Apollo Agriculture Holdings Limited v Herman Josef Kibler (Appeal 2017/2018) [2024] ZMCA 95 (14 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Appeal 217 /2018 BETWEEN: APOLLO AGRICULTURE HOLDINGS LIMITED APPELLANT AND HERMAN JOSEF KIBLER RESPONDENT Coram: Kondolo, Makungu and Majula, JJA On 20th March, 2019, 1 st February, 2024 and 14th March, 2024 For the Appellant : Mr. M. Nalishuwa & Mr. D. M. Silavwe both of Mulenga Mundashi L egal Practitioners For the Respondents : Major J. Mwaaba & Mr. A M. Shilimi both of Ernest Mwansa & Theu Advocates JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. NFC Africa Mining Plc vs Lofoyi Enterprises Limited Appeal No. 27 of 2006. 2. Polliet Kabanda Chikole vs. Bank of Zambia - SCZ Appeal No. 136 of 2004. 3 . The Attorney General vs Agness Ngoma and Charles Kajimanga (as Liquidators of Zambia Cooperative Federation Finance Services Limited (In liquidation) - SCZ Appeal No. 181 of 2000. 4. Agholor vs Cheesebrough Pond's Zambia Limited (1976) ZR 1 (HC). J2 5. Chumbwe vs Mukata SCZ Judgment No. 10 of 2015. 6. Minister of Home Affairs, The Attorney General vs Lee Habasonda (2 007) ZR 207. 7. Agholor vs Cheesebrough Pond's Zambia Limited (1976) ZR 1 (HC). 8. Attorney General vs Marcus Achiume (1983) Z. R.1. Legislation & other authorities referred to: 1. Immigration and Deportation Act, No. 18 of 2010 2 . Hodge M. Malek, Phipson on Evidence, Seventeenth Edition, (London, Sweet and Maxwell, 201 OJ 3. Halsbury's Laws of England 4 th edition, London: Lexis Nexis 1.0 Introduction 1.1 This appeal arises from a decision of Honourable Lady Justice Maka - Phiri of the High Court. The respondent who was in an employment relationship with the appellant, being disgruntled wit h how the employment was terminated, approached the lower court seeking various reliefs. 1.2 Unhappy with the decision that originated from th e Judge, we are being asked to interrogate two issues; firstly, whether or not the appellant could have been found liable for not executing the Equity Participation Agreement (EPA). Secondly, whether t h e Order for repatriation of the respondent was tenable given the fact that he h ad already been provided with a valid air ticket which was unutilized. 2.0 Background J3 2.1 The respondent was employed as an expatriate by the appellant on a two-year contract as Director of Operations. The contract of employment which contained the terms and conditions of employment was executed on 20th January, 2014. The monthly salary for the respondent was pegged at K28,000 which at the time was equivalent to US $5,000. Clause 6 of the contract provided for equity participation which was to be set out in a separate agreement which was, however, never executed by the parties during the course of the respondent's employment. 2.2 On 10th February 2015, the appellant through its advocates wrote a letter to the respondent terminating the employment contract pursuant to clause 3 (c) of the employment contract. Following the termination of the employment contract, the respondent commenced an action in the High Court by issuing a writ of summons and statement of claim that was filed on 15th March 2015. The reliefs sou ght were, inter alia, damages for breach of contract for refusing to execute the equity participation agreement (EPA), damages for wrongful and unfair termination of employment. He further sought damages for inconvenience, mental anguish and embarrassment. J4 3.0 Decision of the Court Below 3. 1 The lower court examined the evidence that was deployed before it and the applicable law. The Learned Judge was of the view that the appellant breached the employment contract when it failed to execute the EPA as agreed in clause 6 of the employment contract. The respondent was accordingly awarded damages for breach of contract. The lower court further held that the respondent was entitled to repatriation and that the appellant should provide an air ticket valid for 3 months. In the alternative, the respondent was to be refunded the costs of repatriation if he had left the country. 4.0 Grounds of Appeal 4.1 The appellant was displeased with the decision of the court below hence the appeal before us anchored on the fallowing grounds of appeal. "1 . The learned trial Judge erred in law and in fact when she held that the appellant breached the Employment Contract by failing to execute the EPA with the respondent notwithstanding that there was no obligation to immediately execute it under the employment contract and a finding that the EPA was not enforceable. 2 . The Learned Judge erred in law and in fact when she held that the appellant should provide one air ticket for the JS respondent valid for three (3) months for his repatriation notwithstanding that the respondent had provided an air ticket valid for a period of one (1) month which the appellant opted not to collect. 