Lumwana Mining Company Limited v Sumaili Mbewe [2019] ZMCA 380 (29 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 156 OF 2018 HOLDEN AT NDOLA I (Civil Jurisdiction) BETWEEN: I2 (cid:9) 13 2Q1J SOX LUMWANA MINING COMPANY LIMITED (cid:9) APPELLANT AND SUMAILI MBEWE (Suing in his Capacity as President of the Consolidated Miners and Allied Workers Union of Zambia (CMAWUZ)) (cid:9) RESPONDENT CORAM: Chashi, Mulongoti and Lengalenga, JJA ON: 21st and 29' August 2019 For the Appellant: (cid:9) S. Chisenga, Messrs Corpus Legal Practitioners For the Respondent: (cid:9) J. Mataliro and M. Mwachilenga, Messrs Mumba Malila and Partners JUDGMENT CHASHI JA, delivered the Judgment of the Court. (cid:9) Cases referred to: -f2- 1. Luciano Mutale and Jackson Chomba v Newstead Zimba (1988 - 1989) ZR, 64 2. Sentor Motors Limited and Three (3) Other Companies In Re: The Companies Act - SCZ Judgment No. 9 of 1996 3. United National Union of Private Security Employees, Sailas Kunda and Others v Panorama Security and Zambia Union of Security Officers and Allied Workers - SCZ Judgment No. 96 of 2013 4. Buchman v Attorney General (1993-1994) ZR, 131 5. Rookes v Barnard (1964) AC, 1129 6. Times Newspaper Zambia Limited v Kapwepwe (1973) ZR, 292 7. Simon Kapwepwe v Zambia Publishing Company Limited (1978) ZR, 15 8. Paul Roland and Harrison v The Attorney General - SCZ Judgment No. 58 of 1993 Legislation referred to: 1. The Industrial and Labour Relations Act Chapter 169 of the Laws of Zambia 1.0 INTRODUCTION -J3- 1.1 (cid:9) This appeal emanates from the Judgment of the High Court, Industrial and Labour division delivered by the learned Hon. Mr. Justice D. Mulenga. 1.2 In the said Judgment, the learned Judge ruled in favour of the complainant now the Respondent. 2.0 BACKGROUND TO THE CASE 2.1 On 141h February, 2010, the Respondent registered a trade union pursuant to The Industrial Relations Act, 1990, The Trade Union (Registration) Regulations, 1991, Regulation 3 as evidenced at page 30 of the record of appeal (the record). 2.2 Subsequently, a number of the Appellant's employees who belonged to the Mine Workers Union of Zambia (MUZ) and National Union of Miners and Allied Workers (NUMAW) withdrew their membership in order to join the Respondent by signing cancellation and joining forms. 2.3 The Respondent then engaged the Appellant with a view to enter into a recognition agreement, which the Appellant declined for the following reasons: -J4- (i) That the Respondent failed to show proof that they had met the legal requirement of a minimum of twenty-five (25) members who are the Appellant's employees. (ii) That the Respondent cannot represent employees who belong to the mining industry or sector, since it was not established within the mining industry or sector, but represents various industries not related to mining activities. (iii) That the Respondent's executive members had not availed the Appellant proof of their employment status and job titles. 2.4 As a result, the Respondent declared a dispute and referred the matter to a Conciliator to determine the issues which were raised by the Appellant. 2.5 The Conciliator ruled in favour of the Respondent. The Appellant however did not heed the ruling, prompting the Respondent to lodge a complaint in the court below seeking the following reliefs: (i) (cid:9) An Order to compel the Appellant to enter into a recognition agreement with the Respondent. (cid:9) -J5- (ii) An order that the Appellant begins to remit union dues to the Respondent as and when they fall due (iii) Punitive damages 3.0 FINDINGS OF THE COURT BELOW 3.1 After consideration of the evidence, arguments and the relevant provisions of the law, the learned Judge opined as follows: 3.1.1 That the Respondent was registered with the mandate of representing employees in the mining and allied industry and the class of employees the Respondent could represent were approved by the Labour Commissioner. Thus, the Appellant's submission that the Respondent could not represent its employees because it has members from other sectors could not therefore hold any water. 3.1.2 On the minimum number of employees, the learned Judge made reference to Sections 63 and 64 of The Industrial and Labour Relations Act' and was of the view that Section 63 relates to the requirement of an employer with a minimum of 25 eligible employees to -J6- register with the Labour Commissioner. According to the learned Judge when that is read with Section 64 (1) and (2), it can be imputed that it is a requirement that a Union should have a minimum of 25 eligible employees before it can be recognised by the employer. 