Tiger Chicks (T/A Progressive Poultry Ltd) v Tembo Chrisford and Ors (APPEAL NO. 35 OF 2018) [2019] ZMCA 421 (21 August 2019)

• IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NQ 35 OF 2018 BETWEEN: TIGER CHICKS {T/A PROGRESSIVE POULTRY LTD) APPELLANT AND TEMBO CHRISFORD GWEN MUSONDA MEMORY MUSONDA OBBYSOTWA CHILUFYA CHIBENDE ,. - (. UG 2019 ~ 2 ISTRY X()O()nr,l\ 1 ST RESPONDENT 2 ND RES PON DENT I 3 RD RESPONDENT 4TH RESPONDENT 5 TH RESPONDENT CORAM : Chashi, Lengalenga and Siavwapa, JJA On 22nd August, 2018 and 21 st August, 2019. For the Appellant: Ms M. H. Masengu - Messrs Mwenye & Mwitwa Advocates For the Respondents: In person ( Mr. Ch risford Tembo) JUDGMENT LENGALENGA, JA delivered the Judgment of the Court. ... . \ Cases referred to: J1 1. NAWA v STANDARD CHARTERED BANK - SCZ JUDGMENT NQ 1 OF 2011 2. TIME TRUCKING LTD v KIPIMPI - SCZ APPEAL NQ 168 OF 3. SILILO v MEND-A-BATH & ANOR (2017) ZMSC 54 (unreported) 4. ROSEMARY CHIBWE v AUSTIN CHIBWE (2001) ZR 1 5. WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD (1982) ZR 172 6. ANDERSON KAMBELA MAZOKA & 2 ORS v LEVY PATRICK MWANAWASA & 2 ORS (2005) ZR 138 7. ESSAN v ATTORNEY GENERAL - SCZ APPEAL NQ 96 OF 2014: (2016) ZR 22 SC 8. CHARLES NYAMBE & 82 ORS v BUK HAULAGE LTD- SCZ APPEAL NQ 202 OF 2014 (unreported) 9. NDONGO v MULYANGO & ANOR (2011) 1 ZR 187 Legislation referred to: 1. THE EMPLOYMENT ACT, CHAPTER 268 OF THE LAWS OF ZAMBIA. 2. THE MINIMUM WAGES AND CONDITIONS OF SERVICE ACT, CHAPTER 276 OF THE LAWS OF ZAMBIA. 3. THE MINIMUM WAGES AND CONDITIONS OF EMPLOYMENT (GENERAL) ORDER, 2011, STATUTORY INSTRUMENT NQ 2 OF 2011. 4. THE MINIMUM WAGES AND CONDITIONS OF EMPLOYMENT (GENERAL) (AMENDMENT) ORDER, 2012. J2 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of the High Court delivered by Mrs. Justice S. Kaunda Newa on 13th November, 2017. 2.0 BACKGROUND TO THE APPEAL 2.1 The brief background to this appeal is that the Respondents who are former employees of the Appellant herein commenced an action by way of Writ of Summons against the Appellant in the Court below. According to the statement of claim, the Respondents claimed the following reliefs: 1. Payment of KS0 587.60 for housing, lunch and transport allowances; 2. Interest thereon; 3. Costs; 4. Any other relief that the Court deemed fit. 2.2 According to the evidence on record, the Respondents were employed on different dates on fixed term contracts as hatchery and poultry men respectively until they were summarily dismissed on 10th November, 2016 for participating in an illegal strike. J3 2.3 The Respondents' main grievance was that they were not paid their housing, lunch and transport allowances during the period that they were employed by the Appellant. 2.4 The Appellant's response to the Respondents' allegations was that the Respondents were not owed any money by the Appellant as the claimed allowances were grossed or incorporated into their monthly salaries as provided in their contracts of employment. 2.5 DWl, Thomson Duncan Banda, the Appellant's group Public and Administrative Manager who testified on behalf of the Appellant in the Court below, stated that the Respondents' payslips reflected that the said allowances were grossed into the monthly salaries. 3.0 CONSIDERATION 3.1 The learned trial judge considered the eviden~e before her and she found that the issue for determination was whether the allowances claimed by the Respondents were actually incorporated in the basic pay in accordance with the signed contracts of employment. She reasoned that there was nothing wrong with allowances being merged into the basic pay. Having arrived at that conclusion, the issue that emerged for consideration was whether by grossing the J4 allowances into basic pay, an employee receives a salary that is in compliance with provisions of the law. 3.2 The learned trial judge further considered the provisions of the Employment Act, Chapter 268, the Minimum Wages and Conditions of Service Act, Chapter 276, the Minimum Wages and Conditions of Employment (General) Order, 2011, Statutory Instrument NQ 2 of 2011, and the Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2012. After consideration of sections 14 and 15 of the Minimum Wages and Conditions of Employment (General) Order 2011, Statutory Instrument NQ 2 of 2011 which respectively provide for transport and lunch allowances, the learned trial judge found that the said Order was Qot applicable to the Respondents as they had signed contracts of employment that had been attested to by a labour officer, and that for the said contracts to be enforceable, they should not be less favourable than what is provided in the Order. In the Respondents' case, she found that the contracts they signed with the Appellant were not enforceable as they provided for an all inclusive basic pay that was below the minimum wage provided by law. JS 4.0 DECISION BY THE COURT BELOW 4.1 Consequently, the Respondents' claim succeeded on the monetary claims with costs. 