Mirriam Banda Zimba v CFB Medical Centre Limited (APPEAL No. 270/2022) [2024] ZMCA 226 (21 August 2024)

.•. IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 270/2022 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: MIRRIAM BANDA ZIMBA AND CFB MEDICAL CENTRE LIMITED RESPONDENT CORAM: Chashi, Makungu and Sichinga, JJA ON: 14th and 2l5t August 2024 For the Appellant: B. Mwanza Junior of Messrs. Nsapato & Co. Advocates. For the Respondent: L. Phiri of Messrs. August Hill and Associates JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Diego Casili v Access Bank (Zambia) Limited & 4 Others CAZ Appeal No. 259 of 2022 2. Freeman & Another v Cooke and Others (1848) 2 Exch, 3. Zambia Electronic Clearing House Limited v James Kalengo - CAZ Appeal No. 239 of 2020 -J2- 4. North-Western Energy Company Limited v Energy Regulations Board (2011) ZR, 513 5. Minister of Home Affairs v Lee Habasonda - SCZ Judgment No. 23 of 2007 6. David Evans Kasonde v Zambia Revenue Authority -SCZ Appeal No 84 of 2015 Legislation referred to: 1. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Honourable Mr. Justice E. Mwansa, J, Industrial and Labour Relations Division of the High Court. 1.2 In the said Judgment, the learned Judge (the Judge) dismissed the complaint by the complainant, now the Appellant. 2.0 BACKGROUND 2.1 The Appellant on 21st October 2021, commenced an action in the court below, by way of notice of complaint under Section 85 (4) of The Industrial and Labour Relations Act 1 . The Appellant was seeking the following reliefs: ) . . L -J3- (i) A declaration that the complainant had a legitimate expectation of renewal of her contract of employment; (ii) Damages for unfair, unlawful and wrongful non- renewal of the contract of employment; (iii) Further or other re lief that the court may deem fit. 2 .2 According to the amended affidavit verifying notice of complaint, the Appellant was employed as Administrative Assistant on 1st December 2004, under a fixed term employment contract. The contract was renewed on six (6) occasions, the last one being the contract from 1st December 2018 to 30th November 2021. The said contract appears at pages 201-216 of the record of appeal (the record), where she was given a fixed term contract, as Director - Human Resources and Administration. 2.3 It was deposed that the Respondent carried out performance appraisals annually. That in respect with the Appellant, her performance was excellent. According to the Appellant, the Vice Chairman of the Board of J. .). -J4- Directors (the Board) Mr Kantilal Ranchhod and the Chief Executive, Dr Rienhilde Lynen, had a discussion, where they agreed that a meeting would be held to discuss her conditions of service as the contract of service was coming to an end. 2 .4 It was further deposed that, on 11 th June 2021, Dr Lynen informed her that she intended to renew the contract following her meeting with the Chairman and Vice Chairman of the Board and indicated to her what her salary in dollars would be under the renewed contract. 2. 5 That there was also a meeting on 17th June 2021, between the Appellant, Dr Lynen, Mr. George Payne and Mr. Ranchhod, where a discussion took place over the promotion of the Appellant to the role of Chief Operations Officer, largely due to her performance and knowledge of the Respondent's business. 2.6 According to the Appellant, Mr. Payne, then as Chairman of the Board, posted on his WhatsApp status, a message from Mr. Mark O'Donnel, a member of the Board, who stated that he was not going to support the J. -JS- renewal of the Appellant's contract. On 1st September 2021, the Respondent through Dr Lynen, wrote to the Appellant, informing her that the contract would not be renewed. The said letter appears at page 252 of the record. 2 . 7 In response, the Appellant wrote to Dr Lynen, on 2 nd September 2021, informing her that a performance appraisal and assessment was required before a decision could be made about the renewal of the contract. The Respondent however maintained its position. The job was subsequently advertised. 2.8 It was the Appellant's contention that the decision not to renew the contract was wrongful, unfair and unlawful as she had a legitimate expectation of renewal of the contract based on various assurances given to her by Dr Lynen and Mr. Ranchhod, that the contract would be renewed, or would be offered a new position. 2. 9 The Appellant further contended that she was similarly circumstanced to other employees whose contracts were due to come to an end, but were subjected to a -J6- performance appraisal before making a decision to renew or not to renew their contracts. 2 . 10 According to the Appellant, the manner in which she was questioned in 2021, about salary increments and the conduct of certain members of the Board, indicated that the non-renewal of the contract was not made in good faith, was unreasonable and based on malicious grounds. 2.11 The Appellant in her amended affidavit verifying notice of complaint, produced thirty-four (34) documents as exhibits marked "MBZl" to "MBZ34", mainly consisting of all the seven (7) fixed term employment contracts, staff manual conditions of service, performance appraisal forms, e-mail exchanges, the Board Charter and other correspondence between the Appellant and the Respondent. The Appellant in its affidavit in reply, went on to produce forty-nine (49) exhibits, which to a large extent were not relevant to the determination of the matter. 2.12 The Respondent filed its amended answer on 9 th February 2022, in which it averred that all the contracts -J7- that the Appellant was engaged under, were all fixed term contract's. That, three (3) months before the Appellants last contract came to an end, the Respondent in exercising its discretion whether to renew or not to renew the contract, wrote to the Appellant indicating that her contract would not be renewed. 