Davie Siulapwa (Suing as Donee of the special power of Attorney By Soteli Chisupa) v Wesley Chilubanama (2022/HP/1092) [2024] ZMHC 252 (14 March 2024)

J1 IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY ~\:.?uSLICOFZAMa1,q HOLDEN AT LUSAKA (Civil Jurisdiction) ~ INCIFW... ~ BETWEEN: ~ 1 4 MAR 202~ DA VIE SIULAPWA (Suing as Donee of the special power of Attorney By Soteli Chisupa) AND 2022/HP/1092 PLAINTIFF WESLEY CHILUBANAMA EMMANUEL CHILUBANAMA LUNTEX CONSTRUCTION AND LOGISTIC LTD 1 s t DEFENDANT 2 nd DEFENDENT 3rd DEFENDANT BEFORE HON MRS JUSTICES. KAUNDA NEWA THIS 14t h DAY OF MARCH, 2024. For the Plaintiff For the Defendants In person Messrs Shepande and Company JUDGMENT CASES REFERRED TO: 1. Salomon v Salomon 1897 AC 22 2. Associated Chemicals Limited v Hill and Delamain Zambia Limited and Ellis And Company (As A Law Firm) 1998 SJ 7 LEGISLATION REFERRED TO: 1. Minimum Wages and Conditions of Service Act Chapter 276 of the Laws of the Zambia 2 . The Companies Act No 10 of 2017 OTHER WORKS REFERRED TO: 1 . Labour Law in Zambia: An Introduction, 2 n d Edition, by Chanda Chungu and Ernest Beele 2020, Juta and Company (Pty) Ltd J2 1. INTRODUCTION 1.1 The Plaintiff, Davie Siulapwa, acting under a power of Attorney on behalf of Soteli Chisupa, commenced these proceedings on 15th July, 2022, by Writ of Summons accompanied by a statement of claim and the other requisite documents, against Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited claiming: I. Unpaid labour dues amounting to Two Hundred and Sixteen Thousand Four Hundred Kwacha (K216, 400. 00) tabulated below. n. Salary arrears for the months worked as indicated in the demand letter amounting to Sixty-Eight Thousand Kwacha (K68, 000. 00). iii. Unpaid subsistence allowance at One Hundred and Ninety-Five Kwacha (Kl 95. 00) per night for two (2) years being seven hundred and twenty (720) days totaling One Hundred and Forty Thousand Four Hundred Kwacha (K140, 400.00). w. Leave pay dues as per labour laws totaling Eight Thousand Kwacha (KB, 000. 00). v. Damages for inconvenience. VI . Costs. VIZ. Any other relief that the Court may deem fit. 2. STATEMENT OF CLAIM 2.1 The contentions in the statement of claim, show that Wesley Chilubanama and Emmanuel Chilubanama are co-directors J3 1n Luntex Construction and Logistics Company Limited which had a running contract with the Ministry of Works and Supply from 2015, to build Twenty (20) low cost houses in Nalolo Western Province. It was stated that in pursuance of that contract, Soteli Chisupa and others were recruited and employed in Lusaka to go and work at the construction site in Nalolo Western Province. 2.2 The averment was that Soteli Chisupa worked for Luntex Construction and Logistics Limited from 2015 to 2018. However, from August 2015 to January, 2018, Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited failed or neglected to meet their statutory obligations of paying worker's salaries and even abandoned the project leaving the workers stranded at the site. Thus, Soteli Chisupa had to find his own means of returning to Lusaka. 2.3 It was also stated that Soteli Chisupa had on several occasions since 2018, tried to engage Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited to pay him his salaries to no avail. 3 . DEFENCE BY WESLEY CHILUBANAMA, EMMANUEL CHILUBANAMA AND LUNTEX CONSTRUCTION AND LOGISTICS LIMITED 3 . 1 In their defence, Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited did not dispute the capacities in which they had been sued or that in which Davie Siulapwa had brought J4 these proceedings. They did however deny that Soteli Chisupa was an employee of Luntex Construction and Logistics Limited from May 2015 to 2018. 3.2 The defence was that Soteli Chisupa was contracted as project foreman by Luntex Construction and Logistics Limited for the construction of Twenty (20) low cost houses in Nalolo District in Western Province. It was denied that Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited failed or neglected to pay the workers their salaries at the site in Nalolo, and they even abandoned the project leaving the workers at the site. 3.3 Their defence was that the works at the site were halted and Soteli Chisupa elected to remain within the district when there was no work going on at the site, which had nothing to do with his contr actual obligations. Thus, it was contended that Soteli Chisupa is not entitled to the reliefs sought. 