Kabuswe Musonda v Zambia Daily Mail Limited (APPEAL NO. 19/2023) [2024] ZMCA 258 (2 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 19/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KABUSWE MUSONDA AND n 2 1 r- ,.,. I.. J ( l "··• I APPELLANT . J / ZAMBIA DAILY MAIL LIMITED RESPONDENT CORAM: MCHENGA, DJP, NGULUBE AND MUZENGA, JJA. On 17th September, 2024 and 2nd October, 2024. For the Appellant: Mrs. S. Phiri - Hinji and Mrs. Mushibwe - Newa Messrs Chifumu Banda and Associates For the Respondent: Mrs. N. Musonda, Messrs Kalokoni and Company JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Nkhata and others vs The Attorney General (1967) ZR 124 2. Wilson Masauso Zulu vs Avondale Housing Project Limited (1982) ZR 172 3. 4. Attorney-General vs Marcus Kapumba Achiume (1983) ZR 1 Attorney General and Philip Mhango vs Dorothy Ngulube and others (1983) ZR 61 (SC) 5. Kuta Chambers (sued as a firm) vs Concillia Sibalo (suing as Administratrix of the estate of the late Francis Sibalo) Selected Judgment Number 36 of2015 6. Y. Band F Transport Limited vs Supersonic Motors Limited (2002) ZR22 7. Afrope Zambia Limited vs Anthony Chate and 5 others SCZ Appeal No. 160/2013 Legislation referred to: 1. The High Court Rules Chapter 27 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This is an appeal against a Judgment of the High Court delivered by Mikalile J, on 7 November, 2022. By that Judgment, the court found that the plaintiff (appellant herein) failed to establish that his benefits should have been calculated on pro rata basis and that he further failed to prove that he was accorded additional responsibility. The matter was dismissed with costs. 2 .0 BACKGROUND 2.1 The background to the appeal is that the plaintiff (appellant herein) commenced an action by way of writ of summons and statement of claim seeking the following reliefs- 1. Payment of the sum of K32,858.00 being outstanding amount of the plaintiffs terminal benefits. -J2- 2. Payment of the sum of K76,685.00 being the unpaid additional responsibility allowance. 3. Payment of the sum of K438,240.00 being unpaid salaries from April 2019 till date of writ of summons. 4. An order for payment of salaries from date of writ of summons to date of full and final settlement of all monies due to the plaintiff. 5. Interest. 6. Costs of and incidental to this action and any other relief the court may deem appropriate and just. 2.2 The plaintiff, who will hereinafter be referred to as the appellant, averred that he was employed by the defendant, (hereinafter referred to as the respondent) as a sales executive in August, 2001 and was subsequently elevated to the position of Senior Executive. Eventually, he rose to the position of Advertising Manager. In February, 2019, the appellant opted for early retirement when he did not agree with the respondent's proposed revised conditions of employment. 2.3 The appellant contended that he was underpaid by six months from August, 2018 to February, 2019 amounting to K32,868.00. He stated that the respondent only paid him terminal benefits up to August, 2018. -J3- 2.4 The appellant further averred that he performed the duties of Assistant Advertising Manager for the period December 2017 to February, 2019 in addition to his duties as Advertising Manager. 2.5 The appellant contended that he was entitled to 25% of his basic salary as additional responsibility allowance for the stated period when he performed the duties of Assistant Advertising Manager. According to the appellant, the respondent failed to pay him the additional responsibility allowance amounting to K76,685.00. 2.6 The appellant stated that he was removed from the respondent's payroll and accrued salary arrears in the sum of K437,240.00 at the date of commencement of this matter. 2. 7 The respondent filed a Defence on 19 March, 2021. It was averred that the appellant objected to the new conditions of service that were introduced by the respondent in March 2021 and opted to go on early retirement. It was averred that the appellant remained on the respondent's payroll until he was paid his terminal benefits in full. The respondent denied owing the appellant the sum of K76,685.00 nor did it owe the appellant accrued salaries amounting to K438,240.00. The respondent denied all the claims that the appellant sought. 2.8 The lower court conducted a trial and heard the appellant as well as witnesses who testified on behalf of the parties. -J4- 3.0 CONSIDERATION AND DECISION BY THE LOWER COURT 3 .1 The lower court considered the evidence before it and the submissions by counsel. The questions that the court considered in determining the matter were- 1. Whether the appellant's benefits should have been paid on pro rata basis. 2. Whether the appellant was accorded additional responsibilities by the respondent and whether he was entitled to additional responsibility allowance. 3 . Whether the appellant should have been maintained on the payroll due to the claimed unpaid terminal benefits. 