3.1.3 In interpreting Section 22 (1) of The Industrial and Labour Relations Act', the learned Judge was of the view that payment of subscription fees being one of the prerequisites of union membership, an employee may withdraw membership from a union he belongs to by asking his employer to stop deducting union subscription fees and giving three months' notice in writing to the union concerned. 3.1.4 That the issue of withdrawal of membership from the union is between the member and the union concerned and therefore it is not for the Appellant to decide which union an employee should join or not join. 3.1.5 On the issues of the Respondent's executive members not being qualified to be members and only one of the Appellant's employees being part of the union -J7- executive, the learned Judge opined that the elections of the union executives are regulated by the Labour Commissioner within the confines of The Industrial and Labour Relations Act' and is therefore not a preserve of the Appellant to decide who should hold office in the union. 3.1.6 The learned Judge then concluded that the Appellant did not have any justifiable reason for refusing to recognise the Respondent as a union. Further that, the Appellant is infringing on its employees' right of freedom of association and belonging to a trade union of their own choice. 4.0 DECISION OF THE COURT BELOW 4.1 (cid:9) The learned Judge as a consequence of his findings made the following Orders; 4.1.2 (cid:9) That the Appellant should forthwith embark on a process of entering into a recognition agreement with the Respondent which should be concluded within thirty (30) days. 4.1.3 (cid:9) That by the end of September 2018, the Appellant -J8- should start remitting the union members contributions of the concerned employees through the pay roll. 4.1.4 (cid:9) That the Appellant pays punitive damages in the sum equal to the contributions which the initial prospective thirty-one (3 1) union members who were listed at the time of the application or proposal for entry into a recognition agreement should have paid. 5.0 GROUNDS OF APPEAL 5.1 (cid:9) Disenchanted with the Judgment, the Appellant has appealed to this Court advancing four grounds of appeal as follows: (i) The court below erred in law and fact when it failed to follow binding judicial precedent in the case of Luciano Mutale and Jackson Chomba v Newstead Zimba' (which case was brought to the attention of the Judge), that the issue of withdrawal of membership from a union is between the member and the union concerned. (ii) The court below erred in law and fact when it wrongly concluded that the employees purported to belong to the -J9- Respondent had met the legal requirement of three (3) months notice for withdrawal of union membership when there was no such evidence adduced before the trial court to support such a conclusion. The court below erred in law and fact when it failed to adjudicate on all issues before it and instead took an unbalanced or one-sided evaluation of the evidence and submissions which had been brought before it and wrongly made findings on behalf of the Respondent. (iv) the court below erred in law and fact at page J14 of its Judgment when it reached the patently erroneous position that "... the respondent, having without justification refused and or neglected to enter into a recognition agreement with the complainant is hereby condemned to punitive damages..." when evidence on record showed that the Respondent refused to sign the recognition agreement because the complainant had not met the legal requirements relating to the notice period, minimum number of members and sector for which the complainant purports to recruit employees from and -J10- given that punitive damages are rarely awarded and only in cases where the respondent was vindictive, malicious or showed contemptuous disregard of the complainants' rights. 6.0 ARGUMENTS IN SUPPORT OF THE GROUNDS OF APPEAL 6. 1 In respect to the first ground, Mr. Chisenga, Counsel for the Appellant submitted that in the Luciano Mutale' case, it was pointed out that the issue of withdrawal of membership from the union is between the member and the union concerned and that the withdrawal ought to be done individually or collectively through the union concerned. Unfortunately, the court below failed to sufficiently consider this position despite the case having been brought to its attention and in the process failed to abide by judicial precedent of stare decisis. 6. 