World Vision International v Banda (Appeal 113 of 1999) [2002] ZMSC 131 (15 February 2002)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 113/99 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: WORLD VISION INTERNATIONAL APPELLANT AND MISHECK BANDA RESPONDENT Coram: Lewanika, ADCJ, Chirwa, Chibesakunda, JJS On 31st July, 2001 and 15,h February, 2002 For the Appellant: N. NCHITO of M. N. B. For the Respondent: P. CHISI of Chifumu Banda & Associates. JUDGMENT Lewanika, DCJ, delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court granting the respondent damages for unlawful dismissal from employment. The evidence on record is that the respondent was employed by the appellant by letter dated 19th October, 1984 as Area Manager. The letter provided, inter alia, that employment could be terminated by either party giving one month's notice or one month's Salary in lieu of notice. The letter of appointment referred to other conditions of service contained in the employees' Manual. The Manual provided for termination of service as follows:- J2 15 0 TERMINATION OF SERVICE 15.1: Except in the case of summary dismissal, termination of employment shall be subject to written notice of one month for grades 1-12, three months for Divisional Heads, and six months for grade 15. 15.2: The party terminating the employment without observing the said notice will pay the other party an indemnity equal to one month's salary for grades 1-12, three months for divisional heads, and six months for grade 15. By letter dated 16th February, 1989 the appellant terminated the respondent's employment by paying him one month's salary in lieu of notice. Following upon this termination the respondent instituted proceedings for:- 1. An injunction restraining the appellant from evicting him from Plot 5069, Nationalist Road, Lusaka. 2. A decleration that the termination of the respondent's service to the appellant is and was mala fide and therefore null and void. 3. Damages for unlawful discharge of the respondent’s employment by the appellant. The learned trial Judge found that on the evidence before him that the relationship between the appellant and the respondent was not that of a pure master and servant relationship and in support of his finding he relied on the letter of appointment and clause 16.1. of the employee's Manual. In doing so, the learned trial Judge completely ignored J3 the provisions of clause 15 of the same Manual. He found further support for his finding in the fact that authority was not sought from the labour officer to terminate the respondent's employment under the Employment Act. In doing so he again ignored the fact that there was evidence on record in the form of a letter from the Principal Labour Officer dated 20(h June, 1991 stating that the Employment Special Provisions in force at the time namely Statutory Instrument No. 135 of 1975 did not apply to the respondent's case. There was no basis for the finding that the learned trial Judge arrived at. The relationship between the appellant and the respondent was governed by the conditions contained in the letter of appointment and the employee's Manual which both contained provisions for terminating employment by one month's notice or payment in lieu. This was a case of a master and servant relationship and the respondent's employment was terminated in accordance with his conditions of service. We would therefore allow the appeal and set aside the finding of the court below. In the light of the respondent's circumstances, we make no order as to costs. D. M. LEWANIKA DEPUTY CHIEF JUSTICE D K CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURJUDGE FOR YOUR SIGNATURES PLEASE LEWANIKA, DC J........................................................................... CHIRWA, JS....................................................................................... CHIBESAKUNDA, JS..................................................................... IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 49 OF 2001. HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LIEBIES ENTERPRISES LIMITED APPELLANT AND SOLLY ISMAIL PANDOR RESPONDENT CORAM: Ngulube, CJ, Lewanika, DCJ, Chibesakunda, JS On 27th September, 2001, and 25lh January, 2002. For the Appellant: G. R. KAYUKWA OF SAMBO, KAYUKWA & CO. For the Respondent: P. MVUNGA OF MVUNGA ASSOCIATES. JUDGMENT Lewanika, DCJ, delivered the judgment of the court. When we heard this appeal on 27lh September, 2001 we allowed the appeal, set aside the order allowing re-entry and execution and said we would give our reasons later and we now do so. In this appeal we shall refer to the appellant as the plaintiff and the respondent as the defendant which is what they were in the court below. The short history of this matter is that on 7th July 1999 the plaintiff issued a writ of summons against the defendant claiming for: 1. A declaration that the defendants are not entitled to levy distress on the plaintiff and the same is contrary to clause 2 of the tenancy agreement entered into between the parties J2 2. Specific performance of the tenancy agreement dated 1st November, 1996 relating to S/D 121/122 of 737, Emmasdale. 3. An injunction restraining the defendant, his servants or agents or whomsoever from interfering with the quiet enjoyment of the demised Property known as S/D 121/122 of 737, Emmasdale, Lusaka, and to restrain the defendant from interfering with the business operations of the plaintiff at the demised Property. 4. Damages for wrongful distress and interest. 5. Damages for loss of business occasioned by the defendant's wrongful distress on the demised Property. On 7th October, 1999 the Plaintiff was granted an interim injunction restraining the defendant his servants or agents from interfering with the quiet enjoyment and possession of the premises known as F/737/121 and F/737/122 Mimosa Road, Lusaka pending the determination of the main action. The defendant subsequently applied for a discharge of the interim injunction which application was granted on 26th January, 2001. In his Ruling the learned Trial Judge said, "I grant the Applicant's application and order that the order for interim injunction granted to the Respondent on 2nd October, 1999 be discharged forthwith." The order discharging the interim injunction which was drawn up by the defendant on behalf of his Advocates is different from the Ruling and read as follows; "It is hereby ordered that the interim injunction granted on the 7th October, 1999 is hereby discharged and that the defendant herein is at liberty to re-enter his property known as F/737/121 and J3 : F/737/122, Mimosa Road, Emmasdale or in the alternative to execute for rentals due." Although the order did not reflect what was contained in the Ruling, regrettably the learned Trial Judge appended his signature to it and on the strength of it not only did the defendant re-enter the demised premises but also levied execution by issuing a warrant of distress not only against the plaintiff but also against the directors of the plaintiff who were not parties to the action. The plaintiff then appealed to the learned Trial Judge for a stay of execution pending an application to set aside the warrant of distress, which application was refused and is the subject matter of this appeal. We note from the Ruling that when this application was being considered by the learned trial Judge he did not have the file of the proceedings and had no access to his previous notes. In his ruling made on 26th January, 2001 the learned trial Judge did no more than set aside the interim injunction that he had granted the plaintiff on 7th October, 1999. The order as drawn up by the defendant is at variance with the ruling and should not have been issued, the same applies to the warrant of distress. It was for this reason that we allowed the appeal and set aside the order. The costs of the appeal are to be borne by the defendant, to be taxed in default of agreement. M. M. S. W. Ngulube CHIEF JUSTICE J4 D. M. Lewanika L. P. Chibesakunda DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE