Mungala and Anor v Post Newspaper Ltd (Appeal 133 of 2013) [2015] ZMSC 182 (19 November 2015)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 133/2013 SCZ/8/133/2013 (Civil Jurisdiction) BETWEEN: SYDNEY MUNGALA COLLINS CHALI AND 1st Appellant 2nd Appellant POST NEWSPAPER LIMITED Respondent Coram: Chibomba, Muyovwe and Malila, JJS On 3rd November, 2015 and 19th November, 2015 For the Appellants: Mr. Mwamba Chitundu of Messrs Barnaby & Chitundu, Advocates For the Respondent: Mr. Nchima Nchito, SC, and Mrs. M. N. Kateka of Messrs Nchito & Nchito JUDGMENT malila, JS, delivered the Judgment of the Court. Cases referred to: 1. Zambia Consolidated Copper Mines Limited v. James Matale, SCZ Judgment No. 9 of 1996. 2. Barclays Bank Zambia Limited v. Mundo Chola and Ignatius Mubanga, SCZ Judgment No. 35 of 1997. 3. A. M. I Zambia Limited v. Peggy Chibuye, S. C. Z Judgment No. 8 of 1999. 4. Wilson Zulu v. Avondale Housing Project Limited (1982) Z. R. 172 (S. C.) 5. Redrilza Limited v. Abuid Nkazi and Other (2011) ZR 394. J2 6. Albert Mwanaumo and Other v. NFC Africa and Another (2011) ZR 30. 7. Galunia Farms Limited v. National Milling Company Limited (2004) ZR 1. 8. Southern Water and Sewerage Co. Limited v. Sandford Mweene 9. SCZ/8/307/2006. Josephine Mwaka Mwambazi v. Food Reserve Aaencu (Appeal No. 128 of2009). 10. Giles Yambayamba v. Attorney-General and National Assembly of Zambia, SCZ Judgment No. 26 of 2015. 11. Attorney-General v. Kakoma (1975) ZR 216. Legislation referred to: 1. Industrial and Labour Relations Act, chapter 269 of the Laws of Zambia. This appeal challenges the judgment of the Industrial Relations Court given on the 6th of December, 2012, dismissing the appellant’s complaint for want of merit. It would appear from the record that the two appellants had their fortunes and their fate bound together. They were both employed on the 14th of December, 2007 by the respondent in its Editorial/Production Department. They were each confirmed in their position on the 1st of March, 2008. They received the same amount in salary, and worked under the same terms and conditions of employment. As it turned out, the two appellants also shared housing accommodation. The common terms of their conditions of service contained a provision under clause 4 that either party could terminate the employment at J3 any time by serving not less than thirty (30) days written notice on the other, to expire on any day of the month. On the 29th of August, 2011, the 1st appellant’s contract of employment was terminated by the respondent who invoked clause 4 of the terms and conditions of employment. No reason was assigned for the termination which was done immediately by payment in lieu of notice. In a similar fashion, the 2nd appellant’s contract of employment was terminated two days later, on the 31st of August, 2011. Disenchanted by this development, the appellants complained before the Industrial Relations Court where they sought compensation or damages for unfair termination of their contracts of employment, interest and costs. They urged the court to peer behind the termination provision and find the real reason for the termination of their employment contracts, which they alleged was a witch-hunt by the respondent directed at removing from the respondent’s employ, all employees who were suspected not to be sympathetic to the Patriotic Front Party and who may have been giving sensitive information about the respondent to outsiders, or non-employees of the respondent. J4 In its judgment, now subject of the present appeal, the Industrial Relations Court dismissed the claims. While acknowledging that in its quest to do substantial justice, it has the power to look behind a termination provision to discover the real motivation for a termination, the court held that on the facts and the evidence before it, the respondent appropriately invoked the termination clause. According to the court, no injustice was apparent in the manner the termination was made. In the view of the lower court, the appellants had not given sufficient detail to move it to pierce the veil. Dissatisfied with that judgment, the appellants launched the present appeal and formulated five grounds as follows: “1. The learned trial judge misdirected himself when he refused to delve behind into the reasons giving rise to termination of the appellants’ contracts of employment to redress the injustice. 2. The learned trial judge misdirected himself when he failed to appreciate that though the termination of the appellants’ contract of employment was purportedly on the basis of the “termination notice clause” it was motivated by malice. 3. The learned trial judge erred in both law and fact when it attached no weight to the appellants’ evidence which evidence is credible and unshaken that demonstrated that J5 the termination of the appellants’ contracts of employment was related to their conduct and performance. 4. The learned trial judge fell into error in both law and fact when he believed the evidence of the respondent’s sole witness whose evidence was inconsistent, shaken and not credible. 5. The learned trial judge misdirected himself when he ignored and/or disregarded the evidence of the respondent’s sole witness who admitted that the termination of the appellants’ contracts of employment was on account of their conduct and work performance.” In support of their respective positions, the parties’ learned counsel filed heads of argument. It is upon these heads of arguments that the learned counsel for the parties placed reliance. They each supplemented them with brief oral submissions. The appellants argued grounds one and two together and grounds three, four and five compositely. Under grounds one and two, Mr. Chitundu, learned counsel for the appellants, submitted that it was apparent that the basis for the termination of the 1st appellants’ employment was not the notice clause in the contract of employment, but an incident that occurred on the 29th of August, 2011 when he was seen in the company of a J6 purported enemy of the respondent, namely, Augustine Mukoka at a social place called KCC in Kabwata. The latter reportedly left the respondent’s employment in very rancorous circumstances and has since allegedly taken the respondent to court. It was further submitted that the 2nd appellant’s employment was terminated hardly two days after the termination of the 1st appellant’s employment, and that upon handing him his letter of termination, the 2nd appellant was also given the 1st appellants pay slip. From these facts, it was argued that the 2nd appellants’ employment was terminated on account of his sharing accommodation with the 1st appellant. It was Mr. Chitundu’s further submission that the evidence by the respondent’s sole witness, Joan Chirwa Ngoma, was that the appellants’ employment contracts were terminated for reasons related to their performance or conduct, and management of their duties, which the respondent was unhappy with. It was the appellants’ further argument that where the respondent, in the face of such ‘real’ reasons to terminate employment, opted to use the termination notice clause, the court below had jurisdiction to delve behind the termination J7 notice to find the actual reasons for the termination, in order to do substantial justice and address the injustice caused to the appellants who were pensionable employees. The appellants’ learned counsel called in aid of this submission, the cases of Zambia Consolidated Copper Mines Limited v. James Matale* 1> and Barclays Bank Zambia Limited v. Mundo Chola and Ignatius Mubanga*2*. We were called upon to hold that this was a proper case in which the lower court should have exercised its powers to lift the veil and peer into the real reasons for the termination. It is on this basis that we were urged to uphold grounds one and two of the appeal. As we have already stated, the appellants learned counsel argued grounds three, four and five globally. As will be apparent these grounds are integrally linked to the first two grounds. Here, the appellants alleged that the respondent hid behind the notice clause to terminate the contract of employment despite stating that the termination was related to their conduct or performance. According to the appellants’ learned counsel, the appellants’ evidence regarding the real reasons for the termination of the contract was unshaken, whilst that of the respondents’ sole witness, was not credible and, had revealed J8 inconsistencies when challenged under cross examination. It was further submitted that the court did not attach any weight to the evidence of the appellants despite it being elaborate, credible and truthful, but instead opted to accept the evidence of the respondent. Relying on the cases of A. M.l Zambia Limited v. Peggy Chibuy e*3) and Wilson Zulu v. Avondale Housing Project Limited*4*, it was submitted that the court misdirected itself in this regard. We were urged to set aside that portion of the judgment. Mrs. Kateka, learned counsel for the respondent, spiritedly rebutted the appellants’ counsel’s argument in the order in which they were made. In response to grounds one and two, the learned counsel argued that delving into the reasons for the termination as argued on behalf of the appellants, is in the discretion of the court and that such discretion should be exercised judiciously and in specific cases where it is apparent that the employer invoked the termination clause out of malice. We were referred to the case of Redrilza Limited v. Abuid Nkazi and Other*5), as authority for that submission. It was the respondent’s contention that the J9 appellant did not adduce any evidence to satisfy the lower court that the termination was out of malice, other than alleging, in the case of the 1st appellant, that the termination was because he was found in the company of a person who had a sour relationship with the respondent, and in case of the 2 nd appellant, that it was by virtue of his being the 1st appellant’s housemate. Mrs. Kateka contended that although the appellants made such allegations, they did not adduce any evidence, regarding that bitter relationship, which would have shown malice on the part of the respondent, thus warranting the piercing of the veil by the court. Mr. Nchito, SC, bolstered this argument by submitting that there must be a basis upon which the court should be moved to pierce the veil. He added that the party seeking to have the veil pierced should prove malice, at least on a prima facie basis. Mrs. Kateka further argued that the clause which the respondent invoked, explicitly stated that either party could terminate the employment contract provided thirty (30) days written notice is served on the other party and that none of the parties were obliged to give reasons. The learned counsel submitted that in the case of Albert Mwanaumo and Others v. NFC J10 Africa and Another<6i this court affirmed that a master can terminate a contract of employment at any time, even with immediate effect and for no reason. On that basis, it was submitted that the lower court was on firm grounds in refusing to delve into the merits of the termination. In response to ground three, four and five, counsel for the respondent argued that the case of Galunia Farms Limited v. National Milling Company Limited<7>, established the principle that a claimant should prove their case and shall not succeed based on the failure of the defendant’s case. It was submitted that, although the appellants alleged that the respondent witnesses’ evidence was inconsistent , shaken and not credible, the onus to prove the claim against the respondent was on the appellants, whose evidence was allegedly unshaken and credible but did not prove their case. Counsel for the respondent referred us to the case of Wilson Masauso Zulu v. Avondale Housing Project Limited,4) for the submission that this court, as an appellate court, will not interfere with the lower court’s findings of fact unless such findings were perverse or made in the absence of relevant evidence or upon a misapprehension of facts. In the present case, according to the learned counsel, the finding that the Jll appellants’ employment was properly terminated was a finding of fact and was neither perverse, nor made in the absence of relevant evidence. We were thus urged not to interfere with that finding. We have carefully considered the evidence on record as well as the competing arguments of the learned counsel for the parties. As regards grounds one and two, the question we have to determine is whether the lower court was, on the facts before it, obliged to look behind the termination clause and find another reason for the termination of the appellants’ employment. Section 85(5) of the Industrial and Labour Relations Act, chapter 269 of the Laws of Zambia enjoins the Industrial Relations Court to do substantial justice between the parties before it without being unduly hamstrung by procedural rules. We have always understood this to mean that substantial justice does not always reside in the rules of court, in forms and formalities, nor is it a perfect bedfellow of technicalities. In Zambia Consolidated Copper Mines v. James Matale* 1> which was referred to by the learned counsel for the appellants, we held J12 that there is nothing in the Industrial and Labour Relations Act to stop the court from delving into or behind the termination notice if to do so would enable the court to redress any injustices. Similar sentiments were strongly carried in Southern Water and Sewerage Co. Limited v. Sandford Mweenel8) where we stated that: “The fact that there is a notice clause for termination of a contract without giving reasons does not deter the Industrial Relations Court from looking behind the termination to ascertain if some injustice was done by the employer when invoking the termination clause. This is the discretion that the Industrial Relations Court invoked in this case and the court was in this respect on firm ground using this discretion.” The same point was made in Josephine Mwaka Mwambazi v. Food Reserve Agency(9i when we observed that: “Where evidence is led that brings to the fore ulterior motives behind the termination of employment, the court can go behind the notice to ascertain the real reason behind the termination.” As Mrs. Kateka has submitted, in Redrilza Limited v. Abuid Nkazi and others!5), we cautioned that although the Industrial Relations Court is clothed with the discretion to pierce the veil in appropriate cases, that discretion must be exercised judiciously J13 and in specific cases where it is apparent that the employer is invoking the termination clause out of malice. Mr. Chitundu’s argument before us is that there was evidence that the real reason for the respondent’s