Zambia National Commercial Bank Plc v Mary France Kalumbilo and 116 Ors [2019] ZMCA 383 (21 March 2019)

IN THE COURT OF APPEAL FOR ZAMBIA (cid:9) HOLDEN AT LUSAKA Appeal/130/2017 (Civil Jurisdiction) BETWEEN: ZAMBIA NATIONAL COMMERCIAL BANK PLC APPELLANT AND MARY FRANCE KALUMBILO & 116 OTHERS (cid:9) RESPONDENT Coram: Makungu, Kondolo SC and Majula JJA. On 28th March, 2018 and 21st March, 2019 For the Appellant: (cid:9) Mr. E. Silwamba SC of Messrs. Eric Silwamba, Jalasi & Linyama Legal Practitioners. For the Respondents: (cid:9) Mr. M Mando of Messrs. M. L. Mukande & Co. JUDGMENT MAJULA, JA, delivered the Judgment of the Court. Cases referred to: 1. Zambia National commercial Bank Plc vs. Geoffrey Muyamwa & 88 Others selected Judgment No. 37 of 2017. 2. Pamodzi Hotel vs. Godwin Mbewe (198 7) ZR 867, 3. Nkhata and four others vs. The Attorney General (1966) ZR 124. 4. Wilson Masauso Zulu vs. Avondale Housing Project (1982) ZR. 172 5. Paul Kasengele and Others vs. Zambia National commercial Bank [2000] ZR 72. 6. Leonard Mendai vs. ZAMTEL (200 1/HP/246) (unreported). 7. Development Bank of Zambia vs. Mambo (1995 - 1997) ZR 89. 8. Gerald Musonda Mumba vs. Maamba Collieries Limited (1985) ZR. 17. 9. The Attorney General vs. Marcus Kampumba Achiume [1983] ZR 1. J2 10. Barclays Bank Zambia Plc vs. Zambia Union of Financial Institution and Allied Workers (2007) ZR 106. 11. YB and F Transport vs. Supersonic Motors Limited SCZ Judgement No. 3 of 2000. 12. Costa Tembo vs Hybrid Farm Limited (SCZJudgement No. 13 of 2003) 13. Georgina Mutate (T/A GM Manufacturers Limited) vs. Zambia National Building Society (2002) ZR. 19. Legislation referred to 1. High Court Rules Cap 27 of the Laws of Zambia 2. Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia Other Works referred to 1. Rules of the Supreme Court (White Book) 1999 Ed, Vol 1. 2. Haisbury's Laws of England, 3rd Edition, Volume 22. This appeal was launched against the decision of the High Court delivered on 1st March, 2017. In that judgment, the learned trial judge found that the Appellant misdirected itself in not taking into account, when computing the Respondents' terminal benefits, the issue of incorporating their housing allowance into the basic salary. In effect, the learned trial judge concluded that the Respondents were entitled to a retirement package to be calculated by incorporating allowances into basic salary. The learned trial judge, however, dismissed the Respondents' claim for 25% salary increment, gratuity and payment of three (3) months' salary in lieu of notice and made no order as to costs. The brief background to this dispute is that the Respondents were employed by the Appellant on diverse dates. During their time of J3 employment, the Appellant was a subsidiary of ZIMCO and wholly owned by the government of Zambia, with the Minister of Finance being the sole shareholder. The Respondents were retired on various dates but between January, 1996 and September, 1996. On 28th March, 1995, the then Minister of Finance, the late Honourable Ronald D. S. Penza MP, in a letter that is referred to in this judgment as the 'Penza Letter', issued a directive that allowances be merged or incorporated with basic salary and the decision be implemented with immediate effect. However, upon their separation under an early retirement scheme during the period January, 1996 and September, 1996, the Respondents were paid their retirement benefits not in accordance with the 'Penza Letter' conditions. As a result, the Respondents moved the High Court claiming that the 'Penza Letter' conditions applied to them and that they were underpaid on account of the exclusion of the allowances. On its part, the Appellant argued in the lower Court that the 'Penza Letter' conditions did not apply to the Respondents. As we have already mentioned earlier in this judgment, the trial judge adjudged that the Respondents had a meritorious case and accordingly found in their favor. Dissatisfied with the Judgment, the Appellant has appealed to this Court advancing the following five grounds: 1. The learned trial Judge misdirected himself in law and fact when he found or held that the incorporation of housing allowance into the basic salary was with effect from 25th March, 1995 following J4 the letter from the then Minister of Finance to all ZIMCO subsidiaries. 2. The learned trial Judge misdirected himself in law and fact when he disregarded the terms of the Collective Agreement between the Zambia Bankers (Employers) Association and the Zambia Union of Financial Institutions and Allied Workers Union signed on 23rd May, 1997 which was the valid and binding legal document between the parties wherein it was agreed under Clause 15 that housing allowance was to be incorporated into the basic salary with effect from 31st August, 1996. 3. The learned trial Judge misdirected himself in law and fact when he found or held that the housing allowance be incorporated into the basic salary without ordering that the amounts be assessed. 4. The learned trial Judge erred in law and fact when he failed to evaluate the credibility, demeanor and veracity of the parties' witnesses and consequently made perverse findings offact. 5. The learned trial Judge erred in law and fact when he failed to adjudicate on all matters in controversy. The Respondents were equally dissatisfied with the judgment of the Court below and launched a cross-appeal advancing one ground of appeal that: 1. The learned trial Judge erred in law and fact when he made no order as to costs. is Both parties filed detailed written heads of argument on which they relied entirely at the hearing of the appeal and the cross-appeal. We have carefully considered these arguments together with the record of appeal. We propose to deal with the appeal first and thereafter the cross-appeal in the order the parties have presented and argued the grounds of appeal and cross-appeal. In the Appellant's heads of argument, State Counsel Mr. Silwamba argued grounds 1, 2, 4 and 5 together as, according to him these grounds are intertwined. A careful consideration of grounds 1, 2, 4 and 5 reveals that the Appellant is aggrieved by the following facts: that the learned trial judge referred to the 'Penza Letter' dated 25th March, 1995; that the trial judge disregarded the terms of the Collective Agreement dated 23rd May, 1997; that the learned trial judge failed to evaluate the credibility, demeanor and veracity of the parties witnesses which caused it to make perverse findings of fact; and finally that the lower Court failed to adjudicate on all matters in controversy. The arguments by Mr. Silwamba, SC, on behalf of the Appellant, are to the effect that: the learned trial judge erroneously held that the 'Periza Letter' was dated 25th March, 1995 when in fact it was dated 28th March, 1995; that the learned trial Judge relied on the 'Periza Letter' when the ZIMCO conditions of service were inapplicable to the Respondents who were unionized members of staff. On the legal status and applicability of the 'Periza Letter' State Counsel Silwamba drew our attention to the recent case of Zambia National Commercial J6 Bank Plc vs. Geoffrey Muyamwa and 88 others.' We will return to the decision in this case later in this judgment. The Appellant contended that the trial judge should have gone beyond taking note of the evidence as he was duty bound as a 'Trier of Fact' to make a finding of fact. It was argued that the trial judge did not make a finding of fact but proceeded to make a pronouncement on the applicability of the 'Penza Letter' to the Respondents. On the issue of the trial Court disregarding the terms of the collective agreement, the Appellant argued that the trial judge should have examined and then determined the legal status of the Collective Agreement dated 23rd May, 1997. In support of arguments on the legal status of the Collective Agreement, we were referred to the provisions of PART VIII of the Industrial and Labour Relations Act and to a myriad of decided cases including Pamodzi Hotel vs. Godwin Mbe we2 where it was held, among other things, that in line with the Industrial and Labour Relations Act, upon registration, a Collective Agreement shall have statutory effect. The Appellant further argued that the trial judge did not evaluate the credibility, demeanor and veracity of the two witnesses that testified in the Court below. Mr. Silwamba, SC, argued that in the absence of a finding of fact by the trial judge it is difficult to invoke the test in the case of Nkhata and four others vs. The Attorney General3. J7 He further argued that the trial judge had a duty to adjudicate on all matters in controversy including the legal status of the Collective Agreement. In support of this submission, reference was made to a number of authorities including Wilson Masauso Zulu vs. Avondale Housing Project4 where it was stated: "I would express the hope that trial courts will always bear in mind that it is their duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality." State Counsel Silwamba concluded his arguments on grounds 1, 2, 4 and 5 by arguing that the trial judge did not make findings of fact on the real issues in controversy which would have