1.1 (cid:9) That it is the Appellants contention that the employees ought to have submitted withdrawal forms to both MUZ and NUMAW before they could purportedly join the Respondent. The withdrawal forms they should have submitted are such as -111- appears at pages 173 and 174 of the record, which they did not. 6.1.2 (cid:9) According to Counsel, the failure by the learned Judge in the court below to consider the Luciano Mutale' case was an attempt to depart from the binding precedent of the said case and this Court should accordingly find and reverse the decision of the court below. 6.2 In respect to the second ground of appeal, our attention was drawn to Section 22 (2) of The Industrial and Labour Relations Act' which provides as follows: '(1) An employee may, by agreement with an eligible employer, deduct the amount of subscription prescribed by the constitution of the trade union from the wages of such eligible employee if the employee is a member of such trade union. (2) An eligible employee may at any time, withdraw the agreement referred to in subsection (1) by giving three months' notice, in writing to the trade union concerned." -J12- 6.2.1 (cid:9) According to Counsel, there is no evidence on record of any form of correspondence to support the finding by the learned Judge that the Respondent had met the three (3) months notice for withdrawal of the union membership. 6.2.2 (cid:9) Counsel submitted that, this is an appropriate case in which this Court should interfere with the finding of fact as the findings were unfounded and ought to be reversed for having been made in the absence of any relevant evidence. 6.3 The third and fourth grounds of appeal were argued together. It is the Appellant's argument that, it was a misdirection on the part of the court below when it failed and/or neglected to determine all issues that were in dispute between the parties. The case of Sentor Motors Limited and Three (3) Other Companies' was cited were the Supreme Court held that, it is the duty of the Court to adjudicate all matters brought before it. 6.3.1 (cid:9) It was contended that the court below failed to adjudicate on the issue of whether the Respondent had met the legal requirement of providing three (3) months (cid:9) (cid:9) -J13- notice of intention to withdraw union membership. The court abdicated its responsibility, which amounted to denial of justice. Further, that the court failed to determine the issue of whether the Respondent had the requisite number of twenty five (25) employees working for the Appellant as its members in order for the Appellant's employees to belong to the Respondent and for the parties to enter into a recognition agreement in accordance with Sections 63 and 64 of The Industrial and Labour Relations Act'. 6.3.2 (cid:9) Counsel submitted that it was clearly demonstrated during trial that the Respondent did not have the required numbers. That the names which were submitted by the Respondent as shown at pages 31-53 of the record of appeal consisting of thirty-one (31) employees upon verification proved that only ten (10) employees were non- unionised and could therefore not join the Respondent if they so wished. 6.3.3 (cid:9) Counsel further submitted that the reason why the -J14- Appellant refused to sign the recognition agreement was because the Respondent had not met the legal requirements aforestated. It was therefore, erroneous for the court below to fail to adjudicate on the issues. It erred by awarding the Respondent punitive damages as no evidence was adduced before the court below to show that the Appellant was vindictive, malicious or showed contemptuous disregard of the Respondents rights. 7.0 ARGUMENTS IN OPPOSING THE GROUNDS OF APPEAL 7.1 In response to the first ground of appeal, Mr. Mataliro, Counsel for the Respondent submitted that the Luciano Mutale' case cited by the Appellant did not deal with the issue of withdrawal of membership from a union as alleged by the Appellant, but the issue of power to expel a member of the union. That the ground is thus misleading. 7.1.1 (cid:9) Counsel submitted that the guiding case is that of United National Union of Private Security Employees, Sailas Kunda and Others v Panorama Security and Zambia Union of - j 15- Security Officers and Allied Workers' in which the Supreme Court interpreted Section 22 of The Industrial and Labour Relations Act'. It was contended that, in that case, the 2nd appellant did not send notices to both respondents, of their withdrawal from the 2nd respondent union. However, the notices were composite ones; where on one notice the names of employees giving notice together with their signatures were indicated. The Supreme Court noted that the notice was in writing and the signatures of the employee's names were indicated signifying that they had adopted the notice in their individual capacity. That the 2d respondent was left in no doubt, that those employees had decided to withdraw their membership. 