5.0 Appellant's arguments 5.1 In support of the 1 st ground, learned counsel for the appellant, Mr. Nalishuwa submitted that from the correspondence that was exchanged between the appellant and the respondent verbally and via email, which was finally enunciated in the employment contract, the respondent understood that the acquisition of shares or equity participation in respect of the EPA was not automatic but to be attained gradually and subject to conditions. It was pointed out that the appellant through an email authored by its Managing Director, Mr. Steyn, made an offer to the respondent to have an opportunity to acquire 20% shares subject to the following conditions: i. A dividend would first have to be declared by the appellant; ii. The 20% would have to be paid for by profit accruing as dividends made during the year; ni. The entire dividend accrued by the respondent would be paid to majority shareholders on a pro rata basis for the portion of shares the shareholders would be selling to the appellant. J6 5.2 Counsel argued that based on the foregoing, the respondent's perceived entitlement to an automatic 20% equity in the appellant was unfounded and cannot be entertained. To strengthen the argument, we were referred to a quotation from the authors of Halsbury's Laws of England 4 th edition at paragraph 962 on the nature of conditions precedent. 5.3 Learned counsel for the appellant further submitted that the role of the court below was to confine itself to the documents between the parties in which their intentions were expressed. The court was therefore expected to construe clause 6. 0 of the employment contract without any preconception as to what the parties intended. 5 .4 It was forcefully argued that the lower court did not refer to the law or evidence before it arrived at its decision hence there was no legal justification for the decision. In this regard the cases of NFC Africa Mining Plc vs Lofoyi Enterprises Limited1 ; Polliet Kabanda Chikole vs. Bank of Zambia2 ; and The Attorney General vs Agness Ngoma and Charles Kajimanga (as Liquidators of Zambia Cooperative Federation Finance Services Limited (In liquidation) 3 were cited as authority for the proposition that, "judgments must be anchored on (or supported by) evidence adduced before the Court." 5.5 The thrust of the submission in respect of ground 2 was that section 28(8) of the Immigration and Deportation Act No. 18 J7 of 2010 places an obligation on the employer to repatriate an employee following the termination of an employment contract in the event that the latter fails to leave Zambia. It was contended that the lower court was therefore in error when it held that the respondent must be refunded the expenses incurred for traveling back to his country. Counsel stressed that the present case is distinguishable from the case of Agholor vs Cheesebrough Pond's Zambia Limited4 which the lower court relied on in awarding repatriation. Counsel pointed out that the 3 months window period awarded in the Agholor (supra) case was based on the length of litigation unlike in casu. 5.6 Counsel observed that in the present case the respondent was provided with a one (1) month air ticket for his repatriation. Finally, counsel argued that trial courts have a duty to consider all the evidence that has been presented and thereafter form an opinion. The court must subsequently review the evidence as guided by the Supreme Court in the cases of Chumbwe vs Mukata5 and the Minister of Home Affairs, The Attorney General vs Lee Habasonda6 . In this case, the lower court chose to ignore the evidence that was before it on the issue of repatriation. 5.7 We were accordingly called upon to set aside the judgment of the lower court. 6.0 Hearing of the Appeal J8 6.1 At the hearing on 1st February 2024, learned Counsel for the appellant Mr. Nalishuwa raised a preliminary objection to the propriety of the respondent's heads of argument for having been filed out of time without leave of this Court. 6.2 Major Mwaaba, learned Counsel for the respondent conceded that the heads of argument were filed out of time without leave. He , however, implored us to exercise our discretion to allow them on record due to the fact that the delay was occasioned by the demise of the previous counsel for the respondent. 6.3 Having looked at the submissions from both parties we upheld the objection as there was no compelling reason advanced by the respondent for the infraction of this Court's Rules which require that leave to file out of time must have been sought prior to filing the heads of argument. Given the foregoing, the respondent lost his right to present his opposing view on the appeal. 