Jairos Sinyangwe v Twiza Corporative (2024/SID/33) [2024] ZMSUB 13 (6 August 2024)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2024/SID/33 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN REPUBLIC OF ZAMBIA THE JUDICIARY 0 6 AUG 2:2', 1~ -- MAGISTRATE CLASS l \_\i I P. O. BOX 420101, M3.\ :...1' i JAIROUS SINYANGWE PLAINTIFF AND TWIZA CORPORATIVE DEFENDANT Before: Hon’ble Deeleslie Mondoka For the Plaintiff For the Defendant : : In person In person JUDGMENT CASES REFERRED TO: i. ii. iii. iv. v. IMBWAE V. IMBWAE, SCZJ NO. 12 OF 2003; ROBERT SIMEZA AND 3 OTHERS V ELIZABETH MZYECE- S. C. Z JUDGMENT NO. 23 OF 2011; CHIBUYE AND OTHERS VS THE PEOPLE, SCJZ NO. 33 OF 2010; KHALID MOHAMED V. ATTORNEY-GENERAL (1982) ZR 49; WILSON MASAUSO ZULU V. AVONDALE HOUSING PROJECT LIMITED (1982) ZR 172; J1 vi. GALAUNIA FARMS LIMITED V. NATIONAL MILLING COMPANY LIMITED vii. viii. ix. x. xi. AND ANOTHER (2004) ZR 1; CUTTER V POWELL [1875] 6 TERM. REP 320; ZAMBIA NATIONAL BUILDING SOCIETY V ERNEST MUKWAMATABA NAYUNDA (S. C. Z. JUDGMENT 11 OF 1993) [1993) ZMSC 25 (19 AUGUST 1993); P. C CHEELO AND OTHERS V. ZAMBIA CONSOLIDATED COPPER MINES LIMITED SCZ NO. 27 OF 1999; COSMAS MUKUKA V. JASON MWANZA SCZ SELECTED JUDGMENT NO. 13 OF 2019; CAVMONT BANK V. JOHN MWANSA KALINDE & 40 OTHERS APPEAL NO. 309 OF 2021; xii. COLGATE PALMOLIVE (ZAMBIA) INC APPELLANT AND ABLE SHEMU xiii. xiv. xv. CHUKA AND 110 OTHERS SCZ APPEAL NO. 181 OF 2005; KUNDA V. KONKOLA COPPER MINES PLC (APP NO. 48 OF 2005); KUNDA V THE ATTORNEY GENERAL (1993-1994) ZR 1; CHRISTABEL NGIMBU V PRISCA CHISENGO KUCHEKA AND ELECTORAL COMMISSION OF ZAMBIA CCZ SELECTED JUDGMENT NO. 2 OF 2018; xvi. OF MAZOKA AND TWO OTHERS V MWANAWASA AND TWO OTHERS (2005) Z. R. 138; xvii. MAIDEN PUBLISHING HOUSE & STATIONARY LIMITED AND OTHERS V. INDO ZAMBIA BANK LIMITED [UNREPORTED] SCZ 8 NO. 266 OF 2013; xviii. CAVMONT BANK V. JOHN MWANSA KALINDE & 40 OTHERS APPEAL NO. 309 OF 2021 CAA; xix. FINANCE BANK ZAMBIA LIMITED AND MAHTANI V. SIMATAA SIMATAA, SCZ SELECTED JUDGMENT NO. 21 OF 2017; xx. JOSEPH MULENGA V. THE PEOPLE SCZ APPEAL NO. 128 OF 2017; xxi. UGANDA REVENUE AUTHORITY VS STEPHEN MABOSI NO. SCCA NO. 26 OF 1995; J2 xxii. M’MEMBE AND POST NEWSPAPERS LTD (IN LIQUIDATION) V MBOOZI AND OTHERS APPEAL 7 OF 2021) [2022] ZMSC 4; xxiii. BROWNE V DUNN (1893) 6 R 67; xxiv. R V JAE [2021] QCA 287, AND xxv. NATIONAL DRUG COMPANY LIMITED AND ZAMBIA PRIVATIZATION AGENCY V MARY KATONGO APPEAL NO. 79 OF 2001 STATUTE i. THE SUBORDINATE COURT ACT RULES, CHAPTER 28 OF THE LAWS OF ZAMBIA. OTHER MATERIALS REFERRED TO: i. ii. iii. iv. v. PHIPSON ON EVIDENCE, 14TH EDITION (1990 LONDON, SWEET & MAXWELL); G. MONAHAN ON ESSENTIAL CONTRACT LAW, 2ND EDITION, CAVINDESH PUBLISHING (AUSTRALIA) PTY LIMITED 2001; CHITTY ON CONTRACTS, VOLUME 1 (GENERAL PRINCIPLES) 26TH EDITION, SWEET & MAXWELL, LONDON (1999) BY BEALE H G; LAW OF CONTRACT, 7TH EDITION BY P. RICHARDS, PEARSON LONGMAN, 2006; AND GAMER, BRYAN A AND HENRY CAMPBELL BLACK. BLACK’S LAW DICTIONARY. (2004) 8TH EDITION, ST. PAUL MN, THOMSON/ WEST. INTRODUCTION [1] This Judgement emanates from a claim wherein the plaintiff claims for: (i) damages for breach of contract: after the defendant’s corporative where he was also a member engaged to work in a banana plantation in September, 2020 and eventually terminated his contract in May, 2021 and that the defendant has since not paid the same hitherto for a stint J3 of 1 year and 8 months; (ii) Any other relief that the Court may deem fit to award, and (iii) an order for all incidental costs. BACKGROUND FACTS [2] With that said, hereafter is a recapitulation of the facts in support of the claim. [3] From the outset it is worth noting that—the present matter was commenced on the first day of October, 2023. Throughout the pendency of the instant proceedings, the parties have, after a fashion— actively engaged in a protracted and iterative process of negotiation and discussion, in a bona fide endeavour to resolve the underlying dispute through consensual means, thereby occasioning a delay in the advancement of the matter through the judicial process, as the parties have been exploring alternative dispute resolution mechanisms and attempting to reach a mutually acceptable settlement, resulting in a temporary stasis in the court proceedings. [4] Alas and alack—all sedulous endeavours to resolve the dispute through alternative dispute resolution mechanisms and extrajudicial negotiations, were no good, as all attempts at an ex curia settlement have hitherto been thwarted by the defendant's obdurate failure to follow through on tentative concessions made between the parties, thereby compelling the plaintiff to seek redress through the instant judicial proceedings. [5] Regrettably, the matter was only able