Owusu & Others v Attorney General (Appeal 53 of 2011) [2014] ZMSC 17 (13 February 2014)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO.53/2011 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: THOMAS OWUSU AND 142 OTHERS APPELLANTS AND ATTORNEY GENERAL RESPONDENT CORAM: MWANAMWAMBWA, WANKI, MUSONDA, JJS On 1st November, 2011 and 14th February, 2014 For the Appellants: Mr. M. Mutemwa - Messrs. Mutemwa Chambers Mr. N. Okware - Messrs. Okware and Associates For the Respondent: Mrs. Mwila Kombe - Attorney General’s Chambers. J U D G M E N T WANKI, JS, delivered the Judgment of the Court. CASE REFERRED TO: 1. Philip Mhango -Vs- Dorothy Ngulube and Others 1983 ZR 61. When we heard this appeal we sat with Honourable Mr. Justice Musonda who has since resigned. This judgment is, therefore, a majority judgment. The appellants herein appealed against the ruling of the Deputy Registrar of the Supreme Court in which he held that the appellants were not entitled to payment of baggage allowance for incoming and outgoing on every tour of service. The respondent J2 cross-appealed against the said ruling of the learned Deputy Registrar. The brief facts of this case are that the appellants who are foreign nationals were recruited by the Government of the Republic Zambia to work as teachers in the Ministry of Education. They signed standard contracts which stipulated their entitlements. When they pressed for payment of what was due to them the Government of the Republic of Zambia did not pay them as a result they resorted to the Courts for redress. The High Court found in favor of the appellants. The respondent being dissatisfied with the trial Court’s judgment appealed to this Court. This Court partly allowed the appeal but upheld the lower Court’s holding that the sums claimed by the appellants be paid to them. In its judgment this Court ordered the Deputy Registrar to assess the monies due to the appellants. The Deputy Registrar conducted the assessment and made a ruling in respect thereof. It is this ruling that is now subject of this appeal and cross appeal. The appellants advanced one ground of appeal as follows: 1. The Learned Deputy Registrar erred in Law and fact by holding that the Plaintiffs are not entitled to J3 payment of baggage allowance for incoming and outgoing on every tour of service. The respondent presented six grounds of appeal in the cross- appeal as follows: 1. 2. 3. 4. 5. That the learned Deputy Registrar erred in law and fact by considering exhibits marked ‘CM23’ CM26’ CM28’ and ‘CM 30’ which had been expunged from the record (on ground that the said exhibits appeared to be scandalous as they were subject of criminal prosecutions against Clement Massa and Thomas Owusu,) in determining the rate applicable when computing baggage allowance. That the learned Deputy Registrar misdirected himself in law and fact when he disregarded Circular No. B303 of 1965 and held at page 3 of the Ruling and page 8 of the Record of Appeal that “it would be an error to assess what was underpaid using another Circular other than what was presented at trial; especially where the judgment clearly stipulated the Circular applicable”. That the learned Deputy Registrar erred in law and fact by holding that the Plaintiffs were entitled to Baggage Allowance at the rate of US$35.0 per kg when there was no credible evidence to support such a finding. That the learned Deputy Registrar erred in law when he dismissed the Defendants application to expunge paragraph 13 of the Plaintiffs Supplementary Affidavit in Reply to; the Affidavit in Opposition to summons for assessment of damages filed in court on 2nd June 2010. That the learned Deputy Registrar misdirected himself in law and fact when he held the total underpayment on inducement allowance and gratuity owed to the Appellants was US$2,991,605 and US$747,901.25 respectively when there was no evidence to support such a finding. J4 6. That the learned Deputy Registrar misdirected himself in law and fact by excluding only the Plaintiffs whose first contracts were signed after September, 2002 as Plaintiffs not entitled to Baggage allowance. The brief argument in support of ground one of appeal as submitted by Counsel for the appellants is that the holding by the learned Deputy Registrar that the appellants are not entitled to payment of baggage allowance for incoming and outgoing on every tour of service is a total misdirection and misapprehension of the facts and evidence tendered in Court. Counsel for the appellant referred this Court to Clause 7 of the standard contracts which the appellants signed. The response to this argument as submitted by Counsel for the respondent is that the learned Deputy Registrar was on firm ground by holding that the appellants are not entitled to payment of baggage allowance for incoming and outgoing on every tour of service. Counsel for the respondent, also relied on Clause 7 of the contract. In support of ground one of the cross-appeal it was argued that exhibits marked ‘CM23’, ‘CM26’, ‘CM28’ and ‘CM30’ had been expunged from the record. It was therefore surprising that J5 when considering the question on the amount payable on baggage, the learned Deputy Registrar specifically referred to the exhibits which had been expunged from the record. In their response to this ground, Counsel for the appellants in the main appeal conceded to this ground. It was argued in support of ground two of the cross-appeal, on behalf the respondent, that Learned Deputy Registrar misdirected himself in law and fact when he disregarded Circular No. B303 of 1965, as it is very clear from Circular B303 of 1965 that baggage was supposed to be transported by air freight and not as accompanied baggage, using excess baggage rates, as claimed by the appellants. The response to this ground is that the circular subject of this ground does not apply to the appellants because they were not recruited on the 1960 conditions of service and it only affected the children of the appellants. The summary argument in support of ground three of the cross-appeal is that there was no evidence to support the finding by the learned Deputy Registrar that US$35.0 should