Chibamba v Kabwe Transport Co Ltd (SCZ Appeal 4 of 1993) [1993] ZMSC 62 (25 March 1993)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA. (Civil Jurisdiction) SCZ AddmI Na 4 a* iqq? ** Appeal No. 4 Of 1993. MAJOR CELESTINO CHIBAMBA Vs KABWE TRANSPORT CO. LTD. Appellant Respondent Coramt Sakala, Chaila and Chirwa. J. J. J. S. 25th March. 1993. For the appellant* Mr. C. M. Mukuka of E. M. Mukuka and Company. For the respondent. Mr. H. H. Ndhlovu of H. H. Ndhlovu and Company. Sakala J. S. delivered the judgment of the court. JUDGMENT This is an appeal against a judgment of the High Court awarding the respondent the sum of K62.227 as money owed plus interest at 12 percent from the date of the judgment. The salient common facts leading to this appeal* as can be ascertained from the pleadings* the oral and documentary evidence, are that, the appellant was an employee of the respondent. Prior to the employment, the appellant had approached the respondent's sister company for a quotation to complete the construction of his house. He was given the quotation. It was carmen cause that the respondent's sister company completed the house and the appellant subsequently occupied it. It was also common cause that the respondent rendered a bill to the appellant in the sum of K88*848.45 for work done which sum after payments had been made came to KSrf. OOO. There was also evidence which was not indlspute that the respondent repaied the appellant's Land Rover motor vehicle for which a balance of K1.227 remained unsettled. These are the two sums which were the subject of the respondent's claims in the court below. It was further common cause that after the respondent's sister company had completed the construction of the house, some defects were detected for which the respondent were willing to pay for them provided that the appellant had had the same assessed and valued. We must hasten to mention that the learned trial judge made an order In respect of the defects to the effect that an Independent J2. valuer visits the house to assess the value of the defects. Numerous documents and correspondence between the appellant and the respondent were produced at the trial wherein the respondent were inquiring how the appellant intended to settle the loan and proposing some methods to him. The correspondence from the appellant, contrary to the defence and counter claim pleaded, acknowledged the existence of the loan. During the trial the appellant contended that the construction of the house was part of an agreed condition of employment to entice him to resign from the Zambia Army in order to join the respondent company. Another enticement according to the appellant was free medical treatment in South Africa. The learned trial judge reviewed the pleadings, the oral and documentary evidence and carefully examined the submissions by both counsel. She identified the issue for determination to be whether the contract of employment provided for a condition of building a free house for the appellant and for free medical treatment in South Africa. The court found that on a consideration of all the evidence before it, a loan agreement existed and that the respondent's sister company completed the construction of the appellant's house. The court also found that a balance in the sum of K1,227 from the repair of the appellant's vehicle had not been settled. Judgment in favour of the appellant in the sums claimed was accordingly entered. On behalf of the appellant, four grounds of appeal were filed. Mr. Mukuka on behalf of the appellant filed.written heads of argument based on the four grounds of appeal. In this court, Mr. Mukuka only argued the second ground of appeal leaving the court to take into account his written arguments. We intend to deal with the appeal in the order of the grounds. We must also mention that Mr. Ndhlovu filed written heads of argument on behalf of the respondent and only replied to Mr. Mukuka's arguments on the second ground. The first ground of appeal was that, the learned trial judge erred in fact when she decided the matter on credibility based on the documentary evidence and the submissions only. If we understood the written heads of argument correctly on the first ground the submission appeared to be to the effect that the issue of credibility should be decided on oral and documentary evidence and specific findings of contradictions and evasiveness based on that oral and documentary evidence made before a court 3/... \ can reject the evidence of a party. Counsel's contention in his written arguments was that failure to challenge correspondence produced was not a basis for making a finding based on^ credibility. Counsel submitted that in the absence of contradictions ih the evidence of the appellant a decision based on credibility was a misdirection.’ In his written arguments Mr. Ndhlovu submitted that the court had a duty to examine the documents before it and that the documents spoke for themselves. \ We have carefully examined the record of the proceedings before the learned trial Judge. We note that the large portion of the evidence consisted of documents which we accept were not in dispute. We &lso note that while in his oral evidence, the appellant was trying to prove that the completion of his house was part of a condition of his employment, the numerous agreed documents, about twenty of them, some of them his own letters did not support him and actually established that each party was acknowledging the existence of the house loan agreement. In one of the letters dated 27th May, 1986 to the chairman of Amaka Holding Ltd, the holding company of the respondent and its sister company, the appellant wrote: “I propose to repay the housing loan to Kajema at the rate of K800.... by way of deduction from my pay." In reply to one of the letters, the appellant on 8th April, 1987 among others things wrote the chairman as follows: "as regards the housing loan repayment method, 1 have really given the whole issue a thorough and careful thought and due consideration.* On the question of credibility, whether conditions for employing the appellant existed or not, the learned trial Judge was duty bound to consider the documentary evidence. This evidence contradicted the appellant's oral evidence on the existence of a house loan. The trial judge's findings based on credibility cannot therefore be criticised. This appeal based on the first ground cannot therefore succeed. The second ground of appeal was that the drawing of an inference of a 4/... J4. loan advance when there was no evidence to support that inference was a misdirection. This is the only ground which Mr. Mukuka argued before us at great length. Under this ground he raised a number of issues, among them, that the respondent had no standing in these proceedings because the completion of the construction of his house was done by Kajeema Construction Company Ltd and that no loan arrangement existed between him and the respondent. The evidence on record which was not disputed was that Kajeema Construction Company Limited is a sister company to the respondent and that the appellant having been an employee of the respondent, by an arrangement the appellant was to pay Kajeema Construction Company Limited through the respondent. The trial judge found that the correspondence established that the appellant had accepted that the loan was from the respondent his employers. In any event the appellant's major argument was that no loan existed contrary to the ample evidence that was before the court. This ground cannot also succeed. The third ground, that the learned trial court misapprehended or misunderstood the evidence and the fourth ground that the learned trial judge gave unconclusive judgment without resolving the dispute between the parties have clearly been taken care of by our conclusions when dealing with grounds one and two in that once the learned trial judge accepted the version of the respondent which version proved the existence of a house Ioan then the court resolved the only major issue between the parties and therefore correctly entered judgment in favour of the respondent. We uphold the learned trial judge „ and dismiss this appeal with costs. To avoid any doubt we also uphold the learned trial Judge's order for assessment and valuation of the defects and to avoid argunents as to who should be the valuer, we direct that in default of agreement on who should carry out the assessment and valuation, It should be done by a Government Valuation officer at the expense of the respondent. The defects to be assessed and valued must be as at the time they immediately appeared after the completion of the house. The amount awarded will then be reduced by the amount of the value of the defects. E. L. Sakala, SUPREME COURT JUDGE M. S. Chaila, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.