entitled the Respondents to the incorporation of housing allowance into basic pay. In this respect, he identified the following issues: (i) Whether the Respondents were governed by the ZIMCO conditions of service; (ii) Whether the 'Periza Letter' was applicable to the Respondents who were unionized members of staff; and (iii) The legal status of the 'Penza Letter' qua Collective Agreement. On the basis of the above arguments, State Counsel Silwamba argued that grounds 1, 2, 4 and 5 are meritorious and urged us to sustain them. J8 In response to the arguments in support of grounds 1, 2, 4 and 5 of the appeal, learned Counsel for the Respondent, Mr. Mando submitted that the argument that the trial Court was wrong in relying on the 'Penza Letter' because the Respondents were unionized employees is flawed and lacks merit for the following reasons: Firstly, Counsel argued that the distinction must not be made between unionized and management employees because, management cannot negotiate conditions of service against the wishes of the beneficial owner of the company. We were referred to the case of Paul Kasengele and Others vs. Zambia National Commercial Bank5 which considered the "Penza Letter" that: "This letter was never revoked and there can be no doubt from this letter that government and/or the Minister of Finance, the sole shareholder in ZIMCO and its subsidiaries decided that employee's salaries and allowances be merged. The decision was unqualified and embraced all Companies." Mr. Mando also referred us to the case of Leonard Mendai vs. ZAMTEL6 in which the same 'Penza Letter' was in issue and Mr. Justice Hamaundu, then High Court Judge, opined that: "This means, therefore, that the defendant company was a subsidiary of ZIMCO when the government issued the directive. That directive was binding on the company (see Kasengele & Others v. Zambia National Commercial Bank Limited 5. That directive became an additional condition of service which would J9 remain in place until such a time that the defendant would, through its shareholder, change it." Secondly, management employees and unionized employees of the Appellant did not separate under their respective conditions of service but under an early retirement scheme which, according to counsel, provided for a uniform formula for calculation of retirement benefits. (cid:9) Counsel further argued that both unionized and management conditions of service did not provide for incorporation of allowances but that allowances were paid on the basis of the 'Penza Letter'. That the Respondent's claim for incorporation of allowances into basic salary is not based on the Collective Agreement but on the shareholder, directive as contained in the 'Penza Letter'. The retirement packages the Respondents now seek are not contained in the Collective Agreement but in the early retirement scheme which was common to both management and unionized employees. We were referred to the Muyamwa1 case where the Supreme Court at page J52 said: "...we feel compelled to comment on the rationale for the "Penza Letter". The position we have taken is that when considering the "Penza Letter" one must not lose sight of the fact that it was issued at a time when a number of employees in Zambia were being laid off as a consequence of the privatization exercise. In this regard, it was intended as a tool to cushion the impact of the layoffs and retrenchment on the employees and not as a tool to be used later by those employees who had consensually remained in J10 employment under new conditions of service, to bargain for better separation packages." Based on this authority, Mr. Mando argued that there is, therefore, no plausible rationale for the Appellant's attempt to exclude the Respondents from being covered by the 'Penza Letter'. According to counsel, the Respondents too were laid off at the same time and under the same early retirement scheme as the Kasengele group and they needed the same cushion. Counsel argued that there is very little to distinguish the Respondents' group from the Kasengele group. On the legal status of the Collective Agreement, Mr. Mando argued that this is a new issue as it was not raised in the Court below. Counsel submitted that the last group of Respondents left employment in August, 1996 and the Collective Agreement was only signed on 23rd May, 1997 and backdated to 31st August, 1995. In this respect, the Collective Agreement dated 23rd May, 1997 does not apply to the Respondents because at the time of its being signed, the Respondents were already out of employment. To buttress this position Counsel referred us to the case of Development Bank of Zambia vs. Mamb07 which decided, among other things, that: "When the original notice was given there was in existence a contract to pay the respondent at his old rate of pay. When he received the notice on 6th November, 1992, that was the only contract in existence and, as at that date, the only way of calculating what was three months' salary in lieu of notice was to ill apply the only rate that was known to the parties at the time, that is, the old rate. When the payment was made in lieu of notice that was an end of the appellant's liability under that contract. When such money was paid the respondent was not deemed to continue in employment until three months after the original notice. The original employment came to an end, and whatever happened to the other employees who continued in employment could not affect the completed obligations between these parties. The reasons for this are, of course, that there was no consideration and no continuing contract between the parties to this action after the three months salary in lieu of notice, calculated at the only rate known to the parties at the time, had been paid in final settlement of the appellant's obligation under the original contract." Relying on this authority, Mr. Mando submitted that in the present case, there is no legal basis of imposing the 1997 Collective Agreement on the Respondents. Counsel argued that although the Respondents were unionized employees, they were not serving under this Collective Agreement at the time of exit. The Respondents did not retire under a Collective Agreement but rather under an early retirement scheme initiated by the Appellant. To this end, Counsel argued that the 'Penza Letter' does not offend the Collective Agreement dated 23rd May, 1997. As regards the issue touching on evaluation of evidence, Mr. Mando argued that it is not each and every issue that must be adjudicated upon but issues that are in controversy. According to J12 Counsel, the issues the Appellant is raising in the appeal were either not in controversy or were never raised in the lower Court. He argued that failure to evaluate evidence cannot be a ground upon which a judgment may be reversed unless it is shown that had the judge evaluated the evidence in a particular manner, he could have come to a different conclusion. It was submitted that the present case did not require extended analysis of the evidence as proposed by the Appellant because according to Mr. Mando, the issues surrounding the 'Penza Letter' are now so common and well settled that they are mostly questions of law. He further argued that, in the Court below, the present case was well supported with documentary evidence and the parties actually had an agreed bundle of documents such that the case did not bring out any fresh questions of law or fact. Mr. Mando further argued that in any event, the trial judge did not give a wholesale award of the Respondents' claims but he actually dismissed some of the claims. It was submitted that the dismissal by the trial judge of some of the Respondents' claims was based on the analysis of the evidence before him. There is no objective standard of evaluation of evidence but of prime importance is that the judgment resolves the issues in controversy. In Counsel's view, the learned trial Judge adjudicated on matters that were in controversy. In concluding the arguments on behalf of the Respondents, Mr. Mando responded to the three issues identified by the Appellant; J13 (1) Whether the Respondents were governed by the ZIMCO conditions of service; (ii) Whether the 'Penza Letter' was applicable to the Respondents who were unionized members of staff; and (iii) The legal status of the 'Penza Letter' qua Collective Agreement. Firstly, Mr. Mando argued that the question of whether the Respondents were governed by the ZIMCO conditions of service is totally irrelevant and that it was not in issue. Counsel argued that, therefore, there was no need for the trial Court to make a finding of fact. The 'Penza Letter' does not refer to ZIMCO conditions of service but to ZIMCO group of companies. Secondly, Counsel argued that the applicability of the '"Penza Letter' was answered by awarding the Respondents allowances on the basis of the said letter. Counsel urged us to dismiss with costs grounds 1, 2, 4 and 5 for lack of merit. We have carefully considered the judgment of the lower Court and the rival arguments by both parties on grounds 1, 2, 4 and 5. We agree with Mr. Mando that the question of the legal status of the 'Penza Letter' is now an old hat as it has been