2.13 According to the Respondent, neither the contract of employment nor the conditions of service expressly provided for conditions that have to be met or which the Respondent should consider in determining whether or not to renew the contract. 2.14 It was the Respondent's position that the performance appraisals were carried out on a yearly basis and were used to determine whether an employee was eligible for a salary increase or not. That it was not a precondition to determine whether an employee's contract would be renewed or not. Further that, several employees whose contracts were terminated by effluxion of time, did not undergo a performance appraisal and therefore did not -JS- receive a pay nse as their contracts were not being renewed. 2 .15 It was the Respondent's contention that the contract was terminated by effluxion of time and the Appellant had no legitimate expectation that her contract would be renewed and was therefore not entitled to the reliefs b eing sought. 2.16 In its attendant affidavit to the amended answer, Dr Lynen asserted that, she never gave an assurance to the Appellant that her contract would be renewed. That she however did in her capacity as the immediate supervisor discuss with the Appellant the possibility of her contract being renewed. That she never intended to renew the contract as this was the preserve of the Board and not a decision she could unilaterally make. 3.0 DECISION OF THE COURT BELOW 3.1 After considering the lengthy affidavits by the parties, the oral evidence and equally lengthy submissions with numerous authorities, the Judge made short work of the matter by delivering a nine (9) paged Judgment. -J9- 3. 2 After considering the pleadings and the evidence by both parties, the Judge formulated the sole issue for determination as fallows: "Whether on the evidence before me, it can be said the complainant had a legitimate expectation of renewal of the contract of employment." 3.3 According to the Judge, the Appellant had alleged that, she was assured of renewal of contract, yet she had not sufficiently established that to the required standard. That the only evidence before the court was that she was assured, whilst the Respondent stated that there was no such assurance. 3.4 The Judge opined that the Appellant was on a fixed term contract, which came to an end on 30th November 2021. The Judge declined to make any declaratory Order, as the Appellant had not shown to the required standard that she had a legitimate expectation of renewal of the contract. 3.5 The Judge noted that, the Appellant seemed to suggest that there were other reasons behind the non-renewal of the contract, which made the non-renewal wrongful, -JlO- unfair or unlawful. The Judge was of the view that anything else that had been brought after expiry of the contract was not material to the case and he accordingly excluded them, as terms of the contract take precedent. 4.0 THE APPEAL 4.1 Disenchanted with the Judgment, the Appellant appealed to this Court, astonishingly advancing twelve (12) grounds couched as follows: (i) The court be low erred in law and fact when it dee lined to make a determination that the complainant had a legitimate expectation of renewal of the contract and failed to discharge the burden of proof despite having all the evidence and information required to make the requisite determination being before the court; (ii) The court below erred in law and/act when it held that the complainant did not have a legitimate expectation of renewal of the contract despite the evidence on record -Jll- indicating that the Respondent gave express promises and assurance to the complainant; (iii) The court be low erred in law and fact when it declined to consider that the Respondent's policies and resolutions of the Respondent's board of directors and remuneration committee form part of the contract of employment; (iv) The court below erred in law andfact when it failed to consider the Respondents custom and practice form part of the complainant's contract of employment relating to the requirement to perform appraisal prior to the renewal of the contract of employment; (v) The court below erred in law andfact when it refused to consider the non-renewal of the complainant's contract of employment was unfair, unlawful and wrongful as she was not subjected to a performance appraisal as required by the Respondent's -J12- conditions of service, board resolutions and practice and custom; (vi) The court be low erred in law and fact when it failed to make a determination on the Respondent's failure to conduct a performance appraisal in relation to the complainant when all other employees whose contracts were due to come to an end by effluxion of time were subjected to a performance appraisal; (vii) The court below erred in law andfact when it neglected to make a determination as the manner in which the Respondent ought to have exercised its discretion to renew the complainant's contract of employment; (viii) The court below erred in law andfact when it refused to consider that the complainant was similarly circumstanced to the other employees whose contracts were due to come to an end and where subjected to a performance appraisal; -J13- (ix) The court below erred in law and/act when it failed to consider that the Appellant was entitled to a renewal of her contract based on her excellent performance and assurances from the Respondent; (x) The court below erred in law and/act when it neglected to consider that bad faith and unreasonableness of the Respondent in appointing Claire Sarah Clarissa Calloway to a role similar to the complainant's despite the legitimate expectation of renewal of the contract; (xi) The court below erred in law and/act when it declined to award damages to the complainant in spite of the Respondent's wrongful, unfair and unlawful conduct in failing to renew her contract despite having a legitimate expectation of renewal of the contract; (xii) The court below erred in law and/act when it refused to award the complainant one (1) year free membership to the Respondent's -J14- medical facility and one (1) month basic salary despite this being an entitlement based on a resolution of the Respondent's Board of Directors and Remuneration Committee. 