Early Chaponda and Ors v Energo Investment Limited (SCZ APPEAL NO.13/98) [1998] ZMSC 110 (29 December 1998)

IN THE SUPREIVIE COURT OF ZAMBIA SCZ APPEAL NO. 13/98 HOL0£N AT LUSAKA (Civil Jurisdiction) EARLY CHAPONDA AND OTHERS AND ENERCO INVESTMENT LIMITED APPELLANTS RESPONDENT Cor~~m: . Saluila ADCJ, Clrnila and Le~anika 29th October aml..29th December,1998 For the Appellants: Mr. V. Lisimba with Mr. B. S. Miaze of Lisimba and Company. For the Respondent: Mr. D. Bukali of M. Musonda and Company. Saka la . J. S. delivered the Judgment of the Court. JUDGMENT For cu11ve11ience the appellants will be refeITed to as tl1e plaintiff and the respumie11t as the defendant which they were in the court below. Tliis is an appeal against a judf,11nent of the High Court dismissing the appell.tnts' numerous claims of various sums of monies due to them as set out in the endorsements to the amended writ of summons. The matter was put 011 a short cause list at the request of the parties and proceeded by way of Sllllllllary trial. The salient facts as accepted by the leamed trial judge were not in dispute. The plaintiffs, all Zambians, were recruited in Zambia between I 983 and l 989 by the defendant company, a forei,gn company with i.rn office in Zambia, to execute various works for the defendant in Iraq. Contracts of employment were drawn and executed in Zambia. They were expressed in Zambian currency: The main tenn of those contnicts, which gave rise to this litigation, related to salaiy. The contracts provided salary payment in two countries. The tenn relating to payment of salary, common to all the contracts and signed by each of the p1'1intiffs was coucl1ed in these terms: '' ........ salary in the amount of K ............... 70% of total salary µayable through Bank of Zambia. 30% of total salary payable in Iraq at previous rate". The plaintiffs went to work in Iraq. While in Iraq they were each paid The defendant company produced 30l½i of the salary component. numerous documents at trial showing that various sums of money were paid into various individual ernployees'acc_ounts with Barclays Bank, It was not in dispute that the company opened these Mutaba House. accounts on behalf of the employees. There is evidence on record not in dispute that while in Iraq, the plaintiffs found the weather very unfavourable. They learnt, from fellow workers from other countries, also recruited by the defendant, that they were on different better conditions of service which included various allowances. There was no complaint as regards the plaintiffs remuneration in Iraq. It was common ground that on return from Iraq the plaintiffs raised complaints against the defendant in relation to various aJlowances which now form part of the claim. It was also common cause that most of the allowances the plaintiffs were claiming were not part of the signed coutract and were only raised long after the contract of employment had been 1-Jerformed. But in the course of negotiations the defendant company agreed to pay each plaintiff Kl 0,000 for every month in lraq. This amounted to K 112 million. After this payment the plaintiffs raised some twelve fw1her claims which included, overtirne, risk allowance, travelling allowant:e, housing allowance, weather allowance, income tax, repatriation allowm1ce, grn1nity, expatriate allowance, education allowance, family allowance and upkeep allowance. Subsequently, these claims were r!.:!duced to four namely, risk, weather, travelling and gratuity. Discussions the plaintiffs' on these four allowances were conducted involving, coJ11111ittec, the defendant company, and the Ministry of Labour and Social Services. The plaintiffs committee agreed and prepared a complete and final schedule of payment covering all the plaintiffs who worked in Iraq from 1985 to 1989. The schednle was entitled "Final Settlement". It discloses various paymellts made to the plaintiffs in accordance with the length of period of service. 