the negotiation agreements, were exactly the same. They both provided for the payment of the following- J22 1. two months’ full pay in lieu of notice, starting 30th November, 2011 ending 31st January, 2012; 2. accrued leave days up to 318t December, 2011; and 3. holiday allowance on pro-rata up to 31 December, 2011. In any case, the claim by the Appellants, to be paid wages for the remainder of their contracts of employment, is untenable at law. This Court pronounced itself on this issue when we decided the case of KITWE CITY COUNCIL V. WILLIAM NG’UNI14’. That case was an appeal against a Judgment of the High Court in an action where the Respondent claimed terminal benefits and damages for breach of contract and for loss of earnings, arising from the Appellant’s delay in processing his resignation. The learned trial Judge, among other things, awarded the Respondent terminal benefits equivalent to the retirement benefits he would have earned if he had reached retirement age. On appeal, this Court held that it is unlawful to award a salary or pension benefits, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment. We specifically said the following: “We are, therefore, dismayed by the order to award terminal benefits equivalent to retirement benefits the plaintiff would have earned if he had reached retirement age had he not been constructively J23 dismissed. Apart from the issue of constructive dismissal, which we have already dealt with, we have said in several of our decisions that you cannot award a salary or pension benefits, for that matter, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment.” Applying the principle we pronounced in the KITWE CITY COUNCIL*4’ case, we hold that the Appellants cannot be paid salaries and allowances for the remainder of their respective contracts of employment. In fact the 1st Appellant and a Mr. C. Habeenzu, another one of the Appellants, participated in the negotiations on behalf of the Unions. The 1stAppellant signed the negotiation agreement as Branch Chairman for MCAWUZ while Mr. Habeenzu NUMAU signed as Branch Chairman for NUMAW. On the basis of the above, we hold that the Respondent properly paid the Appellants their terminal benefits. The payments were made in accordance with both the letters of termination as well as the negotiation agreement. Lastly on the third issue, as to whether the lower Court properly directed itself when it awarded costs to the Respondent, the Appellants have argued that they should not have J24 been ordered to pay costs because they are living in extreme poverty. It is trite law that the award of costs is in the discretion of the Court. Although there are certain guidelines which the Court must follow in exercising that discretion, a successful party will not normally be deprived of his or her costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for that party to be granted the costs. The authors of HALSBURY’S LAWS OF ENGLAND’^’, Volume 37, have said at paragraph 717 that- “On the principle that costs follow the event there is such a settled practice that a successful party should receive his costs that it is necessary for the unsuccessful party to show some ground for the court to exercise its discretion to refuse an order which would give them to him, and the question whether the ground is sufficient is entirely for the judge at the trial, and if he has exercised his discretion on the facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the trial the Court of Appeal may not intervene even if it deems his reasons insufficient.” In this case, we have no reason to doubt the fact that the lower Court exercised its discretion to award costs to the Respondent judicially. Also this Court decided in the case of JOHN PAUL MWILA KASENGELE(1) that inability to pay is not a defence to a claim and is not a bar to entering judgment in favour of a successful litigant. We particularly said the following in that case: J25 Inability to pay has never been and is not a defence to a claim. It is not a bar to entering judgment in favour of a successful litigant”. Consequently, we hold that the lower Court properly exercised its discretion to award costs to the Respondent. On the totality of the issues in this matter, we hold that there is no merit in this appeal. We dismiss it with costs to be taxed in default of agreement. I. C. Mambilima CHIEF JUSTICE SUPREME COURT JUDGE J26