5.0 APPELLANT'S AND RESPONDENT'S HEADS OF ARGUMENTS 5. 1 Both parties filed their respective heads of argument. The Appellant filed her heads of argument together with the record of appeal. We note that the arguments made up of sixty (60) pages are not only copious, but also prolix, tedious and repetitive. 5 .2 Unfortunately, the Respondent to the same effect weighed in with seventy-seven (77) pages and thereafter t h e App ellant filed heads of argument in reply consisting of fifty (50) p ages. 5.3 In the case of Diego Casili v Access Bank (Zam bia) Limited & 4 Others. 1 We had occasion to addr ess the issue of heads of argument at length. We ren dered guidance on what are heads of argument and their purpose. We emphasized the point that heads of argument must be clear, succinct and without -JlS- u nnecessary elaboration. In the said case, we made a finding that the heads of argument contravened Order 10/9(9) of The Court of Appeal Rules 1 (CAR) and were therefore an abuse of t h e court process. We went on at page J26 of the Judgment to state as follows: "Litigants and legal practitioners should forthwith be warned that in future, we will not entertain such heads of argument, which will suffer the fate of being expunged or stntck out. Although our ntles do not provide for the maximum number of pages heads of argument should contain, the parties should by all means refrain from filing dissertations, thesis or written submissions. Save in exceptional circumstances heads of argument should not exceed thirty (30) pages." 5.4 We sh all th erefore in view of the aforestated case, not recapitulate the heads of argument, but shall refer to them gen erally if and when need arises -Jl6- 6.0 ANALYSIS AND DECISION 6.1 After a general overview of the arguments and the Judgment of the court below, two issues arise for determination as follows : (i) Whether the Appellant proved in the court below that there was a legitimate expectation that her fixed term contract would be renewed; (ii) Whether excellent or good performance, can be taken to be legitimate expectation in aftxed term contract. 6.2 We will cluster the grounds under the two issu es as the grounds h ave been duplicated and the grounds which do not fall under the two issues shall be addressed separately. Grounds one, two, three and seven will be considered under the first issue, whilst grounds four, five, six and nine will be dealt with under th e second issue. The remaining grounds , that is eight, ten, eleven and twelve, will be dealt with separately. 6.3 Indeed, 1n determining the issue of legitimate expectation, it was for the Appellant as an employee to -Jl 7- prove that she had a legitimate expectation of the renewal of contract. It is clear that the Appellant was under a fixed term of contract of employment, for the period 1st December 2018 to 30th November 2021. A thorough perusal of the contract discloses that it did not have any provision for renewal of the contract. It is also not in dispute that no other document relating to the Appellant's employment including the conditions of service contained a renewal clause. It follows therefore that there was no qualification or pre-condition for renewal contained in the contract of employment. 6.4 The doctrine of legitimate expectation was popularized in the case of Freeman & Another v Cooke and Others2 , where it was opined as follows: "The rule laid down by the Court of Queens Bench that where one by his words or conduct; willfully causes another to believe in the existence of a certain state of things, and induces him to act on that be lief or alter his own previous position, the former is precluded -J18- from averring against the latter a different state of things as existing at the same time." 6. 5 In the application of th e doctrine of legitimate expectation to employm ent law, we h a d occasion to address th e issu e in th e case of Zambia Electronic Clearing House Limited v James Kalengo3 . In the said cas e, we h ad this to say: "We have noted the case of Communication Authority v Vodacom, the Supreme Court established that legitimate expectation arises where a decision maker, such as an employer makes representation or leads someone to believe that they will receive or retain a benefit or advantage including that a hearing will be held before a decision is taken. In such a scenario, such decision maker or employer is estopped from going back on his well-founded affirmation or representation ... The principle of legitimate expectation cannot be said to be applicable in this case as the Respondent had a fvc.ed term contract which came to an end by -J19- effluxion of time and without any assurance being given by the Appellant that it was committed to renewing his contract for a further term ... The only fact that the Respondent appeared to rely on, was that he was brought in from Rwanda on a similar assignment and he was labouring under the mistaken be lief that he was, the only one capable of developing the National Finance Switch and which project was not completed within the contract period. However, this scenario does not represent circumstances under which the legitimate expectation may arise. The Respondent served his full contract term and was discharged upon maturity of the contract period. The sanctity of a contract ought to be upheld and respected unless there was something more. In this case there was none." 6.6 We had in t h e said case made it clear t h at a legitimate expectation of r en ewal, can only arise wh ere an -J20- employee is given assurances that his contract would be renewed, or the employer condu cts itself in such a manner that leads an employee to believe his contract will be r en ewed. We h eld that in the circums tances of the case, the employee did not have a reasonable expectation of renewal of his contract as th ere was no conduct from the employer that suggested th at his contract would be renewed. 