3.2 The lower court delivered a Judgment on 7 November, 2022, dismissing the appellant's claims and held, among other things, that the appellant had not proved that he was entitled to additional responsibility allowance in the sum of K76,685.00. The court further found that the appellant's claim for unpaid terminal benefits for the period August, 2018 to February, 2019 and unpaid allowance for additional responsibilities had failed. The court went on to hold that the appellant had failed to establish that his benefits ought to have been calculated on pro rata basis. His action failed in its entirety and was dismissed, with costs to the respondent. -JS- 4 .0 THE APPEAL 4.1 The appellant was dissatisfied with the decision of the lower court and appealed to this court, advancing two grounds of appeal couched as follows- l . The learned trial Judge in the court below misdirected herself when she stated at page J26 that the official communication from the employer to the employee is the logical course for any establishment contrary to the conditions of service. 2 . The court below erred both in law and/act by ordering costs against the appellant. 4.2 The appellant filed his heads of argument on 23 January, 2023. The appellant's chief grievance under ground one was that according to clause 26.2 of the conditions of service, there was no requ irement for an employee to be written to for them to be entitled to payment of additional responsibility allowance. The lower court was attacked for holding that official communication was the logical course for any establishment and that the court was in total disregard of the conditions of service. It was argued that the lower court should have restricted itself to the evidence on record as opposed to rendering her opinion on the issues before her. 4.3 According to Counsel, the lower court should have restricted itself to the question of whether or not the appellant was given -J6- additional responsibility entitling him to the said allowance. It was contended that the appellant was given additional responsibilities when the assistant advertising manager resigned in 2017 . 4.4 Counsel maintained that clause 26.2 of the respondent's conditions of service did not require that the appellant be written to for h im to be entitled to additional responsibility allowance. We were urged to allow this ground of appeal for the aforestated reasons. 4.5 The respondent's reaction to the appellant's argument under ground one was that the appellant was appealing against a finding of fact and that the law does not allow it. Reference was made to the cases of Nkhata and others vs The Attorney General1 and Wi lson Masauso Zulu vs Avondale Housing Project Li mit ed2 to further the argument that- "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the f indi ngs in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts." 4.6 The cases of Attorney-General vs Marcus Kapumba Achiume3 and Philip Mhango vs Dorothy Ngulube and others4 were also referred to in this regard. Counsel referred to the finding of fact -J7- that was made by the lower court on the responsibility allowance which was that- "However, I am of the view that official communication from the employer to the employee in such circumstances is the logical course for any establishment. How else will the finance and accounts department pay the allowance if it is not in receipt of a memorandum showing that an employee is entitled to that allowance." 4.7 It was contended that where one was given additional responsibilities, a letter would have to be given to the employee for him to be entitled to the payment of additional responsibilities allowance. We were urged to dismiss the first ground of appeal for lack of merit. 4 .8 In arguing ground two, the appellant submitted that the lower court erred when it awarded costs to the respondent as the decision to do so was not made judiciously based on the facts of the case. Reference was made to Order XL Rule 6 of the High Court Rules which provides that- "The costs of every suit or matter and of each particular proceeding therein shall be in the discretion of the court or a Judge and the court or a Judge shall have full power to award and apportion costs, in any manner it or he may deem just, and in the absence of -J8- any express direction by the court or a Judge, costs shall abide the event of the suit or proceedings." 4.9 Counsel submitted that generally, costs follow the event and the case of Kuta Chambers (sued as a firm) vs Concillia Sibalo (suing as Administratrix of the estate of the late Francis Sibalo)5 , was cited. 4.10 According to Counsel, the court's discretion to award costs is exercised within certain parameters and consideration must include the conduct of the parties during the proceedings. The case of Y. B and F Transport Limited vs Supersonic Motors Limited6 was referred to where the court stated that- "The general principle is that costs should follow the event, in other words, a successful party should norm.ally not be deprived of his costs, unless the successful party did something wrong in the action or in the conduct of it." 4 .11 Counsel argued that the appellant's conduct in the court below was faultless as he complied with all the court orders3, unlike the respondent who necessitated an adjournment for failing to file the Bundle of Documents on time. 4.12 It was further contended that an award of costs must not be a punitive measure to prevent the parties from accessing the courts. Counsel argued that the award of costs against the -J9- appellant who is a retiree is an injustice and a preventive measure for persons who may be similarly circumstanced from accessing the courts. 