to proceed to trial on the 27th day of June, 2024, after a protracted period of delay. At the trial, the plaintiff took oath as the first witness herein referred to as (PW1) and testified, giving evidence as set forth hereinbelow. [6] PW1 deponed that, he was in the employ of the defendant from the year 2020, pursuant to an oral contractual arrangement. PW1’s J4 testimonial evidence disclosed that a consensual agreement existed between the parties, whereby the defendant contracted to pay PW1 a monthly stipend of K700.00 in consideration for services rendered in respect of tending to the banana plants situated on the cooperative’s plantation. [7] PW1 further testified that the aforementioned remuneration was expressly negotiated and agreed upon by the secretary and chairperson of the cooperative (defendant), thereby constituting a binding and enforceable agreement between the parties. PW1 has since been paid twice from the time he started working for the defendant at K700.00 for 2 months bringing the total payment to K1, 400.00 all told. [8] Whilst PW1's salary remained unpaid, he was constrained to solicit financial accommodations from third parties, with the express understanding that the defendant would subsequently reimburse the same. Furthermore, PW1's financial predicament necessitated that he solicits a loan from the defendant, which loan he was unable to repay due to the accrual of, to coin a phrase, “usurious interest” thereon. PW1's claim was that the defendant was liable to him to the tune of K14, 000.00, being the aggregate sum of remuneration due to PW1 for a 1 year and 8 months stint during which he rendered services without compensation. Consequently, PW1 herein sought judicial relief. [9] It was PW1’s testimony that, the parties attempted to negotiate a compromised arrangement, whereby the defendant would condescend to a payment concession of K2, 600.00 plus K800.00, in full and final discharge of the debt owed to PW1. However, the defendant has failed to accord with its obligations under the agreement, notwithstanding the passage of time. J5 [10] PW1 deponed that the settlement agreement was expressly conditioned upon the defendant's payment of the stipulated sum of K2,600.00 plus K800.00, and that failure to do so would entitle PW1 to demand payment of the entire amount of K14,000.00. The defendant's breach of the settlement agreement has necessitated PW1's institution of the present legal proceedings. [11] During the cross-examination phase of the proceedings, it was conclusively demonstrated that the defendant cooperative had neglected to make any payment whatsoever to PW1. Additionally, it was disclosed that the earlier payment of K1,400.00 effected by the defendant was instigated by the secretary and subsequently ratified by the chairperson. No further testimony or evidence was presented during the re-examination phase, thereby concluding the evidentiary portion of the proceedings. [12] The plaintiff called his witness one, GABRIEL SICHILIMA, PW2 herein, a tricenarian of CHINENKE village, whose testimony was of a few chosen words as hereunder. [13] The testimony of PW2, the second witness for the plaintiff, conclusively established that PW1 was an employee of the defendant, and that despite the lapse of time, the defendant had neglected to pay PW1's wages for the substantial part of his tenure. PW2’s evidence served to substantiate PW1’s assertion of unpaid remuneration, thereby reinforcing the claim for compensation. [14] Nothing was advanced in cross-examination and re-examination. And that marked the close of the plaintiff’s case. THE DEFENDANT’S CASE [15] Notwithstanding the opportunity afforded to the defendant to present its defence and adduce evidence—the defendant failed to crawl out of J6 the woodwork; electing rather to wilfully absent itself from the proceedings at the material time, thereby forsaking its right to be heard. This egregious omission and blatant disregard for the judicial process will be duly considered and addressed anon. [16] Thusly—the defendant’s potential claim and or contention to the effect that—there was ‘an unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered’, or that there was a glaring misdirection no the part of the trial Court is ipso facto negated. UNDISPUTED FACTS [17] Upon a meticulous examination of the evidence adduced, I hereby find and declare the following facts to be incontrovertible and thus established as common cause: (i) PW1 was a duly registered and active member of the TWIZA Cooperative; (ii) the defendant was, and remains, indebted to PW1 in the sum of K14, 000.00, being the aggregate amount of unpaid salaries accrued over a period of 1 year and 8 months; (iii) PW1 was gainfully employed by the defendant at a