4.2 However, in relation to the Respondents' claim that they were unfairly and unlawfully dismissed for no reason, the learned trial judge found that they had not adduced any evidence to establish the wrongful and unlawful termination or loss claimed and she accordingly dismissed those claims. 5.0 APPELLANT'S GROUNDS OF APPEAL 5.1 Dissatisfied with the decision of Mrs. Justice S. Kaunda Newa, the Appellant has appealed to this Court, and advanced the following grounds of appeal. 1. The Court below erred in law and fact when it held that the provisions of the Minimum Wages and Conditions of Employment {General) {Amendment) Order, 2012 apply to the Respondents when the evidence on record shows that none of the Respondents fall within the category of protected employees under the said Order . 2. In the alternative, the court below erred in law and in fact when it relied on the provisions of the Minimum Wages and Conditions of Employment {General) {Amendment) Order 2012 despite holding at page 117 of the Judgment that the said Order does not apply to the Respondents. . J6 3. The Court below erred in law and in fact when it held that the Respondents were paid below the minimum wage provided in the Minimum Wages and Conditions of Employment (General) {Amendment) Order 2012 when in fact the issue was not pleaded or led into evidence by the Respondents. 4. The Court below erred in law and in fact when it held that the Respondents are entitled to be paid transport allowance when there is no evidence on record to show that the Respondents' duty station is beyond a three kilometre radius from the area of residence, to justify the payment of the said allowance. 5.2 Heads of arguments were filed into court on behalf of both the Appellant and the Respondents. 6.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 Grounds one and two were argued together as they are interlinked. In support of ground one, Ms Masengu the Appellant's Counsel submitted that the learned trial judge in her judgment acknowledged that the Respondents were paid their allowances that were merged into their basic pay in accordance with their respective contracts of employment. She drew this Court's attention to her further acknowledgment that there was nothing wrong with the merging of allowances with basic salary. She submitted that the issue that arose was whether by merging the allowances to the basic salary, an J7 employee receives a salary that is in compliance with provisions of the law. 6.2 Ms Masengu submitted that the evidence on record confirms that the Court's finding that the Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2012 is applicable to the Respondents is erroneous. She invited this Court to look at the Respondents' contracts of employment appearing on record. She submitted that it is evident from the said contracts, that the Respondents were employed by the Appellant on separate contracts of employment and in different capacities with specific job titles, namely poultry man and hatchery man. 6.3 Ms Masengu further submitted that despite the abundant evidence on record, the learned trial judge held that the Respondents were general workers as provided for in the Minimum Wages and Conditions of Employment (General) Order. She submitted that it was on that basis that she held that the Respondents were paid below the minimum wage. 6.4 It is the Appellant's contention that in light of the evidence on record, it was erroneous for the learned trial judge to conclude that the J8 Respondents were employed as general workers and that the Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2012 applied to them. Appellant's Counsel submitted that it is abundantly clear that she arrived at a conclusion that was at variance with evidence on record and, therefore, misdirected herself in law and fact. 6.5 She submitted that the Minimum Wages and Conditions of Employment Act, Chapter 276 empowers the Minister under section 3(1) thereto, to prescribe minimum wages, through a statutory instrument, if he or she is of the opinion that no adequate provision exists for the effective regulation of minimum wages and conditions for any group of workers. Ms Masengu further submitted that the Minister has since issued three statutory instruments which apply to three different categories of employees or workers. She named them as (1) the Minimum Wages and Conditions of Employment (General) Order, 2011 (as amended in 2012); (2) the Minimum Wages and Conditions of Employment (Shop Workers) Order, 2011; and (3) the Minimum Wages and Conditions of Employment (Domestic Workers) Order, 2011. J9 6.6 She drew this Court's attention to the fact that there is no statutory instrument issued by the Minister relating to employees such as poultry or hatchery men which the Respondents were employed as. Appellant's Counsel submitted that in terms