6.7 We must add here that the representation, assurance or confirmation made by the employer to the employee must be clear and unambiguous. 6.8 The Supreme Court in the case of North-Western Energy Company Limited v Energy Regulations Board4 on considerin g the principles of legitimate expectation , h ad this to say: "18. Legitimate expectation ari.ses where a decision maker has led someone to believe that they will receive or retain a benefit or advantage including that a heari.ng will be held before a decision is taken. - l.. ' -J21- 19. The protection of legitimate expectation is at the root of the constitutional principle of the rule of law, which requires regularity, predictability and certainty in governments dealings with the public. 20. The doctrine of legitimate expectation derives its justification from the principle of allowing the individual to rely on assurances given and to promote certainty and consistent administration." 6.9 The Appellant in her arguments advanced the contention that Dr Lynen and Mr Ranchhod who she alleged made the assurances, were acting under delegated authority of the Board. This argument is flawed. The Appellant as the Director of Human Resources and Administration, was 1n a vantage position and knew that the decision whether to renew or not renew her contract was domainly a prerogative of the Board and not any other person or individual. There is no evidence that the Board made any assurance to the Appellant that it would renew the contract. -J22- 6 .10 The only time the Board addressed the issue was as shown by the minutes of the Board meeting held on 31 st August 2021 , as shown at page 611 of the record. At the said meeting it was resolved as follows: "5 Director HR and Administration position. (a) Mrs Edwards proposed that the position of Director HR and Administration was no longer feasible and that the contract of Mrs M. Zimba should not be renewed upon expiry. This was seconded by Mr O.' Donnel. (b) Notice of non- renewal of contract to be given by 1st September 2021 (c) The position is to be removed from the new company Organogram." 6 . 11 We reiterate that the Appellant had a fixed term contract with the Respondent, which contract had no clause for renewal and came to an end by effluxion of time. The circumstances of this case are that the fixed term of contract in issue did not create a legitimate expectation of renewal and no representation or promise that the -J23- contract would be renewed was ever made by the Respondent through its Board. 6.12 We note that under this set of grounds, the Appellant questions the soundness of the Judgment in the court below in line with the Supreme Court case of Minister of Home Affairs v Lee Habasonda5 . We decline to be drawn into that argument as it is not speaking to any of the twelve (12) grounds of appeal. 6 . 13 As regards the second issue of whether excellent or good performance, can be taken to be legitimate expectation in a fixed term contract, the Appellant drew our attention to the case of David Evans Kasonde v Zambia Revenue Authority6 . In that case, the Supreme Court held that while the employer has the discretion to extend a fixed term contract or offer a new contract, a legitimate expectation of renewal of a fixed term contract can be created in certain circumstances, particularly where the contract of employment itself provides criteria based on consideration of: " ... performance, awards or salary increment that would be taken into account as conditions -J24- precedent to offering an employee a new contract." 6. 14 In the Kasonde case, the court held that if a fixed term contract includes conditions for renewal such as performance targets, if an employee meets these, a legitimate expectation of renewal could possibly arise. Unfortunately for the Appellant in the case at hand, the fixed term contract had no provision for renewal and consequently no criteria or conditions for consideration for renewal. Therefore, even if the Appellant's performance was excellent or satisfactory, there was no obligation on the part of the Respondent to renew the contract. The second set of grounds equally fails. 6.15 As regards ground eight, it is attacking the court's refusal to consider the Appellant as being similarly circumstanced to the other employees, whose contracts were due to come to an end and were subjected to a performance approval. We have already determined that there was no provision for criteria or condition that performance was to b e a consideration on renewal of contract. -J25- 6.16 It also follows in respect to the tenth ground that a legitimate expectation cannot arise from the subsequent appointment of another employee in a similar role , in view of our earlier determination that there was no legitimate expectation on the part of the Appellant. 6. 1 7 Grounds eleven and twelve are premised on awards. Having made a finding that there was no legitimate expectation, it follows that the non- renewal of the fixed term contract was not wrongful, unfair and unlawful. The two grounds therefore become otiose. 7.0 CONCLUSION 7. 1 The appeal has no merit and is accordingly dismissed. We make no order as to costs, as the matter emanated from the Industrial and r Division of the High Court. J. CHASHI COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE