Marasa Holdings Limited (T/A Intercontinental Hotel) v Namenda Sylvia Sindila and Anor (APPEAL NO. 60/2017) [2019] ZMCA 438 (9 October 2019)

Jl IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE ( Civil Jurisdiction) BETWEEN: APPEAL NO. 60/2017 MARASA HOLDINGS LIMI ~rrt.~ r)i• (T / A INTERCONTINENT '-'-r'3"'4J" U APPELLANT AND NAMENDA SYLVIA SINO / U 9 UC{ · .. , t&;:J - -..._...._ HARRIET KASANDA CHISAN ' CfVilA'-;:-- i::Gi:s,,,. ST RESPONDENT 2No RESPONDENT CORAM: MULONGOTI, SICHINGA, NGULUBE, JJA On the 23rd May 2018 and 9 th October, 2019 For the Appellant: A. Shonga, SC, Messrs Shamwana and Company For the Respondent: WA. Mubanga, SC, V. M. Mwenya, Messrs Chilupe and Permanent Chambers JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. July Donobo (Tl A Juldan Motors) vs Chimsoro Farms Limited (2009) Z. R.148 2. Socotec International Inspection (Zambia) Limited vs Finance Bank, Appeal Number 149 of 2 011 3. Zambia Revenue Authority Vs T and G Transport, SCZ Judgment Number 2 of 2 00 7 4. NFC Africa Mining PLC Vs Techno Zambia Limited (2009) ZR 237 5. Minister of Home Affairs, The Attorney General vs Lee Habasonde and Others (2004) Z. R.207 6. Nkhata and Others vs. Attorney General (1966) Z. R.124 7. Anderson Kambela Mazoka vs. Levy Patrick Mwanawasa and 2 Others (2005) ZR 138 8. Swarp Spinning Mills Plc vs Sebastian Chileshe and others (2002) Z. R.23 9. Wilfred Weluzani Banda vs M edical Council of Zambia and Attorney-General, SCZ Judgment Number 7 of 2 01 6 10. Zambia Consolidated Copper Mine v James Matale (1996) ZR 143 11 . Chilanga Cement Plc v Kasote Singogo (2009) ZR 122 J2 Legislation referred to: 1. The Employment Act Chapter 268 of the Laws of Zambia 2. The High Court Rules, Chapter 27 of the Laws of Zambia 3. The Industrial Relations Act, Chapter 269 of the Laws of Zambia 4. The Court of Appeal Rules Statutory Instrument Number. 65 of 2016 5. The Court of Appeal Act, Number 7 of 2016 6. Rules of the Supreme Court, 1999 Edition 7. The High Court Act, Chapter 27 of the Laws of Zambia 8. The Industrial Relations Rules Chapter 268 of the Laws of Zambia 9. The Electronics Communications and Transactions Act, Number 21 of 2009 10. The Authentication of Documents Act, Chapter 75 of the laws of Zambia This is an appeal against a Judgment of Mr. Justice M. Musaluke, of the Industrial Relations Division of the High Court (as he then was), that was delivered on 30th August, 2016. The background to this matter is that sometime in 2014, the appellant terminated the employment of the 1 st and 2nd respondents, by payment in lieu of notice. Dissatisfied with the said termination , the respondents filed an amended notice of complaint with supporting affidavits on 1st September, 2015. They contended that the letters terminating their respective contracts of employment amounted to unila teral variation of their terms and conditions of service and were contrary to the amended contracts dated 11 th October, 20 10, which introduced the appellant's pension scheme and converted their respective contracts of employment to permanent and pensionable. The respondents further argued that the said termination was wrongful as it failed to comply with Section 26B of the Employment Act 1 , J3 which required the giving of notice prior to declaring them redundant. They contended that they were not heard prior to the termination of their employment and that as such, the rules of natural justice were not followed. The appellant filed an Answer on 10th September, 2015 disputing the respondents' contention that their letters of termination amounted to unilateral variation of their terms and conditions of employment. The appellant denied breaching the rules of natural justice or declaring the respondents redundant. After considering the evidence before it, the court found that the respondents' employment was terminated because of the allegations that they leaked information about the discussion that they had with management on industrial relations matters in the company. The court then awarded the respondents twenty-four months' salaries as damages for wrongful termination of employment. Dissatisfied with the Judgment of the lower court, the appellant lodged this appeal advancing the following grounds- 1. The court below erred in law and in fact when it received secondary evidence, being a compact disc containing covert recordings obtained by the respondents, contrary to the rules of J4 evidence. 2. The court below erred in law and in fact when it admitted into evidence covert recordings obtained by the respondents which were not authenticated. 3. The court below erred in law and in fact when it accepted into evidence covert recordings having intercepted communication obtained by the respondents, contrary to the law. 4. The court below erred both in law and in fact when it held that the real reason for the termination of the respondents' contracts of employment was on account of the allegation of leaking information by the appellant despite evidence to the contrary. 