of its application, the Amendment Order, 2012, in paragraph 2(1) (hereinafter referred to as "the application clause") provides that: . "This Order shall apply to employees as specified in the Schedule but shall not apply to employees (a) of the Government of the Republic of Zambia (b) of a local authority (c) engaged in domestic service in any occupation where - ( d) (i) (ii) wages and conditions of employment are regulated through the process of collective bargaining conducted under the Industrial and Labour Relations Acl; or employee-employer relationship (that) are governed by specific employment contracts attested by a proper officer; and such conditions shall not be less favourable than the provisions of this Order; ( e) (f) in management; in a sector for which the Minister, by statutory instrument, has prescribed the minimum wage." 6. 7 She drew the Court's attention to the definition of an "employee" in paragraph 3 of the General Order, 2011 which states that: "employee" means a protected worker specified in the Schedule." JlO 6.8 She submitted that the said Schedule referred to, provides for a list or categories of protected workers/employees to whom the Amendment Order, 2012 applies and further provides for the minimum wage payable to the said categories of protected employees. She further submitted that in category 1, the Schedule provides that: "1. The minimum wages shall be as follows: {a) category 1 - three thousand six hundred and forty-six kwacha {K3 646.00) per hour or seven hundred thousand kwacha {K700 000.00) per month, for a person engaged as- {i) a general worker, not elsewhere specified; a cleaner; a handy person; or an office orderly." {ii) {iii) {iv) 6.9 Based on the foregoing, Ms Masengu submitted that the term "employees" as defined in the General Order, refers only to protected workers specifically listed in the Schedule to the said Order. She further submitted that a category of employees which is not specifically listed in the Schedule to the Amendment Order, 2012 is Jll not a category of protected employees as envisaged by the Minimum Wages and Conditions of Employment Act. 6.10 She argued that based on the foregoing submissions, it is erroneous to assume that any employee whose job title is not specifically listed under the Amendment Order, 2012 is a general worker. She submitted that in order for the General Order 2011 to be applicable, the employee must be employed in any of the capacities specifically listed in the Schedule to the Amendment Order 2012, failu re to which such employee will not be categorized as a protected employee and therefore, the said Order will not be applicable to such an employee. 6.11 To support her argument, Ms Masengu relied on the case of NAWA v STANDARD CHARTERED BANK1 where the Supreme Court in pronouncing itself on the minimum wage stated that: in "Under section 3(1) of Cap 226(sc), the Minister is authorised to prescribe, by statutory order minimum wages or minimum conditions of employment for "any group of workers," if he is of the opinion that "no adequate provision exists" for their effective regulation. Read its proper context, the group of workers envisaged under the Act are those for whom there is no adequate prov1s1on their wages and regulating conditions of employment. These are the 'protected workers' referred to in section 2 of Cap 276 and they are the ones 'to whom a statutory order made under this Act applies.' This law was meant to protect such Jl2 workers because they are prone to be exploited by their employers. For those who are represented by a trade union, the section 3(1) has categorically provided that " ........ no such order can be made before consulting such trade union." 6.12 She further relied on the case of TIME TRUCKING LTD v KIPIMPI 2 where this Court did not interfere with the finding of the Court below that the Minimum Wages and Conditions of Employment (General) Order, 2011, did not apply to the Respondent who was employed as an auto electrician, which positio~ is not provided for in the said Order. 6.13 She distinguished the present case from the case of SILILO v MEND-A-BATH & ANOR3 in which the Amendment Order, 2012 was found to be applicable to the Appellant who was employed as an accountant. She submitted that in the SILILO case, the employers accepted or consented ( after being advised by the Labour Officer) to categorise the employee as a qualified clerk within the meaning of the Amendment Order, 2012, as there was no prescription for an accountant in the said Order. 