Zambia Tourism Agency v Charity Chanda Lumpa (Appeal 161/2017) [2019] ZMCA 323 (21 March 2019)

IN THE COURT OF APPEAL FOR ZAMBIA Appeal 161 /20 17 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ZAMBIA TOURISM AGE 2 1 MAK 2019 APPELLANT AND CHARITY CHANDA LUMPA RESPONDENT Coram: Makungu, Kondolo SC and Majula JJA On 28th March, 2018 and 21 st March, 2019 For the Appellant: Mr. M. Ndalameta of Musa Dudhia & Company. For the Respondent: Mr. A. Chileshe of Mambwe Siwila & Lisimba Advocates. JUDGMENT MAJULA JA, delivered the Judgment of the Court Cases referred to: 1. Doctor J. W. Billingsley vs JA Mundi (1982) ZR 11. 2. Musukuma vs Major Baxter C. Chibanda (SCZ Judgment No.33 of 2014/ Appeal No.21 of2010). 3. Board vs Thomas Hedley and Company Limited (1951) 2 ALL ER 431 . 4. Phipps vs Orthodox Unit Trust Limited (1958) 1 QB 314. 5. David Chiyengele vs Scaw Limited (Selected Judgment No. 2 of 2017) J2 Statutes and other Authorities referred to: 1. Zambia Tourism Board Act, No.24 of 2007. 2 . Rules of the Supre me Court White Book (1999) edition. The appellant is a statutory body established under the Zambia Tourism Board Act No.24 of 2007. It is also the former employer of the respondent, Charity Chanda Lumpa who was on 2 nd May, 2003, employed as Managing Director on a three-year contract of employment. On 23rd August, 2007, the appellant notified the r espondent about the non-renewal of the contract of employment. The respondent was thereafter paid her dues. However, she contends that she was under paid. Sh e subsequently commenced proceedings in the High Court claiming among other reliefs, the balance of the terminal benefits plus interest. Before the matter could proceed to trial, the appellant applied for an order for a further and better list of documents and discovery of particular documents pursuant to Order III Rule 2 of the High Court Rules Chapter 27 as read together with Order 24 Rule 7 of the Rules of the Supreme Court (White Book) 1999 edition. The learned court below found that the information being sought by the appellant was irrelevant and negligible in determining the matter before her, in that the claim by th e respondent in the High Court is for the balance of terminal benefits which could be determined without t h e aid of the documents that the appellant was J3 requesting. The learned Judge accordingly dismissed the application. She went further and observed that the appellant may have been prompted to request for a further and better list of documents by virtue of clause 3 .7 of the contract of employment which obliged the appellant to continue paying the respondent her monthly dues until full payment of her terminal benefits. The Judge found that from the provisions of the said contract this would be in conflict with the contra proferentem doctrine. Dissatisfied with the said Ruling, the appellant has now appealed to this court advancing three grounds of appeal couched as follows: "1. The court below erred in law and in fact by deciding on matters that were not the subject of the particular application before it, and in the process determining the main matter. 2. The court below erred in law and infact when it found that the Respondent's earnings since leaving the Appellant's employment are not relevant to the case before the lower court. 3. The court below erred in law and in fact when it held that the contra proferentem doctrine was applicable to the present case." In support of ground one, we were referred to the learn ed authors of Halsbury's Laws of England 4 th Edition at paragraph 326 for the proposition that the function of an interlocutory application is to enable the court to grant such interim relief or J4 remedy as may be just and convenient. Counsel contended that in determining such a n application however, the court should not make any comment or decision that can lead to a final determination of the substantive issues. Further reference was made to the case of Doctor JW Billingsley vs JA Mundi1 and the case of Musukuma vs Major Baxter C. Chibanda. 2 In both cases the Supreme Court disapproved the practice of tria l courts delving into the merits of the whole case when faced with interlocutory applications. Counsel further drew our attention to the portion of the Ruling which is at page 2 4 of the Record of Appeal from the court below which he contends should not have been the approach. The said portion of the Ruling reads as follows : "They are the ones who drafted the document to which the plaintiff and themselves appended their signatures. The d efendants cannot now renege (sic) on the stipulations and conditions under the contract of employment by requesting for further and better list of discovery of documents to re medy the mishap. The doctrine of contra-proferentem (sic) now works against them . " Mr. N dalameta argued that this finding by the lower court is prejudicial to the a ppellant's defence as pleaded in that these were triable issues which can only be resolved after trial. JS He accordingly beseeched this court to reverse the Ruling of the court below and send the case back for trial before another Judge of the High Court. In relation to ground two, Mr. Ndalameta forcefully argued that the information and documents sought may in fact advance the appellant's case or damage the respondent's case. To buttress this argument our attention was drawn to the Board vs Thomas Hedley and Company Limited 3 ; Vernon vs Bosley 4 and Monk vs Redwing Aircraft Company Limited. 