settled since the 1990s in a line of decided authorities. We are fortified and guided by the cases of Muyamwa,1 Paul Kasenge le, 5 and Leonard Mendai.6 J14 Our view is that the directive issued in the "Penza letter" was binding on all ZIMCO subsidiaries of which the appellant was one. In the Muyamwa1 case the Supreme Court set out the rationale behind the Penza letter when it observed at page J.53 that: "To the extent that we did not consider the 'Penza Letter" in this light in our judgment of 27th February, 2015, when we held that the benefit under the 'Penza Letter' accrues to the Respondents based on the principle of being similarly circumstanced, we misdirected ourselves. The fact that the respondents had consented to the migration from ZIMCO to the ZANACO conditions of service is not in dispute. They in fact conceded that the ZIMCO conditions had been introduced. This can be discerned from the record of the proceedings in the court below. As such we were bound by our earlier decisions, during the hearing from which the judgment of 27th February, 2015 arose and now, of Gerald Musonda Mumba vs. Maamba Collieries Limited and The Council of the University of Zambia vs. University of Zambia and Allied Workers Union. In the former case we held as follows: 'We have seriously considered the above arguments and the finding by the court below. Perusal of the pleadings and the evidence on record has shown that the Appellants were employed under the ZIMCO conditions of service when the Respondent was a subsidiary of ZIMCO. When ZIMCO went into liquidation in 1995, the Respondent put in place its own J15 conditions of service the ZSIC Corporate terms and Conditions of Service. The Appellants continued working under the ZSIC corporate conditions of service until their early retirement. There is no evidence on record showing that the Appellants protested or raised issues concerning the application of those conditions. Therefore, their claim that their severance packages under the ZIMCO conditions which could have entitled them to benefit from the directive of the "Penza Letter"... as has been argued, has no basis. They are, therefore estopped from claiming that they retired under the ZIMCO conditions of service.' Similarly, in the latter case we held as follows: 'The trial judge rightly found that the Zamtel conditions of service are what applied to the Respondents. Further, the Appellant Company was detached from ZIMCO in 1994. The directive was made in 1995. If indeed the directive by the Minister of Finance was meant to apply to the Respondents who served under Zamtel conditions of service, it is our view that the directive would have been implemented and the conditions of service would have been drafted in such a way as to reflect the directive. This was not done. What was done was that the conditions of service stated the exact manner the terminal benefits ought to have been calculated and this was acceptable to the Respondents.' J16 Arising from the above two decisions, the Supreme Court held at page J55 as follows: "The effect of these two decisions in the light of the Respondents' plight is that upon migration to the ZANACO conditions of service, which they did so freely and willingly, they lost the right to the benefit of the "Penza letter" on termination. Their terminal benefits are to be computed in accordance with their conditions of service at the point of exiting which are the ZANACO conditions of service which did not provide for inclusion of allowances in computing terminal benefits. "[Underlining is ours for emphasis only] In light of the preceding authorities, our view is that if an employee freely and willingly migrated to the ZANACO conditions of service, they lost the right to the benefit of the "Penza letter" on termination. Terminal benefits for such employees are to be computed in accordance with their conditions of service at the point of exiting which are the ZANACO conditions of service which did not provide for inclusion of allowances in computing terminal benefits. The opposite is also true that where an employee retired under the early retirement scheme before ZANACO conditions of service were adopted, that is, did not migrate to the ZANACO conditions of service, they have the right to the benefit of the "Penza letter" on termination. Therefore, their terminal benefits are to be computed by taking into account the 'Penza Letter' conditions which provided for inclusion of allowances in computing terminal benefits. J17 As already pointed out in this judgment, the applicability of the 'Periza Letter' does not depend on whether one was a management or unionized employee. The line of authorities we have referred to above have shown that if an employee separated under the early retirement scheme and did not migrate to the new conditions of service introduced by the ZIMCO subsidiary, such as the Appellant, they are entitled to the 'Penza Letter' conditions to cushion the impact of layoffs or retrenchment. We therefore cannot fault the lower Court for finding that the Respondents were entitled to a separation package that was calculated based on the 'Periza Letter' conditions which provided for the incorporation of allowances into basic salary. We take this position because the evidence and the pleadings clearly reveal that the Respondents separated from the Appellant on various dates but between January, 1996 and September, 1996. Furthermore, it is not in dispute that the Appellant adopted its own conditions of service in December, 1996. The Appellant's grievance in ground 1 is that the learned trial Judge misdirected himself in law and fact when he found or held that the incorporation of housing allowance into the basic salary was with effect from 25th March, 1995 following the letter from the then Minister of Finance to all ZIMCO subsidiaries. The argument by the Appellant is that the trial judge erroneously held that the 'Periza Letter' was dated 25th March, 1995. It was argued that it is quite clear that the learned trial judge was referring to the letter dated 28th March, 1995 which the trial judge had earlier on in his judgment reproduced. Mr. Mando did not address this specific issue. J18 Our view is that the issue of the date being stated as 25th March, 1995 instead of 28th March, 1995 cannot be subject matter for appeal as it is clearly an accidental clerical mistake or slip which can be corrected by the court on motion or summons without an appeal pursuant to Order 20 rule 11 of the Rules of the Supreme Court 1965 (White Book) 1999 Edition, Volume 1. The court also has inherent jurisdiction to correct accidental errors or omissions. We therefore find no merit in ground 1 and dismiss it. As regards ground 2 the law is trite that upon registration, a Collective Agreement shall have statutory effect but it shall come into force only after it is gazetted. This was the position in the case of Pamodzi Hotel vs. Godwin Mbewe.3 As regards the argument that the trial judge disregarded the terms of the Collective Agreement dated 23rd May, 1997, we are inclined to agree with Mr. Mando that at the time this Collective Agreement was being signed on 23rd May, 1997, the Respondents had already separated from the Appellant, as such its terms were inapplicable to them. This is in keeping with the principle in the case of Development Bank of Zambia vs. Mambo7 which decided, among other things, that when an employee separates, the original employment comes to an end, and whatever happens to the other employees who continue in employment cannot affect the completed obligations between these parties. Therefore, we cannot fault the trial judge for disregarding the terms of the Collective Agreement dated 23rd May, 1997. J19 We accordingly find no merit in ground 2 and dismiss it. In ground 4, the Appellant is specifically unhappy that the learned trial Judge failed to evaluate the credibility, demeanor and veracity of the parties' witnesses and consequently made perverse findings of fact. First of all, we find that the Appellant did not point out to us the perverse findings made by the trial judge. Specifically, it was submitted that there were several instances during the testimony of PW 1 where the witness remained silent and offered no answers to questions, he was asked by the defence counsel. In the case of The Attorney General vs. Marcus Kampumba Achiume9, the Supreme Court observed at page 5 as follows: "Mr. Malama relies on Watt v. Thomas' and also on Benmax v. Austin Motor Co. Ltd, to the effect that an appellate court which only has the transcript of evidence before it and which does not have the advantage that the trial judge had of seeing and hearing the witnesses should not lightly interfere with the findings of the trial judge based on credibility. These cases are to the effect also that the appellate court should not interfere unless it is satisfied that the trial judge has given reasons which are not satisfactory or because it unmistakably appears from the evidence that the trial judge has not taken proper advantage of his having seen and heard the witnesses. We have had occasion in the past to consider in what circumstances we could and should reverse the findings of a trial J20 judge. For example, in Wilson Masauso Zulu vs. Avondale Housing Project, we had expressed ourselves on this issue in the following terms: "Before this Court can reverse findings of fact made by a trial judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." As we have stated earlier in this judgment, the Appellant did not point out in its arguments the perverse findings in question. We therefore cannot speculate as to what findings were perverse because we only have before us the transcript of evidence and did not have the advantage that the trial judge had of seeing and hearing the two witnesses. We therefore, find no merit in ground 4 and dismiss it. Moving on to ground 5, the appellant is discontented that the lower court failed to adjudicate on all matters in controversy. We agree with Mr. Silwamba, SC, that trial courts have a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. This is the law as set out in Wilson Masauso Zulu vs. Avondale Housing Project4. In the present appeal, the question we pose is: What was in controversy? We agree with the submissions by Mr. Mando that what was in controversy before the trial judge was whether the Respondents J21 were entitled to their claims under the 'Penza Letter'. As clearly pointed out by Mr. Mando the learned trial Judge found for the Respondents on that issue. In our view, the trial judge discharged his function and adjudicated on all the matters that were in controversy. We find no merit in ground 5 and we accordingly dismiss it. Now coming to ground 3, the Appellant has expressed displeasure with the fact that the trial judge did not order assessment of amounts for housing allowance to be incorporated into the basic pay. In support of this ground of appeal, Mr. Silwamba, Sc, placed reliance in the case of Zambia National Commercial Bank Plc vs. Geoffrey Muyamwa & 88 Others'. In the Respondent's heads of argument, Mr. Mando contended that in the court below there was no liquidated amount awarded and therefore the parties were free to agree on the quantum of compensation due and to enter a consent order or alternatively to apply for assessment. We could not agree more with Mr. Mando on this point. Support for this view is to be found in the case referred to us by Mr. Mando, of Barclays Bank Zambia Plc vs. Zambia Union of Financial Institution and Allied Workers", where the court said: "In the absence of an agreement as to the amount due, the proper course that the complainant should have taken was to go to court to have the amount due assessed by the court." In light of the preceding authority, we find ground 3 to be destitute of merit and dismiss it accordingly. J22 Coming to the cross appeal, the principle that costs follow the event has been articulated in numerous authorities such as YB & F Transport Limited vs Supersonic Motors Limited" and Costa Tembo vs. Hybrid Farm Limited.12 What can be gleaned from the foregoing authorities is that costs abide the event, however, the court retains the discretion whether or not to order that the unsuccessful party pays the successful party costs to the suit. The respondent has argued that there was a misdirection by the trial court by ordering that each party bears its own costs on the basis that the former relationship of the parties is an irrelevant consideration in the exercise of discretion to award costs. Counsel has placed reliance on the case of Georgina Mwale (T/A G. M. Manufacturers Limited vs Zambia National Building Society, 13 where the Supreme Court guided as follows: "With regard to the appeal against the deprivation of costs, we agree with Dr. Mulwila that the decision to deprive a successful party of his costs must be exercised judicially, on grounds which are explicable or evident and which disclose something blameworthy in the conduct of the case. No good reasons were advanced below and we allow this part of the appeal also. The plaintiff will have all the costs of the trial in the High Court save for any individual items if any, that may have been ordered to be borne by the plaintiff in any event." J23 We accept that the court does have full power to award and apportion costs. In this case there were no reasons advanced for not granting the successful party costs. We are of the view that there is merit in the cross appeal and award costs. In the net result we dismiss the appeal in its entirety. We award costs to the respondent in the court below and in this court. The same to be taxed in default of agreement. C. K. MAKUNGU COURT OF APPEAL JUDGE M. M. KONDOLO (cid:9) COURT OF APPEAL JUDGE (cid:9) B. M. MAJULA COURT OF APEAL JUDGE