be applied when computing baggage allowance as the documents relied upon by the learned Deputy Registrar were not originals. In J6 response, it was submitted that the documents (photo copies) questioned in this ground provided assistance to the learned Deputy Registrar in arriving at a fair and just decision and that the learned Deputy Registrar properly exercised his discretion in admitting the said documents because they were relevant to the proceedings. In support of ground four of the cross-appeal it was submitted that it was a misdirection on the part of the learned Deputy Registrar as he misapplied the law, by not fully considering principles underlying the rebuttal evidence. It was contended that rebuttal evidence is not intended to re-open the rebutting party’s case after they have closed their case. It was contended, in response, that the Court had directed the state to produce accounting documents, which were to help the Court arrive at a just decision, which was not done the appellants’ request to avail to the Court any accounting documents if they found any. It is some of those documents which were found which were contained in paragraph 13 of the supplementary affidavit. Therefore, the respondent’s objection is mischievous, and is an attempt to stifle evidence. J7 In respect of ground five of the cross-appeal it was argued that the appellants did not discharge the burden as they did not produce, by way of documentary evidence, the underpayment that was made by the respondent. It was the respondent’s submission that the learned Deputy Registrar misapplied the law when he admitted paragraph 13 of the supplementary affidavit and that on the proper view of the evidence a finding in respect thereof ought not to have been made. The brief response to ground of the cross-appeal is that appellants contend that they discharged the burden of proof and indeed proved that they were underpaid inducement allowance and gratuity by the respondent. To fortify ground six of the cross-appeal it was argued that baggage allowance was abolished in 2002, which meant that the appellants, whose first contracts or last contracts were signed after September, 2002 were not entitled to baggage allowance and not just those whose first contracts were signed after September, 2002. The short response to this ground is that the appellants have failed to understand the gist of ground six of the cross-appeal. The learned Deputy Registrar should have categorically stated which appellants were not entitled to J8 baggage allowance rather than stating that it was only those whose first contract were signed after 2002 because there were those appellants whose last contracts were signed after 2002. It was therefore important that the ruling referred to first and or last contracts signed after September, 2002. We wish to state here that we are indebted to Counsel on both sides for their submissions before us in this appeal. We have examined the said submissions and the record of proceedings in the Court below. We shall consider the ground of the main appeal and then turn to the six grounds of the cross-appeal. We shall consider grounds three and five of the cross-appeal together. The appellants in this matter signed standard contracts of employment with the Government of the Republic of Zambia. The said contracts were for a specified duration open to repudiation by either party in accordance with the terms provided therein. Clause 1 of the contracts provide in part as follows:- “(1) Subject to the provisions of this agreement, the engagement of the officer is for a tour of not less than twenty-four nor more than thirty-six months continuous resident service beginning from the date of assumption of duty in Zambia but where the total continuous resident service of the officer is less than thirty months and he is not returning for a further service, a tour of duty may be fixed by the Government at less than thirty months only by J9 the Government determining the engagement of the officer in accordance with Clause 8(1) of this schedule… (3) On completion of the thirty-six months’ resident service under this Agreement the Government may, with the consent of the officer, extend the tour of that officer:- Provided that:- (a) Any such extension shall not exceed six months in duration; and …” From this clause it is our view that the minimum duration of the tour service was twenty-four months and the maximum duration was thirty-six months. In the event that there was an extension of six months the maximum duration of the tour of service would be forty-two months. The upshot of the appellants’ arguments in their ground of appeal is that they were entitled to payment of baggage allowance for incoming and outgoing on every tour of service. However, the respondent is of the view that that baggage allowance is only payable on the first and last tour of service. Clause 7 of the contracts regulated matter relating to passages. Clause 7 defines the term passage as conveyance by such grade and by such route as the Government may direct or approve, J10 between the country of recruitment and Zambia. The said Clause 7 states in part thus: “(1) Passages in this agreement means conveyance by such grade and by such route as the Government may direct or approve, between the country 7 or recruitment and Zambia. ‘Children’ in this agreement means children under twenty-one years of age who are unmarried and wholly dependent on the officers. (2) The Government shall provide the officer with free passage back to his country of recruitment for himself and if married for his wife and children (if any), provided they accompany him to or join him in Zambia with the permission of the Government. (3) The Government shall provide the officer with a free passage back to his country of recruitment for himself and, if married for his wife and children (if any) provided they accompany him in the following circumstances only: (a) On completion of a tour of service to the satisfaction of the Government, provided that the passage or passages are taken within two months of the date on which the officer ceases to do duty in Zambia, and provided in the case of the