5 In the Vernon case it was held that in calculating damages for loss of prospective earnings, information on any new lucrative employment should be disclosed. In the Monk case which was fallowed in the case of Phipps vs Orthodox Unit Trust Limited 6 it was held that the particulars were necessary in order to enable the calculation of the special damages. It was thus contended that the discovery sought, in relation to the employment and remuneration of the respondent, is relevant in determining the damages that the respondent would be entitled to in the event that she was successful at trial. He stressed that this would allow the court to determine whether or not the respondent is only entitled to nominal damages. Counsel also called in aid the case of David Chiyengele vs Scaw Limited 7 in which it was held that the mere entry of a judgment only entitled a party to nominal damages, in the absence of proof of actual loss or damage . J6 In respect of ground three, Mr. Ndalameta argued that the finding by the lower court at page 24 of the Record of Appeal to the effect that the appellant is the one that drafted the document is not supported by any evidence on record. To support his contention, Counsel cited the case of Rosemary Chibwe vs Austin Chibwe 8 where the Supreme Court held that a court's conclusion must be based on facts stated on record. He pointed out that there was no evidence in the court below to the effect that clauses 3.6 and 3.7 of the contract in question were included at the instigation of the appellant. He concluded his submission by calling upon this court to allow the appeal and set aside the Ruling of the High Court. Learned Counsel for the respondent, Mr. Chileshe, filed written heads of argument on 21 st March, 2018. The kernel of the arguments in respect of ground one were that a blanket allegation that the lower court delved into the merits of the main matter is not helpful and therefore defeats the appellant's case. He contended that the court below never determined the main matter in her ruling. Mr. Chileshe argued in respect of ground two that documents sought by the appellant are not relevant at pre-trial stage as conceded by the appellant in paragraph 3.10 at page 5 of their heads of argument. He pointed out that according to the appellant 1n paragraph 3.10 the documents sought are only relevant 1n J7 determining the quantum of damages 1n the event that the respondent succeeds after the trial. In relation to ground three, it was submitted that the appellant has not disputed the fact that the contract of employment which was signed by both parties belongs to the appellant. He argued that it follows that the court was on firm ground to apply the contra proferentem rule to determine the matter. We have scrutinized the Ruling by the court below as well as the arguments by both parties. We will deal with ground one and three together. The issue arising out of both grounds is that the court below went outside what was being considered in the application and went to delve in the merits of the case. A number of authorities were referred to us in support of that contention such as Doctor J. W. Billingsley vs JA Mundi 1 and Musukuma vs Major Baxter Chibanda.2 The other side argue that the court below did not determine the matter in her Ruling. We hasten to agree with the appellant that the court below did delve into the merits of the main matter. Simply put, the application before her was one under Order 24 of the Rules of the Supreme Court, (White Book) 1999 Edition on discovery of d ocuments. The court should have resolved the application of documents and not to extend to look at the merits of the main matter. Turning to ground two, we entirely agree with the court below when it refused to grant the application for further and better ' . J8 discovery of list of documents relating to when the respondent found employment and the terms of that employment contract. That the same was not relevant to the case at hand. While, we appreciate that the appellant would like to use the information in mitigation of damages, the only relevant facts are that the respondent has obtained employment and the date when the employment commenced; information that can be obtained through cross examination. The respondent's actual earning or renumeration is irrelevant. In this case the ground that was pertinent to the court below is grou nd two . The failure of that ground means that this appeal is unsuccessful as the nominal success of grounds one and three have no bearing on the court below. The net result is that the appeal is dismissed. The matter will continue before the same Judge. Costs abide the event to be taxed in default of agreement . .......... ~~·· ·· ·· ·· ··· C. K. MAKUNGU COURT OF APPEAL JUDGE M . M. KONDOLO SC COURT OF APPEAL JUDGE ........ ~fl. J:JPl~l?. ........ . -B.-M·.-"ifA.iu1A COURT OF APEAL JUDGE