5. The court below erred in law and in fact when it awarded twenty four months' salary to each of the respondents as damages for wrongful termination 1n the absence of aggravating circumstances. 6. The court below misdirected itself in law and in fact when it held that it only received the respondents' submissions despite the appellant having filed its submissions on 29 th July, 2016, the deadline date. JS Prior to the hearing of the appeal, the respondents ' advocates filed a notice to raise preliminary issues. The respondents contended that this court does not have jurisdiction to hear th e appeal and that there will be no need to proceed with the appeal because it will be superfluous and embarrassing to th e court which cannot exercise jurisdiction that it does not have. We were referred to Order 47 Rule 2 of the High Court Rules2 , which provides that- "After fourteen days from the date of an interlocutory decision, an application for leave to appeal shall not be entertained." The respondents submitted that the r ecord of appeal was filed into court by the appellant on 6th February, 2018 and that the counting of the fourteen days period started on 16th February 2018 when a proper record of appeal was placed before court. They submitted that the a ppellant sought to r ectify the incomplete record of appeal by seeking leave to file a supplementary record of appeal s o as to file a complete and competent record of appeal before this cour t. J6 We were referred to the case of July Danobo (TIA Juldan Motors) vs Chimsoro Farms Limited1 in which the Supreme Court stated that a record of appeal which is not compiled in a prescribed manner may b e dismissed. We were also referred to the case of Socotec International Inspection (Zambia) Limited vs Finance Bank2 in which the Supreme Court allowed an appellant who had omitted documents from the record to amend it. The court stated that: "whether the appeal will be dismissed or not will depend on the peculiar circumstances of each case." It was submitted that the respondents ' application to dismiss the appeal is properly before this court and ought to be determined. We were further referred to the case of Zambia Revenue Authority vs T and G Transport3 , where the Supreme Court stated that- "The notice of appeal filed herein was filed without leave of either the High Court or the Supreme Court Rules. It was submitted that in accordance with Rule 55 of the Supreme Court Rules, failure to obtain leave J7 before filing a notice of appeal is a default of lodgi ng an appeal and merits a dismissal. " It was contended that leave should have been obtained at the time the court delivered the Ruling and that on that basis, this court has no jurisdiction to consider grounds 1 to 3. The respondents further submitted that the appellant did not seek leave of the court to amend ground 5 of the memorandum of appeal, contrary to the provisions of the law. It was argued that the appellant seeks to appeal against a finding of fact by the lower court in ground 4 of the appeal, contrary to the provisions of the law in section 97 of the Industrial and Labour Relations Act3 . The respondents a lso contended that ground 6 which is attacking the failure by the lower court to take the appellant's submissions into account is bereft of merit as submissions are merely meant to assist the court in arriving at a decision and cannot form a ground of appeal. In opposing the application, the appellant submitted that Sections 9 and 10 of the Court of Appeal Acts are instructive and provide that decisions on appeal can only be made by the majority of Judges of the Court of Appeal hearing a matter and not by a single Judge of the court. We were referred to Order 13 Rule 5(1) of the Court of Appeal Rules4 JS which provides that- "S(i) a respondent who intends to make any preliminary objection in relation to an appeal shall give notice of such preliminary objection to the court and other parties within fourteen days from the date of receipt of the record of appeal." It was contended that Order 13 Rule 5( 1) is precise and requires that the respondents should have raised any objection to the appeal within fourteen days of receipt of the record of appeal but they did not. We were referred to the case of NFC Africa Mining PLC Vs Techno Zambia Limited4 in which the Supreme Court guided that litigants must a dhere to the rules of court or they will have their appeals dismissed. We were urged to dismiss the respondents' application. At the h earing of the appeal on 23rd May 2018, Mr Mubanga SC urged us to determine the preliminary issue before we could hear the appeal. We ruled that since a preliminary issue on jurisdiction could be raised at any stage, we would proceed to h ear the appeal. We directed counsel for the respondents, Mr Mubanga, SC to raise his objections / arguments J9 on jurisdiction in his heads of arguments, then at Judgment stage (as we now do) we would consider the issue on jurisdiction first. Mr Mubanga then filed the 1st and 2nd respondents heads of argument on 6 th J une 2018. Section 8(2)(a) of the Court of Appeal Act5 states : 1. The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the rules. 