monthly stipend of K700.00; and (iv) the defendant has, notwithstanding the passage of time, paid a nominal sum of K1,400.00 to PW1, thereby leaving a significant balance outstanding and unpaid. WHAT IS THE LAW ON AN ABSENTEE DEFENDANT, OR DEFENDANT WHO ELECTS TO ABSENT HIMSELF FROM ATTENDING A HEARING? [18] It is trite law that where a party does not appear for a hearing, in the absence of sufficient reason justifying their non-appearance, a Court may proceed to hear the matter and give Judgment on the basis of the evidence adduced by the Plaintiff. This is as provided by Order XXXI, J7 Rule 4 of The Subordinate Court Act Rules, Chapter 28 of the Laws of Zambia, which is couched as follows: - … “If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons, proceed to hear the cause or matter and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the same and direct notice of such postponement to be given to the defendant.” [emphasis supplied] [19] Consequently, this Court closed the case. My decision to close the matter herein is further fortified by the case of Imbwae v. Imbwae, SCZJ No. 12 of 2003, where we said: “There is no procedural injustice occasioned when a court proceeds, where there has been inaction on the part of a party despite being aware of proceedings.” [emphasis supplied] [20] The foregoing sentiment was echoed in re Robert Simeza and 3 others v Elizabeth Mzyece- S. C. Z Judgment No. 23 of 2011, where the Supreme Court stated that: - “There is no procedural injustice occasioned when a party who is aware of proceedings does not turn up.” [emphasis mine] [21] In re Chibuye and Others Vs The People, SCZ No. 33 of 2010, which was a criminal matter the Supreme Court said: “It is for an accused person to avail himself in court when called upon and let due process of law take its course. An accused should not be allowed to dictate whether or not to be tried or unreasonably hold the court to ransom. Procedural rights must be invoked.” [emphasis mine] J8 [22] I am further fortified by the case of Mukula & Highway Transport Limited vs Chiwala & Another, Appeal No. 163 of 2012, where the Supreme Court of Zambia stated that- “Therefore, by ordering the closure of the case and then proceeding to Judgment delivery, the learned trial Judge acted perfectly within his discretionary power.” [emphasis supplied] [23] The tenor of the Supreme Court’s judgments is in essence that– ‘you cannot force a litigant who does not want to litigate to litigate1’. ISSUES FOR DETERMINATION [24] The following quintessential legal issues necessitate adjudication: (i) whether a legally binding contract of employment was forged between PW1 and the defendant, thereby creating a contractual obligation between the parties; (ii) if yes, does the contract fall within the unique purview of the Industrial Relations Division of the High Court for Zambia; (iii) whether the defendant is liable to PW1 in the sum of K14,000.00, representing remuneration for services performed during the stipulated period of 1 year and 8 months; and (iv) whether the plaintiff is entitled to the panoply of reliefs sought, including but not limited to, payment of the outstanding amount, compensatory damages, and costs, as prayed for in the instant action. DOES THE ABSENCE OF THE DEFENDANT AT TRIAL ENTITLE THE PLAINTIFF (PW1) A JUDGMENT IN HIS FAVOUR? [25] It is axiomatic that, in order to secure a favourable judgment, the plaintiff bears the onus of establishing his case against the defendant on a balance of probabilities. A plethora of judicial authorities unequivocally establishes that the mere failure of the defendant's case does not ipso facto entitle the plaintiff to judgment, absent proof of his 1 Robert Simeza and 3 Others V Elizabeth Mzyece- S. C. Z Judgment No. 23 Of 2011 J9 claim against the defendant. This principle is succinctly encapsulated in the seminal decisions of Khalid Mohamed v. Attorney-General (1982) ZR 49; Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 172, and Galaunia Farms Limited v. National Milling Company Limited and Another (2004) ZR 1. [26] In re Khalid Mohamed v. Attorney-General (1982) ZR 49, in a judgment by Ngulube, D. C. J, as he then was, the Supreme Court said: “An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent’s defence does not entitle him to judgment. I would not accept a proposition that even if a plaintiffs case has collapsed of its inanition or for some reason or other judgment should nevertheless be given to him on the ground that a defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need a defence.” [emphasis supplied] [27] Again, in Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 172, in a judgment by Ngulube, D. C. J, as he still then was, it was held inter alia: “Mr Phiri’s