termination of the 1st appellant’s employment was that he had met with Augustine Mukoka, who had a strained relationship with the respondent, and that the 2nd appellant was victimized because he shared residential accommodation with the 1st appellant and was perceived to be unsympathetic to the Patriotic Front, and was possibly perceived as being a conveyor of sensitive information to outsiders. A perusal of the appellant’s affidavit verifying the complaint does not reveal any details of the malicious motive attributed to the respondent in terminating the appellant’s employment. The record of proceedings in the court below, shows that the two appellants gave evidence on their own behalf and called no other witnesses. The 1st appellant merely alleged that the reason for the termination of his employment was because he was seen with Augustine Mukoka, and secondly that he was suspected to have been circulating anti Post Newspaper J14 information to outsiders. The 2nd appellant, for his part, alleged that he was fired because he shared accommodation with the 1st appellant who was suspected of leaking information to outsiders. Apart from the appellants’ own ipse dixit, there was not a modicum of evidence to show that Augustine Mukoka had a strained relationship with the respondent, or that he had taken the respondent to court, or that he was considered by the respondent as bad company for its employees, or indeed that the 1st appellant was suspected of disseminating information to outsiders. At the hearing of the appeal, we sought clarification from the learned counsel for the appellants as to whether, from the record of appeal, there was any evidence of malice on the part of the respondent upon which the court below could be moved to pierce the veil. Mr. Chitundu, in response, referred us to pages 122 and 123 of the record where the evidence of the 1st appellant in the lower court is recorded. There, there is nothing to show that the respondent was embittered by the meeting between the 1st appellant and Augustine Mukoka. J15 In our recent judgment in the case of Giles Yambayamba v. Attorney-General and National Assembly of Zambia* 10), we guided that two considerations are cardinal when the Industrial Relations Court has to decide whether or not to peer behind a termination provision to discover, as it were, the real reason for the termination. The first of these is that there should be sufficient evidence laid before the court to suggest that the termination of the employee’s employment was motivated by factors quite apart from the employer’s power and right to terminate as donated by the contract of employment. The second is that the court exercises discretion when it pierces the veil, and this discretion should be exercised judicially and judiciously. As regards the first consideration of laying sufficient evidence before the court to enable it form the decision whether or not to pierce the veil, the issue is largely factual. In this regard, we agree with the submission of Mr. Nchito, SC, that a party seeking to have the veil pierced should demonstrate legitimate cause by adduction of evidence at least on a prima facie case that the termination was motivated by malice. Once such evidence is laid before the court, it remains for the court to assess and evaluate it. J16 In the present case, having heard the witnesses, the trial court was not persuaded that the appellants had proved, on a balance of probabilities, that the termination of their employment was actuated by malice or that the 1st appellant’s association with Augustine Mukoka caused angst or disapprobation on the part of the respondent or that there was demonstratable suspicion on the part of the respondent that it was the 1st appellant that was giving information about the respondent to outsiders. The court below carefully, in our view, addressed its mind to the evidence before it and whether or not it was appropriate to pierce the veil. At J7 the court stated as follows: “In order for this court to pierce the veil it must be apparent that the employer invoked the termination clause out of malice. It is not apparent in this case that the respondent invoked the termination clause out of malice. We say so because of the following reasons: 1. The fact that the first complainant was found in the company of Augustine Mukoka with whom the respondent allegedly had sour relationship, needs to be qualified in order for the court to pierce the veil. It must be proved clearly that the respondent was not pleased to see the complainant in a certain relationship or association with/of a certain person. J17 2. The issue that the second complainant had his employment terminated by the respondent because he was sharing accommodation with the first complainant prior to the termination of the first complainant’s employment is not just a mere assumption but also too remote.” We agree with the trial court that not sufficient evidence