2. Despite subsection (1), where this Act or the rules do not provide for a particular point of practice or procedure, the practice of the Court shall be. a) In relation to civil matters, in accordance with the Supreme Court Practice, 1999 (White Book) of England and the law and practice in the Court of Appeal in England in force up to 31st December, 1999. State Counsel contend s therefore that in accordance with Order 14A of the Rules of the Supreme Court6 , a preliminary issue can be raised at any stage. He amplified that a perusal of grounds 1 to 3 is clear that the appellants are appealing against th e Ruling of the trial Judge on 16th February 2016, yet no leave was obtained to appeal against the JlO said Ruling. The appellant then filed heads of argument in reply on 15th June, 2018 and submitted that Order 47 of the High Court Act7 which the respondents relied on governs appeals from the Subordinate Court to the High Court and not appeals from the High Court to the Court of Appeal. It was further submitted that Rule 35 sub rule 1 and 2 of the Industrial Relations Rules8 which the respondents relied on should be read in conjunction with Rule 34 which provides that- "A s ingle Judge of the court may exercise any powers vested in the court not involving the final determination of a dispute o r other matter, hereafter referred to as an interlocutory matter." It was submitted that a ruling made in the midst of trial should not be treated like any other interlocutory ruling and that an aggrieved party can take issue with the said ruling on appeal against the Judgment as is the case in this matter. Responding to the second issue raised by the respondents, the appellant conceded to amending ground 5 of the appeal without leave of court and submitted that although the respondent's submission was that the said ground was amended contrary to the law, no statutory law Jll was cited. On the third issue raised, the appellant cited Section 97 of the Industrial Relations Act supra which states that- "Any person aggrieved by any award, declaration, decision or Judgment of the court may appeal to the Supreme Court on any point of mixed law and fact." It was su bmitted that the court was called upon to determine a question of law whether the termination of the respondents' contracts of employment by the appellant was lawful, which determination 1s dependent on the resolution of questions of fact. The fourth issue raised relates to the contention that the appellant's submissions were not considered, and that h ad they been taken into consideration, the court would have arrived at a different determination. We have considered the preliminary issues raised, the evidence on record and the submissions by counsel. Responding to the summons for an order to dismiss appeal, the appellant contended that the respondents had contravened Order 12 Rule 5(1) of the Court of Appeal Rules supra which indicates the time frame within which to file a notice of intention to raise a preliminary J12 issue. In response, the respondents contended that they could not file a notice of intention to raise a preliminary issue before the appellant could file the supplementary record of appeal. We agree with the respondents' contention that time to file a notice of intention to raise preliminary issue starts running from the time a proper record of appeal is filed into court. We will therefore proceed to consider the preliminary issues raised by the respondents. We shall determine first the preliminary objections dealing with the question of jurisdiction or lack thereof. The first issue is that we have no jurisdiction to consider grounds 1-3 as they are attacking the Ruling made in the midst of trial to which leave to appeal was not obtained. However, we are of the view that the Ruling that the respondents have issue with was made in the midst of a trial and could only be appealed against after the main Judgement. Trial continued after the Ruling and the Judge was at that stage, not supposed to grant leave to appeal thereby disrupting trial. We do not find merit in the preliminary issue raised in this regard. We sha ll consider grounds 1-3. The second preliminary issue raised 1s that Section 97 of the Industrial and Labour Relations Act, supra prohibits appeals from the Industrial Relations Division based on points of law. However, the J13 appellant submitted that ground four of the appeal raises a point of mixed law and fact. It is couched as follows- "That the court below erred both in law and in fact when it held that the real reason for the termination of the respondents' contracts of employment was on account of the allegation of leaking information by the appellant despite evidence to the contrary." It is trite law that a finding of fact not supported by evidence becomes a question of law. At this stage we cannot determine whether the finding in ground 4 was perverse or not supported by evidence. We can only do so after we consider the merit of ground 4 in the main appeal. We form the view that it is cardinal that this issue be determined in this appeal and do not find merit