7.1.2 (cid:9) Counsel submitted that; Section 22 does not provide for any special procedure to be followed in resigning from a union. (cid:9) The court below considered the United National Union Private -116- Security Employees-' case and was of the view that the issue of withdrawal of membership is between the member and the union concerned. 7.2. In response to the second ground, Counsel submitted that the ground is misleading and misconceived. According to Counsel, the issue raised in this ground was not raised in the court below. As such it is incompetent for determination. Reliance in that respect was placed on the case of Buchman v Attorney General4. 7.2.1 (cid:9) According to Counsel be that as it may, there is sufficient evidence on the record that a period in excess of three (3) months had passed between the date of commencement of the action. Therefore, the contention by the Appellant is misleading. 7.2.2 (cid:9) It was further submitted that there is evidence on record that the cancellation and joining forms were indeed served on the Appellant and a demand for (cid:9) (cid:9) a -J18- 7.4 In responding to the fourth ground of appeal, Counsel drew our attention to page 22 of the record where the learned Judge in the court below, had this to say: "As regards the complainant's claim for punitive damages, I must emphasize that the issue of employee's freedoms and rights should not be belittled or trivialised by employers. Employee's rights and freedoms, like any other human rights, are fundamental and constitutionally protected but have further been restated in The Industrial and Labour Relations Act'. 7.4.1 (cid:9) It was Counsel's contention that the court below after having assessed all the evidence came to the inescapable conclusion that the Appellant had trivialised and/or belittled the rights of the Respondent's members who had in clear and unambiguous terms given notice to the Appellant that they had joined the Respondent union and their union dues ought to be directed to the Respondent. 8.0 REASONING AND DECISION OF THIS COURT -J19- 8.1 (cid:9) We have considered the arguments of the parties and the Judgment being impugned. 8.1.1 (cid:9) In the first ground of appeal, the Appellant attacks the failure by the trial Judge in the court below to follow the Supreme Court decision in the case of Luciano Mutale1. A perusal of that case shows that the Appellant's reliance on that case is misplaced and misleading. In the said case, the Supreme Court was giving guidance on the relationship between ZCTU as a mother body and its affiliates by virtue of the Act. It did not make any reference to joining and withdrawal of membership of a union. That case is not of any assistance to the Appellant's case. 8.1.2 (cid:9) Section 22 (1) and (2) of The Industrial and Labour Relations Act' provides that when a member intends to withdraw from a union, he must give three months notice in writing to the union - J 20 - concerned. The Section neither prescribes the form the notice should take nor the procedure. What is important is that the union concerned is notified that the employee is withdrawing and joining another union. 8.1.3 (cid:9) The evidence on record shows that the affected employees, who at the time belonged to MUZ and NUMAW, signed cancellation and joining forms. Their intention was clear. It was to leave the unions they belonged to and to join the Respondent. At the same time, they authorised the Appellant to deduct subscriptions and remit the same to the Respondent. All this was brought to the attention of MUZ and NUMAW. 8.1.4 (cid:9) The withdrawal forms did not have to be in the form exhibited at pages 173 and 174 of the record as is being alleged by the Appellant. The learned trial Judge was therefore on firm ground when he found that the members, through the cancellation and joining forms they had signed, had effectively (cid:9) (cid:9) - J 21 - withdrawn their membership. The concerned unions and the Appellant were accordingly informed. 