Fedders Kanyemba v Armcor Security Ltd (Appeal 205 of 2008) [2013] ZMSC 48 (19 April 2013)

IN THE SUPREME COURT FOR ZAMB IA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 205/2008 BETWEEN: FEDDERS KANYEMBA APPELLANT AND ARMCOR SECURITY LTD RESPONDENT CORAM: MAMBILIMA, DCJ; WANK! AND MUYOVWE, JJS On 8 th February 2011 and 19th April 2013 For the Appellant: For the Respondent: In person Mr. E. B. MWANSA, of EBM Chambers MAMBILIMA, DCJ, delivered the judgment of the Court. JUDGMENT CASES REFERRED TO: 1. NKHATA AND OTHERS VS THE ATTORNEY-GENERAL (1966) ZR 124 (?) 2. GDC HAULIERS ZAMBIA LTD VS TRANS-CARRIERS LTD (2001) ZR 47 3. ATTORNEY-GNERAL VS ACHIUME (1988) ZR 1 LEGISLATION REFERRED TO: 1. INDUSTRIAL AND LABOUR RELATIONS ACT CAP 294 OF THE LAWS OF ZAMBIA This appeal is from the decision of the Industrial Relations Court (I. R. C.) which dismissed the Appellant's claim for terminal benefits and other moneys, against the Respondent. The evidence and documents on record show that the Appellant was employed by the Respondent on 13th October, 1997 as a constable. It would appear that he rose through the ranks up to the position of superintendent. Documents on record also show that during his tenure of office, the Appellant contributed to the National Pension Scheme Authority (NAPSA). On 1st July 2005, the Appellant wrote to the Respondent resigning his position. The Respondent replied inter alia, that: "Your resignation has been accepted and your last working day will be 28th July 2005. We would also like to remind you that it is company policy not to reinstate those who have left on their own accord. Note, as you have left without giving notice, two weeks pay will be deducted from you as pay in lieu of notice." Upon the Appellant's resignation, the Respondent prepared his terminal benefits. The computation of the said benefits is reflected on his last pay slip, a copy of which appears on page 32 of the Supplementary Record of Appeal. It shows that the Appellant worked for a total of 94 months; from 13th October 1997 up to 28th July 2005. He was credited with three days in August 2005, as well as 79 leave days. The formula for calculating his terminal pay was half a month's salary for each year served. The total dues came to Kl,487,457.00. It is on record that the Appellant rejected these monies and filed a complaint in the I. R. C. In his complaint, the Appellant framed the reliefs he was seeking in the following terms: "(i) Loan repayment which I did not obtain. (ii) NAPSA contribution not remitted for 15 months from years 2000 to May 2005, I was under paid. (iii) Terminal benefits from October 1997 (iv) Must produce my last pay slip for the last month I worked plus costs." In his evidence to the Court below, the Appellant testified that the Respondent deducted KS0,000.00 per month from his salary for eight months for a loan that he did not obtain. On his allegation that the Respondent failed to remit contributions to the National Pensions Authority (NAPSA), the Appellant testified that the default involved a period of 15 months. He further testified that for the seven years and nine months that he worked for the Respondent, he accumulated a total of 69 leave days. He went on to state that he was owed an amount in excess of K33 million for the years that he worked. Cross examined as to how he arrived at this figure, the Appellant stated:- ~ "The hourly value K66.52 I had to work out bank exclusive forum for 30 days. I multiplied 662.52 x 31 days which represents the forum we work x 12 hours per day." The Appellant told the Court that he was also claiming a sum of K972 million, equivalent to US $ 243,000. According to him, the amount was "29 months x 33 million." In rebuttal, the Respondent called its Deputy Human Resources Manager, Mr. Enock MWEWA (OW 1) to testify. DW 1 told the Court that the Appellant served for 94 months, which translated roughly to 7 years and 10 months. That the monthly ticket ran from the 26th day of the month, to the 25th day of the next month, at a pay rate of K619 per hour. That the Appellant was paid his last pay together with three days in August 2005. That the Appellant was also paid for 79 leave days. DW 1 further testified that a person separating from the Respondent was paid half monthly salary for each year served. Using this formula, the Appellant was entitled to terminal benefits amounting to Kl,487,457.00 but he rejected the money. On the claim that the Respondent did not remit contributions to NAPSA, DW 1 told the Court that the Respondent contributed Kl,802,023.00 from February 2000 up to July 2005. That the Appellant 1s entitled to claim the money from NAPSA upon satisfying the criteria for doing so. The computation of what is