general approach has been to allege that the respondent had not adduced evidence in support of the allegations in the dismissal letter. I have found that the respondent did in fact adduce such evidence. In the process, however, I have also pointed out the deficiencies in the appellants own evidence. It appears that the appellant is of the view that the burden of proof lay upon the respondent and it is on this that I would like to say a word. I think that it is accepted that where a plaintiff alleges that he has been wrongfully or J10 unfairly dismissed, as indeed in any other case where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent’s case.” [emphasis mine] [28] And lastly, in re Galaunia Farms Limited v. National Milling Company Limited and Another (2004) ZR 1, the holding states: “A plaintiff must prove his case and if he fails to do so, the mere failure of the opponent’s defence does not entitle him to judgment.” [emphasis supplied] [29] The editors of Phipson on evidence, 14th edition (1990 London, Sweet & Maxwell) provide: “In civil cases the evidential burden may be satisfied by any species of evidence sufficient to raise a prima facie case” (underlined for emphasis) [30] Notwithstanding the defendant's absence, albeit conspicuous, does not to itself relieve PW1 of the burden of proving his case, nor does it entitle and assure PW1 a favourable judgment. The onus probandi, or burden of proof, remains squarely on PW1, who must establish his claim against the defendant through competent evidence. [31] To iterate, the defendant's failure to appear or present a defence does not operate to shift the burden of proof or entitle the plaintiff to a judgment by default. Rather, PW1 must affirmatively demonstrate his entitlement to relief, and satisfy the court that his claim is substantiated by a preponderance of the evidence. J11 ANALYSIS OF THE LAW & FACTS WAS THERE A LEGALLY BINDING CONTRACT OF EMPLOYMENT FORGED BETWEEN PW1 AND THE DEFENDANT, THEREBY CREATING A CONTRACTUAL OBLIGATION BETWEEN THE PARTIES [32] Firstly, it is crucial from the outset to define what a contract is? Well. According to the Learned Author of Essential Contract Law, a contract is defined as: “An agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties. A legally binding agreement made between two or more persons by which rights are acquired by one or more to acts or forbearances on the part of the other or other.” (Emphasis supplied) [33] Further, the according to the Learned Author of Essential Contract Law2 at page 27 that: “A valid contract is a contract that the law will enforce and creates legal rights and obligations. A contract valid ab initio (from the beginning) contains all the three essential elements of formation: Agreement (offer and acceptance). Intention (to be bound by the agreement). Consideration (for example, the promise to pay for goods or services received”. (Emphasis supplied) [34] Secondly, what issues are of concern relating to performance of a contract? To help unpack this notion, I shall consider the Learned 2 G. Monahan On Essential Contract Law, 2nd Edition, Cavindesh Publishing (Australia) Pty Limited J12 Authors of Chitty on Contracts3 who stated the general rule relating to the performance of a binding contract at paragraph 22-001 as follows: “The general rule is that a party to a contract must perform exactly what he undertook to do. When an issue arises as to whether performance is sufficient, the Court must construe the contract in order to ascertain the nature of the obligation (which is a question of law); the next question is to see whether the actual performance measures up to that obligation (which is a question of ‘mixed fact and law in that the Court decides whether the facts of the actual performance satisfy the standard prescribed by the contractual provisions defining the obligation”. (Emphasis supplied) [35] In re Cutter v Powell [1875] 6 Term. Rep 320, the court stated as follows: “Parties must perform precisely all the terms of the contract in order to discharge their obligations ... A breach of contract occurs if a party to a contract fails to comply with his obligations under it or performs his obligations in a defective manner ... In other words, the law will not regard a person to have discharged the contract unless he has completely and precisely performed the exact thing that he agreed to do under the contract.” [emphasis added] [36] To boot––the Learned Author of Law of Contract4, P. Richards on the effect of non-performance of a binding contract who states at page 113 a s follows: “Where a person fails to perform their side of the contract then subject to the mitigating factors, they will be in breach of 3 Chitty on Contracts, Volume 1 (General Principles) 