4. 13 It was submitted that the court should have ordered each party to bear its costs in the interest of justice. We were urged to allow the second ground of appeal and set aside the lower court's findings of fact and allow the appeal, with costs to the appellant. 4.14 Responding to ground two, it was submitted that the award of costs to a successful party is in the discretion of the court. It was further contended that costs follow the event and that a successful party should not be deprived of his or her costs. Counsel submitted that the respondent was the successful party in the lower court. The case of A/rope Zambia Limited vs Anthony Chat e and 5 others7 was referred to in this regard. We were urged to dismiss the second ground of appeal for lack of merit and in turn dismiss the appeal with costs to the respondent. 5 .0 HEARING 5.1 At the hearing of the appeal, Mrs. Hinji submitted that the appellant's Advocates would rely on the grounds of appeal and heads of argument filed with brief argumentation. -JlO- 5.2 Mrs. Musonda, on behalf of the respondent submitted that she would rely on the heads of argument filed. We were urged to dismiss the appeal for lack of merit. 6.0 CONSIDERATION OF THE MATTER AND DECISION 6.1 We have considered the record of appeal and the submissions by counsel. The issues raised in the first ground of appeal are- 1. Whether the court disregarded conditions of service that governed the appellant's employment and found that official communication between the appellant and the respondent carried more weight. 2. Whether the appellant was entitled to be paid responsibility allowance when he allegedly was accorded additional responsibilities. 3. Whether the lower court erred in awarding costs to the respondent. 6.2 In ground one, the appellant challenges the lower court's finding of fact that there should have been official communication to the appellant indicating that he was entitled to additional responsibility allowance. 6.3 According to the appellant, clause 26 .2 of the respondent's conditions of service merely stated that responsibility allowance would be paid to any employee who would be accorded added -Jll- responsibility over and above his or her normal duties for a period exceeding 14 days. 6.4 In his evidence in chief the appellant had no written document from the respondent according him additional responsibilities. 6.5 In our view, the evidence on record is clear. When the appellant was asked if he had a letter indicating that he was accorded additional responsibilities, he stated that he did not have one. We have perused Clause 26.2 of the Conditions of Service and we note that it provides that an employee who is accorded additional responsibilities will be entitled to an allowance. The evidence on record is that the appellant failed to produce evidence showing that he had written authority according him additional responsibilities. We are of the view that the appellant did not prove that he was formally accorded the said additional responsibilities. 6 .6 The lower court, 1n its finding of fact which the appellant challenges found that the appellant should have been communicated to, confirming that he was accorded additional responsibility by the respondent. We agree with the lower court that there should have been prior written notice from the Human Resource Manager to the effect that the appellant was accorded additional responsibilities. -J12- 6.7 We are of the view that the appellant's argument that the lower court's finding regarding official communication, that it was against the conditions of service, cannot be sustained. It is worth noting that the appellant's witness in the lower court, PW2 testified that when he was assigned additional responsibilities, during the period when his boss was out of office, a letter was written to him. We are therefore of the view that the appellant failed to prove that he was entitled to the additional responsibility allowance and the lower court cannot be faulted for finding that there should have been communication to prove the said entitlement. Accordingly, ground one fails for lack of merit. 6.8 The second ground of appeal attacks the lower court for awarding costs to the respondent. It was argued that the award of costs against the appellant was an injustice as he was a retiree and former employee of the respondent. This court was urged to set aside the award of costs to the respondent and award costs to the appellant. The respondent responded by submitting that costs follow the event and urged the court to dismiss ground two. 6 .9 Our view is that costs are awarded in the discretion of the court and a successful party should not be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted costs. -J13- We are of the view that the respondent having been the successful party was entitled to costs and that the lower court exercised its discretion judicially when it awarded costs to the respondent. 7.0 CONCLUSION 7. 1 The net result is that this appeal fails for lack of merit and it is accordingly dismissed. Costs are awarded to the respondent to be taxed in default of agreement. DEPUTY JUDGE PRESIDENT P. C. M. NGULUBE COURT OF APPEAL JUDGE c:J;GA COURT OF APPEAL JUDGE -J14-