4. EVIDENCE LED AT TRIAL 4.1 At trial, only Davie Siulapwa called witnesses, as the Defendants, Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited or their advocates did not appear at trial. PWl-PETER BOWA 4.2 This witness produced his witness statement at trial as his evidence. The evidence as contained in that witness statement, 1s that Peter Bawa worked as a Project Consultant and Quantity Su rveyor after Luntex Construction and Logistics Limited successfully bid for the JS construction of Twenty (20) low cost houses in Nalolo District of Western Province in 2015. 4.3 He further testified that he recommended the engagement of Soteli Chisupa as Site Building Foreman for the project in Nalolo, as he had vast experience, and he was successful on being interviewed by the Luntex Construction and Logistics Limited management. It was also testified that it was agreed that an employment contract would be executed a month after the engagement. PW2-JOSEPH MALUNGA 4.4 Joseph Malunga also produced his witness statement as his evidence before Court. In that witness statement, he told the Court that he worked for Luntex Construction and Logistics Limited from 2014 to 2017 when he was laid off. It was his testimony in that respect, that he had worked with Soteli Chisupa who was the building foreman on the Nalolo District project in which Luntex Construction and Logistics Limited was to construct Twenty (20) low cost houses. 4.5 He further testified that Soteli Chisupa was introduced to the management of Luntex Construction and Logistics Limited, Wesley Chilubanama and Emmanuel Chilubanama, by Peter Bawa, the Project Consultant and Quantity Surveyor and he was posted to Nalolo for the project. Joseph Malunga testified that he left Soteli Chisupa in Nalolo when h e left there in 201 7, as they were not being paid their salaries. JG PW3-CHISUPA SOTELI 4.6 In his evidence which was contained in the witness statement that he produced at trial, Soteli Chisupa stated that he was introduced to Emmanuel Chilubanama the Director of Luntex Construction and Logistics Limited in 2015, by Peter Bowa, a Quantity Surveyor and Project Consultant. He told the Court that he was successful on being interviewed, and the conditions of service were agreed by the parties. 4.7 In that respect, his evidence was that he was engaged as a building foreman by Luntex Construction and Logistics Limited, and he was posted to Nalolo in Western Province, where Luntex Construction and Logistics Limited had a contract to construct Twenty (20) low cost houses in May, 2015. It was further his evidence, that he travelled to Nalolo in the company of Joseph Malunga the Project Manager, Sunday Mutale the site clerk and Robbie Nkoswe the Accounts Officer. 4.8 Soteli Chisupa's continued testimony, was that they started working on the housing project and Wesley Chilubanama who was with them at the site, left for Lusaka promising to return , but he did not do so. He also stated that the other supervisor also left the site, and he was left there with the other workers stranded. Soteli Chisupa testified that he left the site on 4 th March, 2018, with the help of the area Councillor who gave him transport money. J7 4.9 His evidence was that from that date, he had been pursuing the directors Wesley Chilubanama and Emmanuel Chilubanama for the period that he had worked for the company to no vail. He stated that due to his ill health, he entrusted his cousin Mr Siulapwa to pursue Wesley Chilu banama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited in the Courts of law. 5 . DECISION OF THIS COURT 5.1 I have considered the evidence. FACTS NOT IN DISPUTE 5.2 It is not in contention that Soteli Chisupa was employed as a Building Foreman for Luntex Construction and Logistics Limited which had a contract to construct Twenty (20) low cost houses in Nalolo in Western Province in 2015, and he was posted to go and work there. 