26th Edition, Sweet & Maxwell, London (1999) By Beale H G 4 Law of Contract, 7th Edition by P. Richards, Pearson Longman, 2006 J13 contract. A breach of contract will always give rise to a claim in damages, no matter how minor or serious the nature of the breach. Whether an innocent party is entitled to treat the contract as at an end, so that they can treat the contract as discharged, depends on whether the breach is so serious that it goes to the root of the contract, that is there is a breach of a primary obligation”. (Emphasis mine) [37] From the hereinbefore, it is apparent that PW1 and Defendant in their dealings had what is in essence styled––a contract. More to the point, is not in dispute that the defendant employed PW1 to work and husband the plantation of bananas at a consideration of K700.00 per calendar month. Alas, the defendant did not satisfactorily undertake to perform the contract, thus, being in breach of the same. Owing to the foregoing, PW1 is thus entitled to damages. [38] The Supreme Court in Zambia National Building Society v. Ernest Mukwamataba Nayunda (S. C. Z. Judgment 11 of 1993) [1993) ZMSC 25 (19 August 1993), in which the court stated as follows: “... The essence of damages has always been that the injured party should be put, as far as monetary compensation can go, in about the same position he would have been had he not been injured. He should not be in a prejudiced position nor be unjustly enriched.” [emphasis mine] DOES THE CONTRACT FALL WITHIN THE UNIQUE PURVIEW OF THE INDUSTRIAL RELATIONS DIVISION OF THE HIGH COURT FOR ZAMBIA? [39] Having established that there existed a contract between PW1 and the defendant and that the contract between the parties in question was an employment contract. The gist of the hereinafter issues is whether J14 or not the plaintiff’s claim falls within the unique purview of and or qualifies as an industrial relations matter. [40] Article 133 Clause 2 of the Constitution of Zambia provides that: “There are established as divisions of the High Court the Industrial Relations Court, Commercial Court, Family Court and Children’s Court.” [emphasis mine] [41] Further, Section 85 (1) of the Industrial and Labour Relations Act,2 which provides as follows: “The court shall have original and exclusive jurisdiction to hear and determine any industrial relations matter and any proceedings under this Act.” [emphasis supplied] [42] Notwithstanding, it is not all industrial relations matters that are exclusively reserved for hearing and determination by the Industrial Relations Division of the High Court. In the case of P. C Cheelo and Others v. Zambia Consolidated Copper Mines Limited SCZ No. 27 of 1999, the Supreme Court held inter alia as follows: “In the instant case the appellants are no longer employees of the respondent and their claim is for benefits due to them under The Redundancy Agreement. To give the expression “Industrial Relations Matters” a wide interpretation so as to encompass cases of breach of contract wrongful dismissal or claims of the nature before us which could be tried by a Local Court or Subordinate Court would lead to absurdity...” [underlined for emphasis] [43] The position in the P. C Cheelo case was re-affirmed in the Cosmas Mukuka v. Jason Mwanza SCZ Selected Judgment No. 13 of 2019, where the Supreme Court held that: “We are alive to the fact that in the case of PC Cheelo and others v. Zambia Consolidated Copper Mines Limited, we held J15 that the term industrial relations matters did not have such wide interpretation so as to encompass cases of the breach of contract, wrongful dismissal or even monetary claims for unpaid salaries or redundancy benefits which could be tried by the Subordinate Court, provided the amount did not exceed that court’s jurisdiction. For that reason, we held also that the High Court has jurisdiction to try cases arising out of pure master and servant relationships. Indeed, that should be so because in the case of wrongful dismissal, the issues to be determined fall purely under the law of contract even though the dispute may itself arise in an industrial relations setting.” [emphasis supplied] [44] The import of the cases mentioned above is that the industrial relations division has exclusive jurisdiction in purely industrial relation matters. [45] What is meant by the term industrial relations? According to Black’s Law Dictionary5, 8th Edition at page 791: “The term industrial relation(s) refers to all dealings and relationships between an employer and its employees including collective bargaining about issues such as safety and benefits.” [emphasis supplied] [46] Further, in re Cavmont Bank v. John Mwansa Kalinde & 40 others Appeal No. 309 of 2021, the Court of Appeal asserted as hereunder: “Industrial relations refer to all types of relations between employers and workers be they at national, regional or company level; and to all dealings with social and economic issues, such 5 Gamer, Bryan A and Henry Campbell Black. Black’s Law Dictionary. (2004) 8th Edition, St. Paul Mn, Thomson/ West J16 as wage setting, working time and working conditions6.” [emphasis added] [47] I am aware that the term ‘industrial relations’ has been variously defined. Nevertheless, I am well guided by the Supreme Court of Zambia in the case of PC Cheelo and Others v. Zambia Consolidated Copper Mines Limited supra that: “The term industrial relations matter(s) does not have such wide interpretation as to encompass cases of breach of contract or monetary claims for unpaid salaries or redundancy benefits...” [emphasis mine] [48] Going by the authorities herein, I am persuaded that this case can be competently dealt with in the Subordinate Court7, as PW1’s case against the defendant is tantamount to a claim for payment of a debt. DETERMINATION [49] Upon diligent consideration and careful application of my judicial mind to the facts and law presented herein, I am convinced that the instant case falls squarely within the purview of contract law, and is thus governed by the principles and jurisprudence pertaining thereto. [50] It is a foregone conclusion that PW1 did, in fact, enter into a contractual agreement with the corporative8 (defendant) in the year 2020, whereby 6 Cavmont Bank v. John Mwansa Kalinde & 40 Others Appeal No. 309 Of 2021 CAA 7 Halsbury's Laws of England Volume 10 at paragraph 715 put it this way: By “jurisdiction” is [sic] meant the authority which a court has to decide matters that are litigated before it ... [emphasis mine] 8 The Supreme Court in re Zambia State Insurance Corporation Limited v. Zambia Bottlers Limited Pension Scheme and 4 Others Appeal No. 181 of 2009 sympathized with Chitty and Jacobs, Queen’s Bench Forms, 21st Edition, where the authors stated that: - … “Nevertheless, there are several kinds of unincorporated bodies, consisting of two or more persons bound together for one or more common purposes, which may be regarded as having separate legal entity and a juridical personality sufficient to enable them to sue or to be sued in their own name or through the medium of trustees who hold their property in trust for them. Thus, a trade union is not and may not be treated as if it were a body corporate J17 PW1 was engaged as an employee to tend to the banana plantation, in consideration of which PW1 was to receive a monthly remuneration of K700.00. This contractual relationship, thus established, constitutes the foundation of the plaintiff's claim, and shall be deemed a binding and enforceable agreement between the parties. [51] Notwithstanding, PW1 has hitherto been unremunerated for the work done for the 1 year 8 months stint. Interestingly, the defendant herein has not disputed its indebtedness. [52] In re Colgate Palmolive (Zambia) Inc Appellant and Able Shemu Chuka and 110 Others SCZ Appeal NO. 181 of 2005; the Supreme Court sympathised with the legal case of Printing and Numerical Registering Company v. Simpson (1875) LR19 EQ 462, wherein Sir George Jessel observed as follows: … “If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice”. (Emphasis mine) [53] And yet, public policy itself does in some instances restrict freedom of contract for the public good. Notwithstanding, the parties to a contract have the opportunity to determine an outcome satisfactory to all. Little wonder, therefore, that the policy of the law is to uphold and enforce agreements if they are fairly made and are not in contravention of some law or other overriding public policy9. but is nevertheless capable of suing and being sued in its own name for any cause of action whatsoever. Similarly, an employers’ association may be a body corporate or alternatively an unincorporated association and, in such case, it is capable of suing and being sued in its own name for any cause of action whatsoever.” [emphasis supplied] 9 Finance Bank Zambia Limited and Mahtani v. Simataa Simataa, Scz Selected Judgment No. 21 Of J18 [54] As hereinbefore established, the fundamentals of contract law dictate that––a violation of an agreement, being a breach of contract, entitles a party who believes that he or she has been harmed by such breach to bring an action for damages for the harm he or she allegedly suffered from the breach. It is important to recollect the principle of the law that where there is a right, there is a remedy. In words of one syllable–a right would be of little value if there was no remedy available in the event of its infringement. A breach of contract by one party necessarily entails an