8.2. The allegation in the second ground of appeal is that there was insufficient evidence on record, to support the finding by the learned Judge that the concerned members had given three (3) months notice. Indeed, a perusal of the cancellation and joining forms did not provide for the requisite three (3) months notice as required under Section 22 (2) of the Act. However, in the case of United National Union of Private Security Employees' the Supreme Court held as follows regarding the three (3) months notice under Section 22 (2): "Coming to the provision, that requires three month's notice the fact that the composite notices did not provide for three months notice was not fatal. The two respondents should have merely reminded the employees that, in accordance with the law, their withdrawal would only take effect after three months. Therefore, when the 1st Appellant approached the 1st Respondent to enter into a recognition agreement on 1st June 2012, they ought not - J 22 - to have been any impediment, since in almost every case, the period of three months had elapsed from the time the composite notices were brought to the attention of the two respondents." 8.2.1 (cid:9) The evidence on record reveals that some cancellation and joining forms exhibited by the Respondent were signed in April 2016 and the letter by the Respondent requesting for recognition was done in May 2017. The period of three months had elapsed from the date of the forms. Therefore, the fact that the forms did not contain the three months notice was not fatal as the three months had elapsed. The Appellant should have approached the issue in the same manner as guided by the Supreme Court in the case of United National Union of Private Security Employees'. - J 24 - register with the Labour Commissioner and in accordance with Section 64, thereafter, enter into a recognition agreement with a trade union at the work place. It cannot be imputed from Sections 64 and 65, that where there is more than one union at a work place, each union must have a minimum number of twenty-five members. The learned Judge therefore misapprehended the law. 8.4. The fourth ground of appeal attacks the learned Judge's award of punitive damages to the Respondent. The object of an award of punitive or exemplary damages is to punish the defendant for his conduct in inflicting the harm and comes into play whenever the defendant's conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like. 8.4.1 (cid:9) In departing from the House of Lords decision in the English case of Rookes v Barnard' which limited the categories to which exemplary damages can be awarded, the Supreme Court in the case of - j 25 - Times Newspaper Zambia Limited v Kapwepwe6 held as follows: "(i) In Zambia, exemplary damages may be awarded in any case where the defendant has acted in contumelious disregard of the plaintiff's rights. Rookes v Barnard (1964) 1 All ER, 367 not followed in so far as it limited cases in which exemplary damages can be awarded to certain categories. (ii) The Court should first consider, what sum to award as compensatory taking into account the whole of any aggravating conduct of the defendant (i.e any conduct in contumelious disregard of the plaintiff's rights) and only then turn to consider whether this proposed award is sufficient to punish and deter the defendant and if not award some larger sum." 8.4.2 (cid:9) The aforestated principles were reaffirmed in the cases of Simon Kapwepwe V Zambia Publishing - j 26 - Company Limited' and Paul Roland and Harrison v The Attorney General8. 8.4.3 (cid:9) Contumelious disregard is defined by Thesaurus Legal as exhibiting lack of respect, rude and discourteous. That it implies rudeness as contempt arising from arrogance and insolence. Lexico-Free Dictionary defines it as scornful, insulting and insolent. It also entails conscious wrong doing in the sense of volition. 8.4.4 (cid:9) We note that in awarding punitive damages, the learned Judge took the view that the Appellant belittled or trivialised the issue of the employee's freedoms and rights. In our view that does not fall within the meaning of contumelious disregard. 8.4.5 The Appellant had misapprehended the interpretation of Sections 22, 63 and 64 of the Act and was labouring under the wrong belief, in their understanding of the aforestated provisions. (cid:9) (cid:9) -j27- In the view that we have taken, an award of punitive damages was not competent. 9.0 CONCLUSION 9. 1 The first, second and third grounds of appeal are devoid of merit and are accordingly dismissed, whilst the fourth ground of appeal succeeds. The appeal having substantially failed, this is an appropriate case to order that each party bears its own costs. COURT OF APPEAL JUDGE J. Z. MULONGOTI URT OF APPEAL JUDGE (cid:9) F. M. LENGALENGA COURT OF APPEAL JUDGE