6.14 Miss Masengu further submitted that the evidence on record clearly indicates that the Respondents herein were not employed as general J13 workers but as poultry and hatchery men respectively, and that the finding by the Court below that the Respondents were employed as general workers was erroneous. She submitted that by finding that the Respondents were general workers, the Court below was enlarging or extendin~ the categories of employees to be paid a minimum wage under the Amendment Order, 2012 which extension she submitted is untenable at law. 6.15 Appellant's Counsel submitted that the Respondents were unionised employees whose wages and conditions of employment were regulated by the National Union of Plantation and Agriculture and Allied Workers (NUPAAW) whilst the Appellant belongs to the Zambia Farm Employers Association. 6.16 To support her argument that the finding by the trial judge was erroneous, Ms Masengu relied on the cases of ROSEMARY CHIBWE v AUSTIN CHIBWE4 and WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD5 • In the CHIBWE case the Supreme Court held inter alia that: "It is a cardinal principle supported by a plethora of authorities that courts' conclusion ·must be based on facts stated on record." JlS 6.20 She argued that it is clear from the evidence on record that there was no claim by the Respondents that they were paid their lunch, housing and transport allowances below the Minimum Wages and Conditions of Employment (General) Order, 2012. She submitted that the sole issue for determination in the Court below was whether the Respondents herein were paid their allowances in accordance with their respective contracts of employment. 6.21 She further submitted that upon the trial judge's finding that it was legal for the Appellant to incorporate the Respondents' allowances into their basic salary, the learned trial judge misdirected herself by stating further that: is the issue is whether by merging "What the allowances into basic salary, an employee receives a salary that is in compliance with the provisions of the law. By this reference must be had to the Employment Act, Chapter 268 of the Laws of Zambia and the Minimum Wages and Conditions of Employment Service (sic) Act, Chapter 276 of the Laws of Zambia." 6.22 She contended that based on the said misdirection, the learned trial judge held that the Respondents were paid their allowances below the wage stated or prescribed under the Amendment Order, 2012. J16 6.23 Ms Masengu argued that it is clear from the pleadings and the evidence on record that the Respondents did not plead or lead any evidence that they were paid below the minimum wage provided in the Amendment Order, 2012. She submitted that, therefore, the learned trial judge should have restricted herself to the claims which were pleaded and to the issue for determination before the Court below, the same being whether the Respondents herein were paid their allowances in accordance with their respective contracts of employment. 6.24 She buttressed her argument by relying on the case of ANDERSON KAMBELA MAZOKA & 2 ORS v LEVY PATRICK MWANAWASA & 2 ORS6 where the Supreme Court stated that: "The function of pleadings, is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. Once the pleadings have been closed, the parties are bound by their pleadings and the court has to take them as such." 6.25 She further relied on the case of ESSAN v ATTORNEY GENERAL7 in which the Supreme Court reaffirmed the principle that a case is defined by its pleadings and further held that the learned trial judge J17 could not be faulted for having confined himself to the reliefs that were pleaded. Appellant's Counsel prayed · that based on the authority cited and the evidence on record, this Court should reverse the finding of the Court below. 6.26 In ground four, the Appellant faults the holding by the trial judge that the Respondents were entitled to be paid transport allowance when there is no evidence on record to show that the Respondents' duty station was beyond a three kilometres radius from their area of residence, to justify the payment claimed. In support of this ground, Ms Masengu in her arguments, referred this Court to the provisions of section 14 of the Minimum Wages and Conditions of Employment (General) Order, 2011 which provides that: "An employee whose duty station is beyond a three kilometre radius from the area of residence shall be paid a monthly allowance of one hundred and two thousand four hundred kwacha for transport expenses, that unless employee." the employer provides transport for 6.27 In view of the foregoing provision of the law, Appellant's Counsel submitted that the learned trial judge failed to address her mind properly to the facts and evidence on record when she found that the \ , J18 Respondents were entitled to the said transport allowance when there was no evidence on record to support that finding. She prayed that the said finding be reversed and relied on the case of CHARLES NYAMBE & 82 ORS v BUK HAULAGE LTD8 in which the case of NDONGO v MULYANGO & ANOR9 was cited with approval by the Supreme Court. 6.28 In concluding her arguments, Ms Masengu prayed that this Court should uphold the appeal in its entirety and find that the Respondents' claims in the Court below were already settled by the Appellant herein. 