infringement of a contractual right of the other party. A remedy is given as a means of vindicating the right, or as pecuniary compensation in lieu of performance10. (Emphasis supplied) [55] I will go out on a limb here and assert that––there must be strong reasons before a party is allowed to resile from an agreement freely reached. This is so whether the agreement could have been better or differently drafted or more fairly balanced between the parties. [56] It is palpable that PW1 and the defendant are equally bound by the terms of agreements and that the same should not be ignored or breached merely because one party regrets the agreement he had reached, as that would be unfair and prejudicial to the other party and would undermine the sanctity of agreements, and more generally the public policy which encourages contractual relations. Both at law and in practice––It is not uncommon that one side or the other, and sometimes both, regret an agreement after it has been arrived at and concluded but such hindsight does not afford grounds for resiling from the agreement11. [57] To provide additional contextual background, the contractual agreement executed between PW1 and the defendant constituted a 10 Ibid 11 Finance Bank Zambia Limited And Mahtani v. Simataa Simataa, Scz Selected Judgment No. 21 Of J19 contract of employment, whereby PW1 was engaged to perform the duties of a plantation worker, specifically tasked with the cultivation and maintenance of the banana plantation. PW1 faithfully discharged his obligation under the contract for a protracted period exceeding 1 year and 8 months. Notwithstanding PW1’s satisfactory performance of his duties, the defendant has, to date, failed to remunerate PW1 for the services rendered during the aforementioned period. [58] It is trite law that a mere allegation will not to itself warrant a favourable outcome, seeing as the plaintiff ought to prove his case. In re Kunda v. Konkola Copper Mines Plc (APP NO. 48 OF 2005), the Supreme Court guided on who bears the burden of proof in a civil matter when it said: “He who alleges must prove that allegation. This principle is so elementary, the court has had on a number of occasions to remind litigants that it is their duty to prove their allegation, of course it is a principle of law that he who alleges must prove the allegations”. (Emphasis supplied) [59] And in re Kunda v. The Attorney General (1993-1994) ZR 1, it was held inter alia that: … “failure by the plaintiff to adduce evidence to quantify the net loss must react against her. The Supreme Court has frequently lamented these failures by the plaintiff, and the practice of expecting courts to make inspired guesses must be discouraged”. (Emphasis mine) [60] Further, in the case of Christabel Ngimbu v. Prisca Chisengo Kucheka And Electoral Commission of Zambia CCZ Selected Judgment No. 2 of 2018 28, the Constitutional Court cited with approval the Supreme Court decision in the case of Mazoka and Two Others v. Mwanawasa And Two Others (2005) Z. R. 138 wherein it is stated that: Where a plaintiff .... makes any allegation, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be J20 entitled to judgment, whatever may be said of the opponent's case. (Emphasis mine) [61] Following from the forgoing––PW1 and PW2’s uncontroverted12 testimony is just the ticket meet to help PW1 establish his claim against the defendant herein. In re Maiden Publishing House & Stationary Limited and Others v. Indo Zambia Bank Limited [unreported] SCZ 8 No. 266 of 2013, the Supreme Court guided that: “oral evidence may sometime traverse issues of disputed fact. In such cases, the veracity of such evidence needs to be tested.” [emphasis supplied] [62] To wit––it is settled law that the presentation of evidence during any legal proceedings can be either oral or written. In the case of New Plast Industries v. The Commissioner of Lands and The Attorney-General (2001) Z. R. 51, the Supreme Court put it exquisitely when it asserted that: … “The content of what amounts to the hearing of the parties in any proceedings can take either the form of oral or written evidence. Where the evidence in support of an application is by way of affidavit, the deponent cannot be heard to say that he was denied the right of a hearing simply because he had not adduced oral evidence.” [emphasis supplied] [63] Just as well, when tested through the vehicle of cross-examination, the evidence of PW1 was unassailable by the defendant. The defendant failed to impugn the fact that––the defendant owes the same a sum of 12 In re ATTORNEY-GENERAL v KATWISHI KAPANDULA (1988 - 1989) Z. R. 69 (S. C.) the Supreme Court asserted that: … “However, as there can be no other evidence to support this part of the claim except an