officer’s wife and children, that passages will only be provided if they have spent at least three months in Zambia; or (b) On the determination of the engagement by the Government, as provided in Clause 8(1); or (c) If the officer is invalided home before the completion of a tour of service, as provided in Clause 11…” J11 It is our considered view that it is not in dispute that baggage allowance is payable to the appellants. What is in dispute is when this baggage allowance becomes payable. We anxiously examined Clause 7(3) on this point. Our understanding of Clause 7(3) of the contract is that baggage allowance became payable on the expiration of the tour of service. Whenever a tour of service expired the said allowance became payable. It is our deduction therefore, that baggage allowance became payable at the end of every tour of service. There is nothing in the contract to fortify the respondent’s argument on this point. In light of the foregoing we have reached the inescapable conclusion that the learned Deputy Registrar fell in error when he held that the appellants are not entitled to payment of baggage allowance for incoming and outgoing on every tour of service. The ground of appeal has merit. We now turn to the cross appeal. We shall not labour to say much about ground one of the cross-appeal because the appellants who are the respondents in respect of the cross appeal conceded to this ground of appeal. Suffice to state that it was J12 injudicious for the learned Deputy Registrar to rely on documents which had been expunged from the record. This matter was before the learned Deputy Registrar for assessment. The Court below had mandate to receive and consider all the necessary evidence which would assist in making the assessment of what was due to the appellants. One of the areas of assessment related to baggage allowance. It is our view that Circular B 303 of 1965 contained useful information for determination of what was due to the appellants in terms of baggage allowance. Circular B 303 of 1965 provided for the quantity of baggage allowed and the rate applicable. The said circular is headed “Revised Passage Entitlement and Baggage Allowances on First Appointment and Termination of Service for officers Appointed on Expatriate Conditions.” It is our view that the contractual provisions relating to baggage envisaged a situation where the appellants baggage was to be transported by air freight or cargo plane, as opposed to passenger plane - a view canvased by the appellants. We are alive to the fact that passenger planes allow a limited quantity of handy baggage to accompany passengers on board. In this J13 particular case we have taken a view that there was a legitimate expectation that the appellants will bring with them to Zambia on their tour of service, baggage in quantities more than the maximum allowed on passenger planes. Therefore, the only appropriate and convenient option available was for this excess baggage to be transported by air freight. In this light Circular B 303 of 1965 becomes an ideal tool for assessment of money incidental to baggage transportation. This ground of the cross appeal was aptly argued on behalf of the respondent. Findings of the Court must be based on facts or the law or mixed facts and the law. Any finding whose basis is outside the facts or the law or mixed facts and law cannot be sustained by this Court. This is so because such findings will be perverse or made in the absence of any relevant evidence. We are fortified by the decision in the case of PHILIP MHANGO -Vs- DOROTHY NGULUBE AND OTHERS (1) where this Court held that: “the Court will not reverse findings of fact made by a trial Judge, unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on proper view of the evidence, no trials Court acting correctly could reasonably make.” J14 From our examination of the record of proceedings, we have found that there was no evidence or law to support the findings of the learned Deputy Registrar subject of grounds three and five of the cross-appeal. In the circumstances, we are prepared to tamper with the findings of the Court below. We, accordingly, reverse and set aside the findings subject of grounds three and five of the cross- appeal. The principles of evidence have envisaged a situation where an opposing party answering a case may present evidence which brings to the fore issues which were never in the contemplation of that other party at the time that party presented its case. In this particular situation the affected party is permitted to call evidence in rebuttal. This opportunity extended to the affected party is never meant to allow that party to re-open its case or have a second bite at the cherry. Rebuttal evidence is adduced to disapprove or contradict the evidence presented by an opposing party. We have examined paragraph 13 of the supplementary affidavit in reply to the affidavit in opposition to summons for assessment. The nature of the evidence introduced by the said paragraph does not constitute rebuttal evidence. There was J15 nothing new or surprising presented by the respondent which necessitated rebuttal evidence whatsoever. Our brave deduction is that the appellants by their introduction of paragraph 13 of their affidavit intended to have a second bite at the cherry which cannot be allowed by this Court. The learned Deputy Registrar fell in error when he allowed the said paragraph 13 notwithstanding the objection. As far as ground six of the cross-appealed is concerned, we found no fault on the part of the learned Deputy Registrar. We were not convinced by the spirited argument of the respondent in respect of this ground. We find no merit in this ground and we, accordingly, dismiss it. In a nutshell, the appeal has merit and we accordingly allow it. The cross-appeal has merit in the first five grounds of appeal and we allow the said part of the cross-appeal. Ground six of the cross- appeal has no merit and we dismiss it accordingly. We order that this matter be sent back for assessment before the Deputy Registrar. J16 …………………………………………… M. S. Mwanamwambwa, SUPREME COURT JUDGE. …………………………………………. M. E. Wanki, SUPRME COURT JUDGE.