7 .0 RESPONDENTS' ARGUMENTS IN OPPOSITION TO THE APPEAL 7.1 In response to grounds one and two, the Respondents submitted that they re-affirm the finding of fact by the Court below that the provision of the Minimum Wages and Conditions of Employment (General ) (Amendment) Order 2012 applies to the Respondents. 7.2 With regard to ground two, the Respondents submitted that the trial judge raised a serious question when she concluded that the issue - was whether by merging the allowances into the basic salary, the J19 Respondents received a salary that is in compliance with the provisions of the law. They submitted that the trial judge, after ascertaining that they were not paid according to the provisions of the Minimum Wages and Conditions of Employment Act, Chapter 276, proceeded to award the Respondents the correct payments and entitlements in line with the provision of the law. 7 .3 The Respondents submitted that the learned trial judge properly applied the law and that she was on firm ground by making the finding of fact that she made. 7.4 With respect to ground three, the Respondents submitted that the Court below was on firm ground when it observed that for the contracts made between the Appellant and Respondents to be enforceable, the wages should not be less favourable than what is provided in the Order. 7 .5 Consequently, the Respondents argued that the contracts of employment they signed with the Appellant were null and void and unenforceable at law and that they did not comply with the provisions of the law, as they had conditions that were far less favourable than what was provided in the Order. J20 7.6 In response to ground four the Respondents argued that the Appellant was applying a double standard by stating on one hand that the Respondents were paid all their emoluments because their respective contracts of employment were inclusive of all allowances. 7.7 They submitted that the Appellant implied that all allowances, namely: housing, lunch and transport were incorporated in their basic pay. On the other hand, the Appellant contradicts itself by arguing that the Respondents did not demonstrate that their duty station was more than a three (3) kilometre radius from their residences to enable them to qualify for transport allowances. They further submitted that the Appellant's argument, therefore, falls away as the duty station is conspicuously isolated from the residences of all the Respondents. They urged us to dismiss this ground for lacking merit. 7 .8 In conclusion, the Respondents prayed that we dismiss the entire appeal and uphold the judgment of the Court below for the reasons stated. J21 8.0 CONSIDERATION OF THE GROUNDS OF APPEAL AND DECISION BY THIS COURT 8.1 We have considered the grounds of appeal, respective arguments by the parties hereto, authorities cited, evidence on record and judgment appealed against. 8.2 The gist of grounds one and two is that the learned trial judge misdirected herself in law and fact when she held that the provisions of the Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2012 apply to the Respondents. The issue that has to be resolved is whether the Respondents, being unionised employees who were working under contracts of employment, fell within the category of protected employees under the Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2012. 8.3 Section 3(1) of the Minimum Wages and Conditions of Employment Act, Chapter 276 provides for the regulation of minimum wages or minimum conditions of employment for any group of workers if the Minister is of the opinion that no adequate provision exists. J22 8.4 From the evidence on record, it is not disputed that the Respondents were employed under approved individual contracts of employment and held different positions, namely, hatchery attendant and poultry man. It is also common cause that they were bona fide members of the National Union of Plantation and Allied Workers (NUPAAW) which negotiated for their conditions of service. 8.5 The Appellant's Counsel, Ms Masengu, referred this Court to section 2(1) of the Minimum Wages and Conditions of Employment (General) Order, 2011 to demonstrate that the said Order was not applicable to the Respondents herein. The said Order in section 2(1)(d) states that it shall not apply to employees whose wages and conditions of employment are regulated through the process of collective bargaining conducted under the Industrial and Labour Relations Act or where employee-employer relationships are governed by specific employment contracts. 8.6 It is common cause that the Minimum Wages and Conditions of Employment (General) (Amendment) Order 2012 amended the General Order 201 1 to increase the amount of wages but maintains the same categories of protected employees in its schedule. J23 8.7 The learned trial judge relied on section 2(1)(d) of the General Amendment Order, 2012 in finding for the Respondents. The relevant part of this provision states that: " ....... where employee-employer relationships are governed by specific employment contracts attested by a proper officer, and such conditions shall not be less favourable than the provisions of this Order." 