in the preliminary issue raised. It is accordingly dismissed. Regarding the fourth preliminary issue raised, the respondent submitted that the ground of a ppeal on whether the court con s idered the submissions has no basis because submissions are merely meant to assist the court in arriving at its decision. The appellant, in arguing this ground referred to the case of Minister of Home Affairs, The Attorney General Vs Lee Habasonde and Others5 where the Court J14 guided on what the contents of the Judgment must be. We a re of the view that indeed, submissions merely assist the court in arriving at its decision, as it is supposed to consider the same. However, it is not bound by counsel's submissions in any matter before it. We do not find merit in the fourth issue raised and we dismiss it. All in all, we do not find merit in the preliminary issues raised and they are all dismissed . We will now deal with the main appeal. In arguing ground one, the appellant submitted that substantial justice did not work for the benefit of both sides but only worked for the respondents, and that the Court was wrong to dismiss the appellant's objection to the production of the CD on account of it being secondary evidence of covert audio recordings which were recorded on a phone not presented before Court. On ground two, it was submitted that the court should not have admitted the recordings which were obtained by the respondents and wer e not authenticated. Counsel argued that there are no dates given in the recordings and that as such, it is uncertain when the recordings were made by the 1st respondent. It was submitted that the audio recording marked voice 007 was clouded by an air of controversy with respect to its authenticity and that JlS the human resources director denied discussing lack of team work and communication in the human resources department with the 1s t respondent, as purported by the audio recording marked voice 007. Counsel contended that it is difficult to determine if at all, that the conversation took place and submitted that as such, the Court was not justified in admitting an audio recording that was un-authenticated. On ground three, Counsel referred to Section 64 of the Electronics Communications and Transactions Act9 , which prohibits the interception of communication. It was contended that the Court below should not have accepted the evidence as contained in the CD because it is prohibited by Section 64(1) of the Electronic Communications and Transactions Act. It was argued that the 1st respondent covertly recorded her conversations with the appellant's director of human resources without his knowledge. Counsel submitted that the Court admitted the CD evidence a nd stated that it would not prejudice the appellant but would help the Court in its mandate to do substantial justice to the parties and give a reasonable opinion. It was argued that the respondents could not hide behind the issue of substantive justice in having inter cept ed communication presented before Court because it is prohibited by law. J16 On ground four, it was submitted that the lower Court found for a fact that the real reason for the termination of the respondents' employment was the a lleged leakage of information to the Union. Counsel cited the case of Nkhata and Others vs. Attorney General6 on the issue of an appellate court assailing findings of fact which were not supported by the evidence on record. Counsel contended that the finding of fact should be set aside as it does not have the support of any corresponding evidence on record. No evidence was led to show that the respondents were accused of leaking information about negotiations for conditions of service to unionised staff. It was argued that it was only the 1st respondent who testified that she was accused of leaking information and that not handling negotiations properly cannot be equated to leaking information. Counsel submitted that the Court's finding of fact to the effect that the respondents were accused by leaking information about negotiations of conditions of service is incorrect as it was only mentioned by the 1st respondent and that the court should have discounted the 1st respondent's testimony because it was un substantiated. J17 Counsel submitted that since there was no evidence that the appellant's General Manager was made aware of reports of alleged leaking of information, the appellant could not have acted on any alleged accusation of leaking information in terminating the respondents' contracts of employment. Counsel cited the case of Anderson Kambela Mazoka vs. Levy Patrick Mwanawasa and 2 Others7 on the issue of the respondents proving their case. It was submitted that the respondents did not discharge the burden of proof by showing that their termination was on account of the allegation of leaking information and that if the respondents had made an effort to see the General Manager, they would have learnt why their contracts were terminated. It was further submitted that the audio recordings do not prove that there were allegations of leaking information against the respondents by either the human resources manager or the general manager. We were urged to treat the audio recordings with caution as the evidence on record is that the 1st respondent was the only witness who was aware that the recordings were made. It was contended that the real reason the General Manager terminated the respondents' employment was that he had goals and targets to J18 achieve which he thought he could not attain with the respondents. We were urged to allow ground four of the appeal. In arguing ground five, it was submitted that the termination of the respondents' employment by the appellant was in accordance with their respective contracts. It was submitted that the twenty-four months that were awarded to each of the respondents as damages was not justifiable as there were no aggravating circumstances. Counsel referred to the case of Swarp Spinning Mills Plc vs Sebastian Chileshe and others8 where the court stated that the normal measure of awarding damages is depicted from the circumstances and the justice of the case and that the lower court was not justified in departing from the normal measure of damages. It was submitted that since there was no proof that the appellant's general manager had knowledge of the allegations of leaking information, then it cannot be said that he terminated the services of the respondent in bad faith. It was contended that the age of the respondents should not have been a factor for consideration in awarding twenty-four months' salary to each of the respondents as damages for wrongful termination since there was no suggestion that there was scarcity of jobs in the field of human resources in which the respondents were employed. We were • lt J19 referred to the case of Wilfred Weluzani Banda Vs Medical Council of Zambia and Attorney-General9 in which the Supreme Court stated that- "There is also no substance in the argument that the appellant had a very slim chance of finding another job considering his age, because age is a natural consequence of life." We were urged to allow this ground of appeal. In arguing ground six it was submitted that the court misdirected itself when it stated that it only received th e respondents' submissions when the appellant filed its submissions on 29th July, 2016. It was submitted that the appellant filed its submission s on 29 th July, 2016 and that if the court h ad sight of the appellant's submissions, it would h ave taken them into consideration and would have arrived at a different outcome. We were urged to allow the appeal with costs. The respondents, in responding to ground one and two, submitted that the lower court was on firm ground when it admitted the compact disc into evidence. It was submitted that the respondents' testimonies corroborated each oth er regarding the a llegation by the appellant's • • j J20 human resources director that they h a d leaked information which formed the b asis for the t ermination of their respective contracts of employment. It was contended that no prejudice was occasioned to the appellant by a dmitting the compact disc into evidence as the truth of the contents of the said compact discs was attested to by the respondents and the evidence of the disc was sufficiently corroborated. It was submitted that a compact disc does not fall under the provisions of the Authentication of Documents Act 10• We were urged to dismiss this ground of appeal. Responding to ground three, it was submitted that the compact disc cannot be said to contain intercepted communication as the 1st respondent who made the recording was party to the meeting at which the contents of the compact disc were communicated and that the lower court was on firm ground when it used the contents of the compact disc to determine the real reason for the t ermination of the respondents' contracts of employment. We were urged to dismiss this ground of appeal for lack of merit. Responding to ground four, it was submitted that the lower cou rt was on firm ground when it found that the respondents' contracts of employment were terminated on the allegation of leaking information as • .. J21 the evidence of the respondents corroborated each other. We were urged to dismiss ground four of the appeal for lack of merit. Responding to ground five, it was submitted that the lower court was on firm ground when it awarded the respondents twenty -four months' salary as damages for wrongful termination. It was submitted that this award was as a result of the malice and act of bad faith in the manner the respondents' contacts of employment were terminated on allegations of leaking information as they were not formally charged nor were they heard. At the hearing of the appeal, both counsel submitted that they would rely on the heads of argument filed. We have considered the Judgment and arguments by both parties. Flowing from the grounds of appeal, the crucial issue which this court should resolve is whether the lower court erred in accepting the covert recordings that were obtained by the 1st respondent. Further, this court must resolve whether the termination of the