111 passing , it must be observed that the plaintiffs in their writ of endorsements to summons were also claiming for repayment of the Zambia National Provident Fund Contributions. The lean1ed trial judge found this cl..1i111 startling because this type of claim, being statutory, can only be claimed from the Zambia National Provident Fund. We agree with him. The learned trial judge reviewed all the documentary and oral evidence before him. He found that all the allowances being claimed did not fonn part of the contract but that although the defendant company would have beeil c11Litk:d to decline to be drawn into negoti21tions which followed, the d..:J~·11d:,11L co1111x111y nonetheless agreed to pay for these allowances. The tt-1;d i.:uun found that the claims in respect of risk, weather, travelling and gr,!luity were fully paid and held that there were no merits in the actiqn mi ... ! ll1:1t the pl,1intiff's detailed submissions on the four claims completely rni::;;:;i;.'d 1[1l;: point. A:;, 1\::;!.:1n!s the claim on salary the court found that the contracts were not U11:1111biquuus; they provided for 70% payment of salary in Zambia. The le:1n1 .. ::d tri,d judge hdd that the defendant company was not under any cu1JLr~1..:tu:tl ob!ig:ation to remit any funds from Iraq to Zmnbia. The court fui"lli...·!' li..:ld that for practical purposes it was completely immaterial that p:1y111e111:-; were not made through the Bank of Zambia as per contract of (;:111pluy1111..·1it. Tile court accepted the defence evidence and dismissed the vvl 1ulc d:1 i1 n. U11 lJ..::kdi' of the plaintiffs a memorandum of appeal was filed containing si.::,·.:11 gruu11ds of ;1ppeal. The advocates for the appellants filed written h.::1d:-. uf argument which he informed the court did not follow the s,.::qu,:11::;; ur the grounds of appeal contc1ined in the memorandum. 011 :1ccu1u1t of the view we take of this _appeal we do not find it necessary tu r.:vis::w the submissions in detail. The first argument advanced by Mr. Li :-;i1J1b:1 u11 behalf' of the appellants was that the contract of employment pruviJeLI that 70<% of each appellm1t's salary was payable through Brn1k of Z,1111lii:1 while JO% was payable in Iraq. He pointed out that the currency i11 tli-: cu11tract w1.1s expressed in Kwacha; but he contended that when the 1.1pp~ll:1111::; got to lr,HJ, there was a variation to the contract in that payment .:."-pi-...~ss<..::J in Dollars to be transferred in Dollars because the Irc1q vv,1:-; D;n;,,- vv:1s Hol convertible currency. According to counsel the remittances \-\.:1-..: 11ut inade i11 Dollars as earned, but there were payments made in i11 Kwad1a through Barclays Bank which was not part of the Z:1111LJi:1 l'.u111r~1L'L Cou11sel submitted that 70<% paymeut having not been made th1l1ugl1 H:111k of Zn111bia, the failure to do so amounted to a bread1 of cu11li':1-.:l. Ii, r;:spunse to this argument Mr. Bukali, counsel for the defendant cu111p:111_y, pointed out that the 70% ~alary component was pay1.1ble in Z:1J11bi:1 tltruugh the Batik of Zambia. He argued that the contracts were :1ml executed in Zambia and the cmTency therein was in cu1i-.:lml1::~! Z:i111lJi;11t Kwaclw. He submitted that the 70% salary component was µ:1y:1l;k iii Z,mibia and that it was for this reason why the contracts did lllil specify at what n1te the 70% was to be paid while the 30% was Spi;:..:ilii.:~d!y express~d to be converted in Iraq "at previous rnte". Counsel acgu-:J tk1l the payroll prepnred in Iraq was not a variation and was not prcp~ii-...~d tu vary the contracts and that no funds were remitted to Zambia. 1-1~ ~\pl;.1i11ed tli;1t the defendants used to prepare two payrolls. The one iii Zambia showed 70% component of salary payable to pr..::p;_ircd i11divi'-lu:d m;cuu11ts of the appellants with Barclays Bank. the cu1nracts of employment. V{.: ll ;1 ve cu11 side red the arguments centred on the p lai nti ff' s contracts of e111pluyn 1ent. The crux of the matter centers on the 70% salary component In our view the issue is not as i11 cu111plic;_1Led ;.is portrayed by the detsiled submissions. The issue involves i11Lcrpreluion of one term in the con.tract of employment. th-:· To u11,.!,,_.1·;;1:111d tl1e submissions and the term of the contract in issue in the p1·up..:r i.'