6.4 Reverting to the main appeal, Mr. Nalushuwa placed full reliance on the heads of argument that had been filed in support of the appeal. 7.0 Decision of this Court J9 7. 1 We have assiduously examined the record of appeal and the arguments by the appellants together with the authorities referred to. In determining the appeal, we shall deal with each ground of appeal in the manner they have been presented. 8.0 Non-execution of EPA 8. 1 The question that arises for determination is whether the failure to execute the EPA constituted a breach of the contract of employment. The court below was of the considered view that; "It is clear from the evidence that execution of the EPA was a fundamental term of the employment contract. By failing to execute it no matter the circumstances} the defendant failed to discharge its obligation under the e mployment contract and as such was in breach of the contract of employment.}} 8 .2 We respectfully disagree with the position taken by the trial Judge for the simple reason that the contract of employment entered into by the two parties governed their employment relationship. The contract (see page 255 ROA) specifically clause 6.0 reads ; "Equity Participation: you will be entitled to participate in equity participation arrangement as covered under a separate agreement. }} JlO 8.3 It is plain from the evidence on record that the above clause 6.0 was the subject of another agreement which was never actualized. There was going back and forth between the parties. The respondent did press to have it concretized but unfortunately as observed by the court below, this led to the relationship being fractured. 8.4 We have critically analyzed the effect of the non-execution of the EPA. From our perspective, although it was one of the conditions embodied in the employment contract, it did not crystalize. There were various discussions held and a flurry of emails exchanged but the bottom line is that these discussions collapsed and/ or failed. The net effect is that there was no signed EPA in existence. Significantly, there was no timeframe set for the execution of the EPA. Furthermore, the crystallization of the EPA was contingent on the fulfillment of the conditions precedent, namely; i. A dividend would first have to be declared by the appellant; ii. The 20% would have to be paid for by pro.fit accruing as dividends made during the year; nr. The entire dividend accrued by the respondent would be paid to majority shareholders on a pro rata basis for the portion of shares the shareholders would be selling to the appellant. Jl 1 8.5 Regarding the nature of the conditions precedent, we stand guided by the learned authors of Halsbury's Laws of England, 4 th edition paragraph 962 where they opine as follows: "A contractual promise by one party (A) may be either unconditional or conditional. A conditional promise is one where liability to perform depends upon something or an event; that is to say, it is one of the terms of the contract that liability of the party shall only arise, or shall cease, on the happening of some future event, which may or may not happen, or one of the parties doing or abstaining from doing an act. .. The major categories of conditional promises are: (1) Conditions Precedent to the formation of the contract; and (2) Conditions suspensive of performance ... A condition precedent to the formation of a contract. .. should be distinguished from a condition precedent to the performance of the contract. In the former case, no contract comes into existence until the contingency occurs ... " 8. 6 The long and short of our understanding of the case at hand is that the condition precedent to the formation of the contract was not fulfilled and the parties failed to reach an agreement which resulted in the EPA not being executed. We are of the considered view that there is merit in ground 1 as there was no breach of contract and the finding of the trial Judge on this aspect was made in error. We consequently uphold this ground of appeal. J12 9.0 Ground 2 - Repatriation 9 . 1 The grievance in the 2 nd ground of appeal emanates from the court below holding that the respondent ought to be repatriated by giving him an air ticket valid for 3 months notwithstanding the fact that previously the appellants had bought him a ticket which was unutilized. 