8.8 According to the evidence on record, even though the learned trial judge found that the Order was not applicable, she nevertheless found in their favour on the basis that the conditions of employment that they had were less favourable than those provided in the General Amendment Order, 2012. 8.9 We are of the considered view that whilst we accept that the Respondents were on specific employment contracts and that they were unionised and had their wages and conditions of service negotiated by the union, what is material is that their conditions were found to be less favourable than those provided by this Order. That being the position, it is irrelevant whether or not the Respondents were included in the category of protected workers named in the Schedule. It is sufficient that the Court below found that they were J24 not adequately provided for in their employment contracts. The JENNIFER NAWA case is instructive in that the Supreme Court acknowledged that the Minimum Wages and Conditions of Employment Act, Chapter 276, section 2 refers to protected workers and to the fact that the law was meant for such workers who are prone to being exploited by their employers. 8.10 Consequently, we find that the learned trial judge was on firm ground in finding in the Respondents' favour by ordering the grossing up of their wages as they were below minimum wage requirements provided by law. 8.11 Based on the foregoing reasoning, we find that grounds one and two are devoid of merit and we, therefore, dismiss them. 8.12 We turn to ground three in which the learned trial judge is faulted for finding that the Respondents were paid below the minimum wage provided in Amendment Order 2012 when the same was not pleaded or led in evidence by the Respondents. 8.13 We had occasion to peruse the record of appeal and to look at the copy of the Statement of Claim exhibited "therein and thereby confirmed the reliefs sought by the Respondents. From the evidence J25 on record, it is not disputed that the allowances claimed were merged into their basic salaries so that their dues were all inclusive. We followed the reasoning of the learned trial judge when she inquired into whether the Respondents received salaries that are in compliance with the provisions of the law by the merging of allowances into basic salary. We are of the considered view that it is the all inclusive basic salary that put her on enquiry and brought the Employment Act and Minimum Wages and Conditions of Service Act into the picture, irrespective of whether the iss1::1e of being paid below the minimum wage was pleaded or not by the Respondents. 8.14 In her judgment, the learned trial judge stated that any contract of employment signed should not be in conflict with the Act or any other laws. In this case, she found that the Respondents' all inclusive basic salaries were below the statutory minimum wage. We noted that the learned trial judge's finding that the Respondents were paid below the minimum wage is supported by law. In the circumstances, we find that she was on firm ground in arriving at the decision that she did. Consequently, we find that this ground is also devoid of merit and we, accordingly, dismiss it. J26 8.15 We turn to the last ground of appeal which challenges the learned trial judge's finding that the Respondents' are entitled to be paid transport allowance in the absence of evidenc~ on record that their duty station was beyond a three kilometre radius from their residences. 8.16 We noted that the Respondents in their arguments challenged the Appellant for contradicting itself on this issue. We agree that there was an element of contradiction in the Appellant's ground of appeal and arguments in support thereof. Like the Respondents, we observed that in one breath the Appellant claimed that the Respondents were paid all their allowances as they were merged with their basic salaries, whilst in another, the Appellant argued that the Respondents had not adduced evidence to show that they lived beyond a three kilometre radius from their duty station, to justify their entitlement to the said transport allowance. 8.17 We are of the considered view that the Appellant's argument is baseless. Therefore, we find that ground four lacks merit and we dismiss it. ', f J27 9.0 CONCLUSION 9.1 All the four grounds of appeal being unsuccessful, the net result is that the appeal fails, and it is accordingly dismissed . 9.2 As costs follow the event, the Appel t to bear costs in this appeal and in the Court below. J. Chashi COURT OF APPEAL JUDGE F. M. Lengalenga COURT OF APPEAL JUDGE M. J. Siavwapa COURT OF APPEAL JUDGE