.ll11text it is relevant to quote the whole first clause of the contract fru111 ;11iy uf tlie two sample contracts as contained on the record. The first l'. L1u:-;~· or th<;: 4.;ontract after the preamble reads: •· 1. E1icrgoi11vest engages ...... .. as ......... for the work in Iraq for the period .......... commencing .... .. ..... from under the following terms:- s~1L1ry iii the amount of K ......... 70% of total salary payable ll11 uugli Bank of Zambia. 30% of total salary payable in Iraq :tl previous rate." ll i.-; pc-1ti11(;:nt to note that this term relating to salary is phrased in such a it contains three independent and distinct components 111:1n11-:r mu1t~ly:- that :IH1uunt in Kwacha, 70% of total pnyable through Bank of Zambia~ :1,1d J(t% oftutal payable in Iraq at previous rate. I l w;_Is cuI1111Hin cause that the contract was drawn up and executed in Z;1111lJi~1 fur s1;:rviL:es to be rendered in lraq. Mr. Lisimba contends that si11~.: 70'1:) w,is to be paid through Bank of Zambia in Kwacha, there was v~iri;_1tio11 to the contracts when the plaintiffs got to Iraq since the payment w:,::-; tl 10.:1\.:i.di~r exµressed in Dollars. In our view the contention that there \v:1s v:1ri~1tiu11 appears to us to be imagi1rnry. The contract itself st~1ted that Ju~., u!' \lJt,11 s;1!;1ry was to be pay8ble in Iraq at previous rnte. Obviously tliis 111u:-il l\,1ve 1neant that 30% of the Kwacha salmy be paid in Iraq, not in Kw:1i.:l1;1, lJllt in Dollars hence the LLSe of the words " ... in Iraq at previous r:n.: ''. Tl1e foct that the plaintiffs signed a payroll in Iraq cannot in ourview be said to be a variation. The evidence on record not controverted explains the reasons for the preparation of two payrolls. Above all "70% of the total. .... " was not expressed in any rate. We find no variation in the contr~H.:t. We agree with the learned trial judge that the submissions by the advocate for the plaintiffs missed the point. In truth they misinterpreted the contract and misapprehended the facts. We cannot accept that a p;iyroll or any other mode of payment for that matter can vary an express term uf a contract of employment. There was no failure to remit 70% s::.1\my in foreign cu1Te11cy. There was no colltract of employment between the parties which provided for 70% salary to be remitted in Dollars. The contract talked of 70% of total Kwacha salary to be paid through Bank of Zambia. The mention of Bank of Zambia on its own, did not suggest foreign currency. The fact that monies were paid through Barclays Bank of Zambia Limited is common cause. The defendant explained the reason for that :.1ction to be one of convenience. The plaintiffs accepted the monies found in their individual accounts with Barclays Bank Limited. Their L:ornplaints arise because according to them the amounts were little. In our view the change in Banks did not vary the contract. What was irnpurt~rnt was that the defendant complied with the tenn of payment. The p:.1yroll relied upon was explained by a credible witness whose evidence the L:ourt accepted. The learned trial judge did not fully find the plaintiff credible on a number of material. We find no breach of contract by the defendant compauy. This appe~l based on this ground cannot therefore st1(.;ceed. It follows from our holding on the first argmnent that the arguments relating to underpziyment due to· wrong exchange rate fall away. As regards non payment of bonus and pension, incorrect computation of al lowant:<::s, the evidence on record was that the parties had reached a final settlement through which all the plaintiffs were paid their dues. In reaching this final settlement they were represented by a lawyer and an otlicial from the Minsitry of labour. We a6rree with the trial court that the p la i 111 i ffs were not entitled to any fu11her payment after the "final sett! ement ". The entire appeal fails and is dismissed. We also adopt the approach of the tria! court, that, given the nature of the case, a realistic approach is to make no order of costs. We, too, make no order as to costs. ........ tliL ........ . . CL ~.,kal,1, ,u .. ,.ll ''-; 1>£1'll'l'Y C IIIEF . JUSTICE. IVI ~ t 'k1i la, St l1•1u:'.1,1i~ COURT . JUDGE. D iYI L1.!vVa11ika, SU 1-1<.i:M£ COU RT . Jlll>GE.