Mpelembe Drilling Company v Sinkamba and Ors (Appeal 19 of 2002) [2003] ZMSC 156 (8 April 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 19/2002 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: MPELEMBE DRILLING COMPANY PLAINTIFF AND WISDOM SINKAMBA AND 1115 OTHERS RESPONDENT CORAM: LEWANIKA, DCJ, CHIRWA, CHIBESAKUNDA JJS On I6lh April, 2002 and 8,h April, 2003. For the Appellant: C. MAGUBWI of Lloyd Siame & Company For the Respondent: K. MSONI of J. B. Sakala & Company. JUDGMENT Lewanika, DCJ, delivered the judgment of the court. Authorities referred to: 1. Association of Copper Mining Employers and the Attorney-General Vs Mineworkers Union of Zambia S. C. Z. Appeal No. 129 of 1998 (unreported) This is an appeal against the decision of the Industrial Relations Court in interpreting the meaning of Clause 55 of the collective agreement entered into between the Appellant and the Mineworkers Union of Zambia as well as the order for costs made in the court below. The brief facts of this case are that the Appellant and the Mine Workers Union of Zambia signed a collective agreement on 10th July, 1998 to cover conditions of service and employment for employees represented by the Union for the period 1st April, 1998 to 31st March, 1999. The Appellant had been previously a subsidiary of Zambia Consolidated Copper Mines Limited but by an agreement made on 31s’ October, 1997 the shareholding in the Appellant company was bought by a management buy out team. All the employees of the Appellant company were taken over by the new shareholders. Clause 55 of the collective agreement provided as follows 55.0 SERVICE INTRUST (a) "Service in trust" shall mean the value of accrued calculated terminal benefits arising from an employee’s service with Mpelembe Drilling Company including its predecessors where applicable, in accordance with the Administrative Rules, up to the effective date of MDCL’s privatisation. The question that arose to be decided in the court below was whether the terminal benefits are payable despite the mode of exit from employment. The court decided as foliows:- "On whether or not the terminal benefits held in trust are payable despite mode of exit, we have no difficulty at all in answering the question in the affirmative. We accept the invitation by Mr. Msoni to give the words in the collective agreement the same meaning as they were given by us and upheld by the Supreme Court in Association of Copper Mining Employers and the Attorney-General vs Mine Workers Union of Zambia. To be specific to this case, we find that the terminal benefits are payable whether one resigns or leaves employment through other means. " As pointed out by counsel for the Appellant in that case, we were concerned with interpreting a clause namely clause 3(d) of a collective agreement entered into between ZCCM and the Mine Workers Union. That clause provided as follows:- 3(d) "where an employee's accrued calculated benefits arising from his/her service with ZCCM have not been utilised by the employee, the employer shall, upon termination of employment pay the employee his/her accrued benefits for service with ZCCM regardless of the mode of exit” The issue before us in the case of The Association of Copper Mining Employers was whether the words "regardless of the mode of exit" in the clause contravened Section 26 of the Employment Act and were against public policy. The wording of clause 55 in the instant case is different from the wording of clause 3(d) in that case. In clause 55 the operative words are, "in accordance with the Administrative Rules, up to the effective date of MDCL'S Privatisation". In interpreting Clause 55 the court below imported into the clause the words "regardless of the ode of exit", which are not to be found in clause 55. In doing so, the court fell into serious error and we would allow the appeal and set aside the holding of the court below and find that the terminal benefits payable to the employees of the Appellant under Clause 55 are to be paid in accordance with the Administrative Rules up the effective date of the Appellant’s privatisation. On the question of costs, the court below ordered that the cost be borne by the Appellant. As pointed out by counsel for the Appellant the court on J4 and J5 had identified six issues which were to be resolved by it. Of the six, five were resolved in favour of the Appellant and only one in favour of the Respondent. Counsel submitted that by and large the Appellant was the successful party and therefore should not have been condemned in costs but instead costs should either have been bome by the Respondents or each party should have borne their own costs. We have had occasion to point out in the past that with regard to costs, the general rule is that a successful party should not be deprived of his costs unless his conduct in the course of the proceedings merits the court’s displeasure or unless his success is more apparent than real. The court below did not assign any reasons for condemning the Appellant in costs and we on our part can find no reason why the Appellant is so condemned. We would also allow the appeal on this ground and set aside the order for costs and in its place we order that the costs below and here shall be bome by each party. D. M. Lewanika DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE L. P. Chibesakunda SUPREME COURT JUDGE 4