TAZAMA Pipeline Ltd v Phiri (Appeal 136 of 2002) [2003] ZMSC 101 (17 October 2003)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 136 2002 HOLDEN AT NDOLA AND LUSAKA it tt? L>L, 1 W LS1L1X . TAZAMA PIPELINE LIMITED Appellant A1X1J SIMON CHAYAN1 PH1RI Respondent Coram: Sakala, C. J., Chibesakunda and Chitengi JJs 4th June and 17th October 2003 For the appellant: Mrs. I. Kunda of George Kunda and Company For the respondent: Mr. P. Mwale of Peter Mwale and Company JUDGMENT Sakala, C. J., delivered the judgment of the Court. This is an appeal against a Judgment of the High Court entered in favour of the respondent. In the judgment, the Court held that the conditions of service applicable to the respondent’s retirement were those approved with effect from August 1999. The Court declared and ordered that the respondent, having retired from the employment of the appellant, was entitled to retain and purchase the motor vehicle registration No. A AT 733 that had been allocated to him on a personal to holder basis in terms of the appellant management's conditions of service effective from 1st August 1999. The appellant’s counter-claim of being deprived of the use of the motor vehicle because of the injunction earlier granted to the respondent was dismissed. For convenience, we shall refer to the appellant as the defendant and the respondent as the plaintiff, which the parties were before the lower Court. The > I ,->■<-ot fo/'tr n rkfort hv I on orl C' piit-f n/r>rr> rtrninkflnnvnfrl 3'|in piUHUlll ndd UllipiUjUU UJ lilv Uvivnuuiil 1H 1 > O / dd 1 Uluiiv<z 1_> 1IV </1 kJ 1 ill kJlclUC ZMG10. In terms ol the defendant’s conditions ol service tor management, he was allocated a personal io noioer vemcie. According tu me conditions 01 service 01 1996, the plaintiff could only have been eligible to purchase the personal to holder vehicle, if he had completed a minimum of five years in service in the defendant company and had been using the vehicle for a minimum period of two years. Some time in 1998, the plaintiff was allocated the motor vehicle registration No. AAT 733, the vehicle in issue. In 1999, the defendant’s management approved and implemented new conditions of service with effect from 1st August 1999. According to Clause 16 of these new conditions, an employee retiring or being retired from employment was, among others, eligible to buy the personal to holder vehicle if he had completed a minimum of five years of service in the defendant company’s employment and the employee had been using the vehicle as personal to holder. The 1999 conditions of service did not require an employee to use the vehicle for any period before being eligible to buy it. It was common cause that the plaintiff had used his personal to holder vehicle for only one year and two months. On 28th February 2000, the plaintiff was put on early retirement. On 1st March 2000, the plaintiff was requested to surrender his personal to holder vehicle. On the 2nd of March 2000, the plaintiff took out a writ of summons claiming for a declaration that having retired from the employment of the defendant, he was entitled to purchase the motor vehicle registration No. AAT 733 which had been allocated to him as a personal to holder vehicle in terms of the defendant’s management conditions of service effective 1st August 1999. The plaintiff also claimed for an order directing the defendant to sell the said vehicle to him. On the » * J *■ • ■* *-»• * » • ■— v/ J • • • | A 4. 4 ■»- V».»* — k • • — » v_ . . *•»»«■*•.»» lliJUliVLiMil, WUlCU WUO ^IcLULCU Lilv dUlllC UUJ . Un o April zuuu, tne aetenuaiit s Doaru numneu me approved new condition of service of 1999. This was over a month after the plaintiff had been placed on early retirement. The learned trial Judge noted after reviewing the evidence that at the time of the nullification of the 1999 conditions of service, the plaintiff was no longer a member of the Board nor the Management. The learned trial Judge noted that the defence evidence that the 1999 conditions of service were partially implemented did not indicate which parts were implemented. The Court however, held that one of these conditions that must have been implemented must have been the one relating to purchasing of the personal to holder vehicle. The court observed that the nullification of the 1999 conditions of service was made when the members of the Board of Directors were fully aware about the plaintiffs claim being in Court. The Court disapproved the nullification of the conditions of service of 1999 and pointed out that it was done in bad faith to defeat the plaintiffs claim. The Court further observed that under the 1999 conditions of service, introduced by the Managing Director, which show that they were approved, the plaintiff was qualified to purchase the vehicle in issue as the Board’s purported nullification came long after he had retired, particularly that the nullification was not made retrospective. The Court concluded that the conditions of Service applicable to the plaintiff were those of 1999. I ■ The appellant filed a memorandum of appeal containing two grounds. In the written heads ol argument Mrs. Kunda consolidated the two grounds. The •-> r\ 1 < 4 n ♦ o a rr i > •-» a! •-z'* n 4 e • “ J i' C'C.'.' f.1'.".!! I!'.!"'.' (.'IT’J'J !f! (•••' > '* i’>> •>»’< < < > ••!' < f service were applicable to the Respondent and as such the Respondent was ennnea to retain ana purcnase me motor ventcte which was uiiucuieu to • J “ . J < W » K. . . . . . . . V .................. >• • *' - same to him. He further erred when he failed to consider the fact that since there was no approval from the Board in respect of the 1999 conditions, such recommendations by management were null and void. ” The short submission on the consolidated ground was that the Board did not sit to approve the conditions of service. It was argued that the 1999 conditions of service were purportedly approved by only one person, that is the Managing Director, and as such there was no approval by the Board. In response to the arguments, it was submitted that if it is admitted as argued ’ on behalf of the defendant, that the Managing Director approved the new conditions of service, which were implemented in 1999 and only purportedly nullified in 2000, after the retirement of the respondent and the commencement of this action, then the defendant is estoped from nullifying the same. We have addressed our minds to the judgment of the learned trial Court, the evidence in the Court below as well as the written heads of argument by both learned counsel. Whether the conditions were approved by the Board or not, in our view, is not the issue. The issue was whether the conditions approved by the management were implemented. There is ample evidence on record and it was common cause that they were implemented. This is confirmed by the very meeting that purported to nullify the 1999 conditions held on 6lh April 2000. Above all, the plaintiff at the time of his retirement, the conditions that were ruling are those of I 1999. We agree with the observation of the learned trial Judge that the nullification of the 1999 conditions of service, when the plaintiff had already V. O . i 1. w . .. . X- . .. . . . ................... - . . . _ _ , maue in uau idiiu, wun a boiu puipu^c ui ucicamig me uiann. uvc me actions taken by the defendant. In any event, even accepting that the I conditions had been eiiectiveiy nuiiiiieu, me iiuuiiicaiioii couiu nut nave nau a retrospective effect. On the facts not in dispute, the learned trial Judge was on firm ground in holding that under the 1999 conditions of service, the plaintiff was qualified to purchase the motor vehicle even if he had used it for only one year and two months. This is so because the 1999 conditions of service did not prescribe the period for using the motor vehicle before one qualified to buy it. We find that there is no merit in this appeal. It is dismissed with costs to be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE P. Chiter^gi SUPREME COURT JUDGE