respondents' contracts of employment was on account of leaking information and a lso resolve whether the award of 24 months' salary to each of the respondents was excessive. • • J22 Grounds 1 to 3 of the appeal relate to the receipt of the compact disc which contained covert recordings and whether the court erred in accepting the said recordings into evidence. The Judge in the lower court in analysing the evidence before him decided to delve behind the notice clause which the appellant utilised to terminate the respondents' contracts of employment. The court found that the evidence on record was that the respondents were accused of leaking information about negotiations for conditions of service to unionised staff. The court then went on to find that the respondents' employment was terminated due to the allegations that they leaked information to the union which the lower court found was not substantiated by the appellant. Having perused the record from the court below and the Judgment of the lower court, we did not find anything that demonstrates that the lower court relied on the contents of the compact disc in arriving at the decision. The court relied on the evidence of the respondents who testified in line with what they alleged was on the CD. Further, we cannot fault the lower court for admitting the compact disc into evidence because it was tendered by the 1st respondent who recorded the conversation and testified on the contents of the CD. We are of the J23 view that the issue of the authenticity of the recording does not therefore arise because the CD was tendered into evidence by its maker. We do not find merit in grounds one to three of the appeal and they are accordingly dismissed. Ground four of the appeal is that the court erred when it held that the respondents' contracts of employment were terminated due to the allegations of leaking information by the respondents . The record discloses that the evidence of the second respondent was that the Director Human Resource informed her that the General Manager was of the view that the 1st and 2nd respondents had b een leaking information to unionised staff. The Director Human Resource then advised the respondents to resign or opt to be transferred to other departments. A few days later, the respondents received their letters of termination of employment, in which the a ppellant invoked the termination clause in the contracts of employment. We are of the view that the lower court was on firm ground when it found that the appellant terminated the respondents' contracts of employment because of the allegations that they were leaking information to unionised staff. This was what the Director Human Resource communicated to the respondents. We are of the view that J24 the lower court was on firm ground when it decided to delve into or go behind the reasons given for termination. We are fortified by the Supreme Court decision in Zambia Consolidated Copper Mines (ZCCM) vs Matale 10 that the Industrial Relations Court is entitled to delve into or go behind reasons given for t ermination in order to redress any real injustices discovered. The evidence on record is clear that they were terminated for allegations of leaking information which they were accused of verbally a few days before the notice to terminate was issued to them. The appellant is clearly trying to hide behind the notice clause. All it should have done is to charge the respondents and afford them an opportunity to be h eard instead of unfairly invoking the notice clause. See Chilanga Cement Pie vs Kasote Singogo 11 . This ground is accordingly dismissed. Ground five of the appeal attacks the lower court's award of twenty-four months' salary as damages for wrongful termination. The court found that the appellant acted with malice and bad faith in the manner the respondents' contracts of employment were terminated. We do agree with the lower court that the circumstances of this case indicate that the contracts of employment were terminated maliciously and in bad faith . We are of the view that the appellant victimised the respondents .. • J25 and went on to terminate their employment wrongfully, causing them to lot of mental torture and distress. We therefore do not find the award of twenty-four months' salary as damages excessive and dismiss this ground of appeal for lack of merit. On ground six, whether the court misdirected itself in holding that it did not receive the appellant's submissions, when they were filed on the 29th of July, 2016, we are of the view that submissions are merely meant to assist the court in arriving at its decision though the court is supposed to consider the submissions made by counsel, it is not bound by them. As such, we do not find merit in this ground of appeal and it is dismissed. The six grounds of appeal having failed, the net result is that this appeal is dismissed for lack of merit. Costs to the respondents in this court to be taxed in default of agreement. --~ ~ ( COURT OF APPEAL JUDGE - . . . . . . . . .. . . . . D. L. COURT OF '- .. ....... ... . GA JUDGE P. C. M NGULUBE COURT OF APPEAL JUDGE