9.2 We shall begin with an examination of the prov1s1ons of the contract of employment which appear on pages 255 to 259 ROA, particularly clause 11 . From our scrutiny of the contract, we note that there was provision for airfares back to Florida in certain circumstances. Among them was provision for an airfare on an annual basis and also on satisfactory completion of the employment contract. There is no specific provision regarding repatriation in the circumstances that the respondent found himself in. 9 .3 Be that as it may, we are alive to the law on repatriation as spelt out in the Immigration and Deportation Act specifically in section 28(8). 10.0 The Law on Repatriation 10.1 For ease of reference, section 28(8) of the Immigration and Deportation Act provides as follows: "28(8) An employer shall, on termination of an employment contract of, or the resignation or dismissal of, Jl3 a foreign employee who is the holder of an employment permit, issued under subsection (1 ), be fully responsible for the repatriation of the former foreign employee and other costs associated with the deportation of that former foreign employee if that former foreign employee fails to leave Zambia when no longer in employment." 10.2 Flowing from the above, it is clear that the appellant has a legal obligation to pay for the repatriation of the respondent being a foreign national who was recruited from overseas. The appellant in a bid not to fall foul of the law did purchase an air ticket. The letter of termination of employment dated 14th February 2015 notified the respondent of the ticket Order. From what we have been able to glean from the record, the respondent did not utilize that ticket. Neither was there any evidence led regarding the reasons for his failure to pick it up. As a matter of fact, the record is silent on the issue of the ticket that had been purchased. Are we to, therefore, assume that it was not utilized on account of the respondent pursuing some legal redress? As a court, we are precluded from making assumptions or filling in the gaps in the evidence. The burden of proof lies on the person asserting the affirmative of an issue. The preceding proposition of law was well articulated by the learned authors of Phipson On Evidence, 14th edition, paragraph 402 at page 50 where it states: J14 "The burden of proof lies upon the party who substantially asserts the affirmative of the issue. The rule which applies is ei qui affirmat non ei qui neg at incumbit probation ... )) 10.3 We therefore do not see any basis upon which the court below awarded the respondent a ticket given that, the appellant had earlier already fulfilled that contractual obligation. The appellant company could not be penalized for having purchased a ticket which was not used. 10.4 The respondent did not provide any justifiable reason for not taking up the off er for the ticket. It is worth noting that an off er to repatriate cannot be given in perpetuity. The appellant has drawn our attention to the case of Agholor vs Cheesebrough Pond's Zambia Limited (supra) on the principle that an offer to repatriate cannot remain open indefinitely . In that case, a period of 3 months from the date of termination was considered reasonable. The appellant sought to distinguish the aforecited case from this case in that in the latter, the respondent was provided with repatriation on the basis of his engagement. That the distinction with the Agholor (supra) case is also the peculiar circumstances of that case. 10.5 We could not agree more with the appellant. It complied with its obligation to repatriate the respondent in accordance with the Immigration and Deportation Act. For undisclosed reasons, the respondent failed and/ or neglected to use the J15 ticket. There are no reasons on the record which may have merited the discretion by the court to extend the period. 10.6 In light of the foregoing, we are compelled to interfere with the Order by the trial Judge for not being supported by the evidence. We accordingly set it aside in line with the celebrated case of Attorney General vs Achiume7 which clothes us with the power to interfere where there has been a finding which is not supported by the evidence. 11. 0 Conclusion 11.1 We have found merit in the 2 grounds of appeal. Crisply, the sum of our judgment is as follows: 1. The EPA having not been executed meant that it did not crystalize, therefore there was no breach of contract. 2. The obligation to repatriate the respondent pursuant to the Immigration and Deportation Act had been complied with. The failure to utilize the air ticket without advancing valid reasons militates against the respondent. Therefore, the Order for the purchase of another air ticket is set aside. 12.0 Costs J16 12.1 Costs are granted to the appellant to be taxed in default of agreement. c-= M. M. Kondolo, SC COURT OF APPEAL JUDGE ··· ······ ···~ C. K. Makungu COURT OF APPEAL JUDGE ·· ····· B. M. Ma tfa COURT OF APPEAL JUDGE