due to the Appellant from NAPSA is shown on the document appearing on page 4 7 of the record of appeal. The Court below, upon evaluation of the evidence that was before it, found that the Appellant resigned on his own with effect from 29th July 2005. The Court stated that it was " ••. satisfied with the manner in which the Respondent handled the case of the complainant and . that the Respondent did all that would be expected of a reasonable employer and within the laws .... " The Court urged the Appellant to take the benefits that he had rejected and to obtain the necessary documents from NAPSA for the processing of his benefits. The Appellant's case was consequently dismissed. The Court ordered that each party should bear its own costs. The Appellant, being dissatisfied with the determination of the I. R. C., filed an appeal to this Court. He filed a long Memorandum of Appeal which appears to restate his claims in the lower Court and contains his arguments. By and large, the contents of the Memorandum contend with findings of fact made by the lower Court. It is couched as follows:- "A. Loan repayment never solicited. B. C. 15 months NAPSA contribution not done between February 2009 and June 2005. Terminal benefits - July 2005, 25% housing allowance. Of basic, 68 leave days, 93 months service in the company at full basic not half basic as a member of Pensionable Board - NAPSA, Z. R. Z. - all at full rate of K668,52 per day of 12 hrs. D. Payslip for the period duty was rendered July 20005 not 3 days of August 2005. 1. The learned Judge was Glossly misled by assuming that papers 1, 2, 3 was done in good faith but there was no reasonable care in them and only disclosed false pretence and forgery. 2. The learned Judge was misdirected by computation nature of papers 1, 2, 3 that half package was absolute on retirement of an employee in that Respondent company which is not justified for a member of a Pensionable Board NAPSA, ZRA. 3. Reverse the word 'Reject' in reference to the action done by Messrs Mambwe, Siwila and Partners - 3l•t August 2006. This was a false pretence to settle in court the sum of K276,600. Before the date of hearing the case was granted by the I. R. C. Lusaka. 4. The learned Judge was misdirected by papers 1, 2, 3 as to which time duty was done. I worked from 26th June to 28th July 2005 bearing 33 days and not 3 days of August 2005 with rates of KSS.71 P/H and K668.52 P/D. In reference to this evidence settlement was forgery in compilation, computation and conclusion. 5. The learned Judge was mislead by paper 1, 2, 3 in reference to petition 15 months NAPSA not lodged, Loan repayment not solicited. contributed - February 2000 to June 2005 July inclusive, terminal pay at usual rates and payslip for actual month duty performent. All this was not taken into account by respondent. 6. In passing her judgment the learned Judge ordered the respondent to pay in reference to paper 1, 2, 3 this order was not followed by respondent - he paid me Kl,129,768.85 which their advocate has to make Kl,130,000.00 contrary to Kl,487,457.00 and to NAPSA Board in reference to paper 3 I was ordered that there is no more money for me to get on this I hold the respondent liable in all spheres of this petition in full lump sum settlement without interest but worked out with time as from the date of defect July 2005 to 9 th September 2008 when judgment was sanctioned as follows:- Loan repayment at KS0,000 x 8 months paid = K400,000.00 = 15 months NAPSA x 43,908.70 per month K658,630.00 = 33 days basic x K668.52 x 12 per hours K264, 733.92 = K6,6 l 8,348.00 25% house of all basic x K264,733.92 68 leave days x K668.52 x 12 hrs = K545,512.32 93 months service x K668.52 x 30 days = Kl,865,170.80 Total amount July 2005 = Kl0,352,395.04 Less amount in default settlement = Kl, 130,000.00 = K9 ,222,395.04 Balance standing July 2005 Worked out by 39 months default = K359,673,406.60 To USD worked out K4000 to USD = USO 89,918,35164 = USO 89,918.40 Total lump sum USO to whole figure 7. SETTLEMT: Presentation for discharge. As desired physical USO currency notes above its value; secondly, postal under my name and crossed to be presented into court as an appointed place of presentation and discharge No partial, severing of asset or cheque will be accepted, presentation for discharge has to be within a very reasonable time. Costs to be fixed by the court." In his oral submissions before us, the Appellant stated that he was employed by the Respondent and upon retirement, he was not paid his benefits. He referred to the document on page 31 of the Supplementary Record of Appeal. The document shows his pay details for August 2005. It shows details of the money that the Appellant was entitled to in the