was placed before it to support the appellants’ claim of malice on the part of the respondent in invoking the termination clause. The court’s exercise of its discretion in this respect cannot be faulted. Ground one and two are bound to fail. The gist of Mr. Chitundu’s submissions in regard to grounds three, four and five reveal that the appellants’ contest of the trial court’s judgment is evidentiary. The trial court is faulted in the manner in which is treated the evidence before it; that the court attached no weight to the appellants’ evidence, and believed the respondent’s sole witness despite her evidence being incredible and inconsistent. More importantly, the learned counsel argued that the sole witness of the respondent did testify that the appellants’ contracts of employment were terminated on account of their conduct and work performance. In the case of Attorney-General v. Kakoma*11!, we guided that: J18 “a court is entitled to make findings of fact where the parties advance directly conflicting stories, and the court must make those findings on the evidence before it having seen and heard witnesses giving that evidence.” The point we make is that ascription of probative value to evidence of witnesses is preeminently the business of the trial court which saw and heard the witness. It is not in the province of this court, or an appellate court, to interfere with findings of fact made by a trial court on the basis of evidence adduced before that court, unless that finding of fact is unsupported by evidence or is made on a view of fact which cannot reasonably be entertained. This position has been repeatedly asserted by this court in numerous authorities including that of Wilson Masauso Zulu v. Avondale Housing Project!4) which was cited by the learned counsel for both parties. Given what we have already stated in regard to grounds one and two, we are of the firm view that grounds three, four and five are destitute of merit. We agree with the learned counsel for the respondent that the appellants lamentably failed to prove their case on the balance of probabilities. The fact that the respondents’ defence in the lower court may not have been given to a level of perfection acceptable to the appellants, and for that J19 matter to the court, does not of itself, entitle the plaintiff in that court automatically to a favourable judgment. We accept that the case of Galaunia Farms Limited v. National Milling Company Limited*7* cited by the respondents’ learned counsel is good authority for the proposition that it beholves a claimant to prove their case to the requisite standard. Success of the claimant’s case cannot solely depend on the failure of the respondent’s case. In that case we stated as follows: “An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so, the mere failure of the opponent’s defence does not entitle him to judgment. I would not accept a proposition that even if a plaintiffs case has collapsed of its own inanition or some reason or other, judgment should nonetheless be given to him on the ground that a defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need a defence.” Before we conclude, we wish to point out what appears to be a contradiction on the part of the lower court in its judgment. At page J6, lines 24-26, the court stated as follows: “We have accordingly looked behind the termination clause in this case to ascertain if some injustice was done by the respondent when invoking the termination clause.” J20 At page J7, from line 10, on the other hand, the court stated that: “In order for this court to pierce the veil it must be apparent that the employer invoked the termination clause out of malice. It is not apparent in this case that the respondent invoked the termination clause out of malice.” These statements by the High Court appear to offer conflicting positions as to whether or not the court pierced the veil. In the first of those statements, a clear intimation is made that the court in fact peered behind the veil but found no injustice. In the later statement, however, the court states that it did not pierce the veil because malice was not apparent. All we can say is that, in the interest of clarity of court decisions, trial courts should guard against what is in many cases the unintend failure to be unequivocal in their holdings. This manifests in the tendency of approbating and reprobating the same issue in the same judgment. Our observation does not, however, affect the overall thrust of our judgment which is that there was insufficient evidence laid before the court for it, in the first place, to pierce the veil, or J21 it if did pierce the veil, to confirm the appellant’s claims of malice. We are therefore, perfectly satisfied that this appeal is destitute of merit and it is dismissed accordingly. We make no order as to costs. H. CHIBOMBA SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE M. MALILA, $C SUPREME COURT JUDGE