5 .3 The facts that are common cause are also that Soteli Chisupa left the construction site at Nalolo on or around 4th March 2018. FACTS IN DISPUTE 5.4 What is in dispute 1s whether Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited owe Soteli Chisupa as alleged? ANALYSIS 5.5 From the pleadings and evidence that was led, the fact that Soteli Chisupa was employed by Luntex Construction and Logistics Limited, and he was deployed to go and work at the Nalolo site where Luntex Construction and Logistics Limited J8 had a contract to construct Twenty (20) low cost houses, was not disputed. 5.6 Soteli Chisupa testified that after they had started working on the project in Nalolo, Wesley Chilubanama who is the 1st Defendant in this matter was with them, but he left them after sometime with a promise to return. However, he did not do so. Then later, the other supervisor also left the site for Lusaka leaving Soteli Chisupa and the other workers stranded at the site. 5.7 Joseph Malunga who also worked at the site, in his testimony told the Court that when he left the site in 20 17 due to non-payment of salaries, he left Soteli Chisupa at the site. 5.8 No evidence was led by Soteli Chisupa or indeed Joseph Malunga, as to when the failure to pay salaries at the site started. The defence alleges that the project was halted and that Soteli Chisupa elected to remain at the site which had nothing to do with the work that he was contracted to do by Luntex Construction and Logistics Limited. However, the reason why the works were halted at the site were not given. 5. 9 At page 1 of Davie Siulapwa's bundle of documents is a schedule of unpaid bush allowances which total Sixty-Eight Thousand Kwacha (K68 , 000.00). Then at page 2 of the said bundle of documents, Soteli Chisupa appears at number 2 with his monthly salary being indicated as Four Thousand Kwacha (K4 , 000.00) for August, 2016. The same amount is J9 further indicated at page 4 for September, 2016 and at page 5 for December, 2016. 5.10 The sum of Four Thousand Kwacha (K4, 000.00) is also indicated as due to Chispua Soteli for January 201 7, February, 2017, March 2017, April, 2017, May, 2017, June 2017, July, 2017, September, 2017, October 2017, November, 2017, December, 2017, January, 2018 and February, 2018. 5.11 It is trite that a contract of employment is governed by its terms and conditions. It may be oral or in writing. The testimony that Peter Bowa gave, was that after Soteli Chisupa was engaged by Luntex Construction and Logistics Limited it was agreed that the contract of employment would be executed within One (1) 1non th of the engagement. However, there is no written contr act of employment that was produced. 5.12 The learned authors Chanda Chungu and Ernest Beele in the book Labour Law in Zambia: An Introduction, 2 n d Edition, Juta and Company (pty) Ltd, 2020 at page 20 in paragraph 2. 6 . 1 state that: "Legislation has provided for the terms and conditions of service that are enjoyed by employees in Zambia. Terms imposed by statute can be referred to as 'default' rules that apply to all applicable contracts of employment unless otherwise agreed. The terms provided for by t he JlO relevan.t legislation set out the basic minimum or floor of conditions of protected employees." UNPAID LABOUR DUES AMOUNTING TO TWO HUNDRED AND SIXTEEN THOUSAND FOUR HUNDRED KWACHA (K216, 400.00) 5.13 The first claim is for unpaid labour dues amounting to Two Hundred and Sixteen Thousand Four Hundred Kwacha (K216, 400.00) . What constitutes this claim as unpaid labour dues was not specified in the statement of claim, such that this Court would understand the basis of the claim. Davie Siulapwa as Attorney, suing on behalf of Soteli Chisupa bears the burden of proving that Soteli Chisupa is in fact entitled to the claim. 5.14 There being no basis for the claim, and no evidence having been led to prove the said claim, it fails and it is dismissed . SALARY ARREARS IN THE AMOUNT SIXTY-EIGHT THOUSAND KWACHA (K68, 000.00) 5 .15 The document evidencing this claim is the document at page 1 of Davie Siulapwa's bundle of documents which shows the months that the salary payments are claimed. The breakdown of all the workers' salary arrears that are due are at pages 2-14 of the said bundle of documents. 5.16 In my Orders for directions, I directed that there would be inspection of documents, and there is nothing on the record to show that no such inspection was done. There being no objection to page 1 of Davie Siulapwa's bundle of documents which shows the salary arrears that were due to him, entails Jll that Wesley Chilubanama, Emmanuel Chilubanama and Luntex Construction and Logistics Limited raised no objection to the authenticity of the document. 5.17 In terms of who employed Soteli Chisupa, it has been seen that it was Luntex Construction and Logistics Limited which is a company that is incorporated at law, as evidenced by the print out from the Patents and Companies Registration Agency (PACRA) for Luntex Construction and Logistics Limited which is exhibited to the affidavit in opposition to the summons for misjoinder dated 4 th January, 2023. 5.18 That print out shows that the company was incorporated on 9 th July, 2012, and that it last filed its' annual returns on 28 th December, 2020. 5.19 Section 16 of the Companies Act No 10 of 2O17 provides for the legal effect of incorporation of a company. It states that: "16. A company registered in accordance with this Act, acquires a separate legal status, with the name by which it is registered, and shall continue to exist as a corporate until it is removed from the Register of Companies." 5 .20 Further Section 22 of the Companies Act, No 10 of 2017 states that: "22. A company shall have- (a) perpetual succession and a common seal, capable of suing and being sued in its corporate name and shall, subject to this Act, have power to J13 reason for the halting of the works, which would impact on how Soteli Chisupa's contract of employment was terminated. 5.25 Soteli Chisupa's assertion was that Luntex Construction and Logistics Limited abandoned him and the other workers at the site in Nalolo. This has not been successfully rebutted and therefore, on a balance of probabilities, Soteli Chisupa succeeds on his claim that he is owed in unpaid salaries. I accordingly enter Judgment in his favour, for unpaid salaries in the sum of Sixty-Eight Thousand Kwacha (K68, 000.00) which shall carry interest at the average short-term deposit rate from date of issue of the Writ of Summons until Judgment, and thereafter at the Bank of Zambia lending rate until payment. PAYMENT OF UNPAID SUBSISTENCE ALLOWANCES AT K195.00 PER NIGHT FOR TWO (2) YEARS (720) DAYS (Kl40, 400.00) 5 .26 As regards this claim, other than stating it as a claim, Soteli Chisupa did not plead any facts as to when exactly he started sleeping in Nalolo save to state that he went there in 2015 and he left on 4 th March, 2018 after a Councillor in the area gave him transport money. Further, he did not state the basis for claim, that is whether it was incorporated as a term and condition of his employment. 5 .27 The Employment Act Chapter 268 of the Laws of Zambia is the law that governed contracts of employment at the time of Soteli Chisupa's employment with Luntex Construction J14 and Logistics Limited. Further, th er e was the Minimum Wages and Conditions of Service Act Chapter 276 of the Laws of the Zambia, which under Section 3 s t ated t h at: "3. ( 1) If the Minister is of the opinion that no adequate provision exists for the effective regulation of minimum wages or m .inimum conditions of employment for any group of workers he may, by statutory order, prescribe- Regulation of wages, etc. (a) rates of wages to be paid to workers by the hour, day, week or month; (b) normal hours of work in any day or week; (c) normal working days in any week or month; (d) rates for any work done in excess of or outside the normal hours of work or the normal working days; {e) rates of paid holidays or any conditions attaching to the granting of such holidays; (f) rates for any piecework; (g) rates of allowance for any food or housing; and (h) any other matter which in the opinion of the Minister is necessary or expedient to prescribe: Provided that if the group of workers in respect of which a statutory order is to be made is J16 Provided t hat where the employee is required to work outside t he country, the employee shall be paid subsistence allowance of not less than three hundred and ninety thousand kwacha." 5.32 Luntex Construction and Logistics Limited in its' defence stated that Soteli Chisupa is not entitled to the reliefs claimed. Therefore, in essence it did not d efend the claim. It has been seen that on deployment, Soteli Chisupa was taken to work at the site in Nalolo from Lusaka, which was obviously outside his home . 5.33 That being the position, Soteli Chisupa was entitled to be paid subsistence allowance for the period that he worked for Luntex Construction and Logistics Limited outside his home town. He testified that he went to Nalolo in May, 2015 and he left there on 4 th March, 2018, which is a period of a bout Two (2) years and Nine (9) months. However, he claims for Seven Hundred and Twenty (720) days being a period of Two (2) years bringing the total amount claimed to One Hundred and Forty Thousand Four Hundred Kwacha (K140, 400.00). 5.34 It is trite that Judgment cannot be entered for an amount that is more than that which is claimed. I have stated that no defence was raised to this claim, and I accordingly enter Judgment in favour of Soteli Chisupa for the sum of One Hundred and Forty Thousand Four Hundred Kwacha (K140, 400.00) as subsistence allowance. The amount shall carry interest at the average short-term deposit rate from the date J17 of issue of the Writ of Summons until Judgment and thereafter, at the Bank of Zambia lending rate until payment. PAYMENT OF LEAVE DAYS AT A RATE OF TWO LEAVE DAYS PER MONTH TOTALLING EIGHT THOUSAND KWACHA (KS, 000.00) 5.35 As regards the claim for leave days, other than this claim being stated, no evidence was led to show whether Soteli Chisupa ever went on leave, such that this Court would be able to decipher the merits of his claim. No contract of employment was produced. However, it is trite as already seen, that statutory provisions with respect to employment are default conditions of service. 5.36 Therefore, Soteli Chisupa was entitled to leave pay. The evidence on record shows that Soteli Chisupa was engaged in May, 2015 and he left the employment of Luntex Construction and Logistics Limited on 4 th March, 2018. 5.37 He was therefore entitled to Two (2) leave days in a month. For the period, it comes to Seventy-Two (72) days, at Two (2) days per month for the Thirty-Six (36) months. I note that Soteli Chisupa claims Eight Thousand Kwacha (K8, 000.00) as leave pay, and the claim not having been successfully defended, I enter Judgment in his favour for the said amount, which shall carry interest at the average short term deposit rate, from the date of issue of the Writ of Summons until Judgment, and thereafter at the Bank of Zambia lending rate until payment. J18 CLAIM FOR DAMAGES FOR INCONVENIENCE 5 .38 In respect of this claim, there are no facts that were pleaded and no evidence was led to establish the basis of the claim. It therefore fails and it is dismissed. 6. CONCLUSION 6.1 Davie Siulapwa as Attorney for Soteli Chisupa has su cceeded on the fallowing claims against Luntex Construction and Logistics Limited: 1. Paymen t of salary arrears in the sum of Sixty-Eight Thousand Kwacha (K68 , 000.00) and One Hun dred a n d Forty Thousand Four Hundred Kwacha (Kl40, 000.00) as subsistence allowance. 2. Eight Thousand Kwacha (KB, 000.00) as leave pay. 3. The amounts shall carry interest thereon, at the average shor t -term deposit r ate from the date of issue of the Writ of Summons u n til Judgment and thereafter, at the Bank of Zambia lending rate until payment. 6.2 Having succeeded on those claims, Davie Siulapwa 1s awarded costs against Luntex Construction and Logistics Limited which shall be taxed in default of agreement. Leave to appeal is granted. DATED AT LUSAKA THE 14t h DAY OF MARCH, 2024 REPUBLIC OF ZAMBIA S. KAUNDA NEWA HIGH COURT OF ZAMElltfG fl COURT JUDGE ll~ AR 202~ K_P S . NEWA. J P. O . BOX 50067, LUSAKA