month. The basic pay, housing allowance, 79 leave days, contributions to NAPSA up to that date, and, the deductions that were made from the gross sum are all reflected. The Respondent filed written heads of argument. The learned Counsel for the Respondent pointed out that the Memorandum of Appeal filed by the Appellant is defective and invalid at law, in that it does not show or disclose any point of law or a mixed point of law and fact contrary to Section 97 of THE INDUSTRIAL LABOUR RELATIONS ACT1 . The learned Counsel for the Appellant further argued that the judgment of the Court below is based on findings of fact. That the Court below believed the evidence of DW 1. He referred us to our decisions in the cases of NKHA TA & OTHERS VS THE ATTORNEY-GENERAL1 and GDC HAULIERS ZAMBIA LIMITED VS TRANS-CARRIERS LIMITED2 and submitted that the two decisions support the judgment of the lower Court. We have considered the judgment of the Court below and the arguments of the parties before us. We are mindful that the Appellant is a prose litigant. This could explain his long winded Memorandum of Appeal from which grounds of appeal are difficult to ascertain. ,,. We have carefully considered the judgment of the lower Court. On the evidence and documents that was before it, the Court made findings of fact that: 1) The Appellant resigned on his own and his resignation was accepted by the Respondent; 2) The Respondent properly handled the Appellant's case and did all that was expected of a reasonable employer within the law. This being an appeal from the I. R. C. , it is caught by the provisions of Section 97 of THE INDUSTRIAL AND LABOUR RELATIONS ACT1 which states: "97. Any person aggrieved by an award, declaration, decision or judgment of the Court may appeal to the Supreme Court on any point of law or any point of mixed law and fact." We have perused through the Memorandum of Appeal. There are no points of law or points of mixed law and fact that have been raised. The whole appeal contends with findings of fact made by the Court below. Clearly, therefore, this appeal is incompetent and strictly speaking, we have no jurisdiction to deal with it. It is our view, however, that even if we had jurisdiction, the outcome of the appeal would have been fatal, on account that it is against findings of fact. The Court below had before it the evidence of DW 1 which clearly explained how the quantum of the monies due to the Appellant was arrived at. Document 32, in the Supplementary Records of Appeal, which is the Appellant's last pay slip, shows that the Appellant was paid for:- (a) 3 clays in August (b) 79 leave days (c) Half monthly salary for each year served covering a period of 94 months from 13th October 1997, to 28th July 2005. Document 4 7 in the main record of appeal shows that contributions were made to NAPSA on the Appellant's behalf by the Respondent. The Appellant's evidence on the other hand was disjointed. He was unable to explain how he arrived at the amount owing. He was also not able to prove that he was not paid for leave days or indeed that there were any deductions in respect of a loan that he did not obtain. His allegations that the Respondent did not pay the employer's contribution to NAPSA flew in the teeth of documentary evidence before the Court. We have stated, in a plethora of authorities that this Court will not easily overturn findings of fact by a trial Court which had the liberty to hear and ascertain the demeanor of the witnesses. The Respondent has cited two cases to support this contention. The first one is the case of NKHATA & OTHERS VS THE ATTORNEY~ GENERAL. The citation for the case that was given by the learned Counsel for the Respondent is (1966) ZR 124. We have visited this Volume of Zambia Law Reports. The case is not reported therein. The other case is that of GDC HAULIERS VS TRANS-CARRIERS2 • This Court held in that case that findings of credibility are not to be interfered with by an appellate court which did not see and hear the witnesses at first hand. In the case of ATTORNEY-GENERAL VS ACHIUME3 we held that findings of fact by a trial Court could only be overturned if it was. shown that the findings were perverse, or not supported by the evidence on record, or made on a misapprehension of the facts. In this case, the findings of fact made by the lower Court were amply supported by the evidence that was before it. On account of this, the appeal could not have succeeded in the event that we had jurisdiction to deal with it. The appeal therefore stands dismissed. We will not make an order as to costs. o~,--~~-5...,,,____ _.c:=:c_ - LC. Mambilima DEPUTY CHIEF JUSTICE ' cfJ!!.°'-6 . 'Afjanki REME COURT JUDGE M . E. C. Muyovwe SUPREME COURT JUDGE 12