Newston Suilanda and Ors v Foodcorp Products Ltd (SCZ 9 of 2002) [2002] ZMSC 103 (24 April 2002)

(56) IN THE SUPREME COURT FOR ZAMBIA SCZ JUDGMENT NO. 9 OF 2002 HOLDEN AT NDOLA AND LUSAKA APPEAL NO. 78a OF 2001 (Civil Jurisdiction) BETWEEN: NEWSTON SIULANDA AND 36 OTHERS Appellant AND FOODCORP PRODUCTS LIMITED Respondent CORAM: Ngulube, CJ, Sakala, JS and Mambilimba, AG. JS On 5th December, 2001 and 24th April, 2002 For appellants - In Person For respondents - NIL JUDGMENT Ngulube, CJ, delivered the judgment of the Court. Cases referred to: 1. Kabwe —v- BP (Zambia) Limited (1995-97) ZR 218. 2. Marriot -v- Oxford and District Co-operative Society Limited (No. 2) (1970) 1 QB 186. J2 (57) 3. 4. Salomon -v- Salomon (1897) AC 22. ZCCM and Ndola Lime Company Limited -v- Sikanyika and Others SCZ Judgment No. 24 of 2002. On 5th December, 2001, we went ahead to hear this appeal despite the absence of the respondent when we were satisfied with the proof of service offered by Mr. Siulanda. Even before reciting what the appeal was about, we must express surprise that the thirty seven workers who brought a joint suit considered that they had a common claim, and a common position in the case so as to maintain a uniform argument or submission. As the trial Court observed, some were still in employment; some had retired as and when they reached retiring age; some had resigned whilst others had been dismissed on disciplinary grounds. Yet they all wanted a declaration that there had been a change of employer without their consent when all the shares in ZAMHORT PRODUCTS (ZAMBIA) LIMITED were bought by FOODCORP PRODUCTS LIMITED or when the name was changed from the former to the latter. Some of the arguments below and repeated here were that the workers asked for a finding that there had been disadvantageous alterations to the former ZIMCO Conditions without their concurrence such that the changes should have been held to be a breach by the employer entitling the workers to treat the contract as repudiated. The (58) cases of KABWE -v- BP (ZAMBIA) LIMITED (1) and MARRIOT -v- OXFORD AND DISTRICT CO-OPERATIVE SOCIETY LIMITED (2) were called in aid. Yet those cases can only arise if there has been a termination of employment connected to the alleged breach. The cases are inapplicable in the case of those who choose to continue working and are still working, opting to accept or acquiesce in the changes. They are also of little assistance to those whose separation was on disciplinary grounds. We repeat what we have said in a number of cases in the past: Disadvantageous and unilateral alterations to a basic condition entitles the aggrieved employee to treat the same as a breach and repudiation of the employment contract by the employer, thereby entitling the employee to the appropriate separation package. In the case at hand, the mixture of plaintiffs who are differently circumstanced precludes the making of any pronouncements based on the principle in cases like the KABWE case. Another argument advanced sought to assert that the change of ownership of the shares brought about a new employer. The Court below quite correctly directed itself on the law which has long recognized the separateness of the corporate entity from those behind it, owning it and directing its affairs. The celebrated case of J4 (59) SALOMON -v- SALOMON (3) on the point is still good law. Similarly, our holding in ZCCM and NDOLA LIME COMPANY LIMITED -v- SIKANYIKA AND OTHERS (4) that the change of ownership of shares cannot result in the corporate entity becoming a new employer is still valid and applies with equal force to the case at hand. Indeed, the learned Judge cited these same authorities. The representative of the appellants in person submitted in writing that there were some who were retired on new meagre packages who ought to have been held to be entitled to retire on the better ZIMCO packages. The positions of the plaintiffs here were so varied that again, it is impossible to say there were any who were shortchanged in the manner alleged. The joinder of varied plaintiffs in this action was inappropriate if infact there are any who can establish that they were deprived of accrued rights. The plaintiffs who did testify did not cover such ground. Unfortunately, this is one case in which the separate and different cases being canvassed should have been prosecuted severally and separately. The representative submitted that the Court should in the interests of justice allow claims which were not covered by the pleadings and by the scope of the case attempted to be made out below. It was said we had inherent jurisdiction to resolve substantial J5 (60) questions of Jaw and fact even if not canvassed below. On the contrary, it cannot be for the advancement of justice if a case not pleaded, not advanced and not canvassed in the Court below - and on which no evidence was led on either side - can be sprung in this Court for the first time. In truth, the appeal was without merit. We dismiss it but make no order as to costs. M. M. S. W. Ngulub^, CHIEF JUSTICE. E. L. Sakala, SUPREME COURT JUDGE. I. M. C. Mambilima, SUPREME COURT JUDGE.