estimate of the value, the learned trial Judge was entitled to rely on the unchallenged evidence of the plaintiff if it was accepted that he was telling the truth. In the event, that is precisely what the learned trial Judge's did and there was no impropriety for which the learned trial Judge's judgment in this respect should be set aside.” [emphasis mine] J21 K14, 000.00, being the sum of the unpaid wages for the 1 year and 8 months stint. This can be gleaned from the version of the fact as deponed by PW1, whose testimony was unchallenged during cross- examination13. [64] The testimonial evidence adduced by PW1 remained unimpeached and not impugned, notwithstanding the defendant's endeavours to assail the same through cross-examination, which endeavours ultimately proved ineffectual in undermining the plaintiff's credibility. In conformity with the settled principles of law, where evidence on a material or essential point is not challenged or controverted, such evidence is deemed to be admitted and accepted as inherently credible and presumptively true, thereby obviating the need for further corroboration. The defendant's failure to effectively challenge PW1's testimony thus renders it unimpeached and probative, and the court may accordingly place reliance on the same in its adjudication of the issues14. [65] And going by, the rule in Browne v Dunn, which is a rule of practice– thus, in any trial – civil or criminal – if a party intends to contradict the evidence of a witness – either by way of submission to the judge or jury, or by other evidence – then the party is required to put the substance of the contradictory evidence to the witness during cross- examination, so that the witness might comment on it. Browne V Dunn (1893) 6 R 67 At 70, 76. (emphasis supplied) [66] And as McMurdo JA put it in R v Jae [2021] QCA 287 at [45]: “The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and 13 Joseph Mulenga v. The People SCZ Appeal No. 128 Of 2017 14 Uganda Revenue Authority v. Stephen Mabosi No. SCCA No. 26 Of 1995 J22 which are intended to be asserted in due course”. [emphasis added] [67] Thusly, a contravention of the rule shall be deemed to have occurred in situations wherein: (a) a party fails to timely interpose an objection or challenge the testimony of a witness on a specific point during the presentation of evidence; but thereafter (b) seeks to introduce assertions or evidence designed to impugn the credibility or veracity of the witness's testimony. In such cases, the trial magistrate shall be vested with the discretion to determine the appropriate remedial measures to be adopted, in order to ensure the integrity of the proceedings and the administration of justice. [68] Having regard to the preceding findings, I am constrained to hold that there exists no cogent or compelling rationale that would justify denying the plaintiff an award of damages for the defendant's egregious breach of contract. This I have done in keeping with the case of National Drug Company Limited and Zambia Privatization Agency v Mary Katongo Appeal No. 79 of 2001, where the Supreme Court guided that once parties have voluntarily and feely entered a legal contract, they are bound by the terms and the role of the Court is to give efficacy to the contract, when it has been breached, by respecting, upholding and enforcing it. [69] To wit, the defendant's material breach of the contractual accord with PW1, spanning an uninterrupted period of 1 year and 8 months, is an undisputed fact, and the plaintiff is thus entitled, as a matter of law, to damages for the defendant's failure to perform their contractual obligations and their concomitant breach of the agreement. [70] Thus, as sympathetic as I am to the defendant’s plight––I cannot in good conscious fail to grant the plaintiff the herein sought damages of K14, 000.00, being damages for breach of contract, plus interest. The J23 inevitable corollary of my decision being that––the plaintiff has proven his case on the preponderance of evidence and that I find in favour of the same. This I have done in the spirit of being even-handed; with the hope of making a stab at doing justice15. CONCLUSION [71] In conclusion, I find merit in the plaintiff’s claim and order that the hereinbefore captioned quantum of K14, 000.00 plus interest shall be settled by the defendant on or before the 30th day of September, 2024. [72] The defendant shall bear the costs to this suit. [73] Either party has the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGEMENT DELIVERED AT MBALA ON 6th AUGUST, 2024 _____________________________________________ DEELESLIE MONDOKA HON’BLE MAGISTRATE 15 M’membe And Post Newspapers Ltd (In Liquidation) v. Mboozi And Others (Appeal 7 Of 2021) [2022] ZMSC 4 J24