SABZ Industrial (Z) Limited v Edith Sakala (Appeal No. 137 of 2022) [2024] ZMCA 68 (28 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 137 of 2022 HOLDEN AT NDOLA {Civil Jurisdiction) - r t.) t. J--l SABZ INDUSTRIES (Z) LIMITED !VIL ,APPELLANT AND EDITH SAKALA RESPONDENT CORAM: KONDOLO SC, MAJULA & PATEL, JJA On 22nd & 2sth February 2024 For the Appellant: Mr. M. Mwenya Messrs. KMG Chisanga Advocates For the Respondent: No Appearance JUDGMENT Patel, JA, delivered the Judgment of the Court. pg. J 1 Cases Referred to: 1. The Minister Of Home Affairs, The Attorney General vs Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Centre For The Constructive Resolution Of Disputes) SCZ Judgment No 23 Of 2007. 2. Wilson Masauso Zulu vs Avondale Housing Project Limited (1982) ZR 172. 3. Susan Mwale Harman vs Bank of Zambia SCZ Appeal No. 191 of 2015. 4. Amchile Import & Export Limited and Others v Ian Chimanga {T/A Tawana Business Ventures) and Another SCZ Appeal No. 43A/2011. 5. Kapansa Mwansa v Zambian Breweries PLC Appeal No.153 of 2014. 6. Khalid Mohamed v The Attorney-General {1982) Z. R. 49 {S. C.). 7. Mweempe v Attorney General, International Police & Another (Appeal 15 of 2008) [2012] ZMSC 29. Legislation referred to: 1. The Employment Code Act, No.3 of 2019. Other Works referred to 1. Writing of Judgments: A Practical Guide for Courts and Tribunals by. Dato Syed Ahmed Ibid, 2011 edition, Lexis Nexis and HUM Press. 1.0 INTRODUCTION 1.1 This is an appeal against the whole Judgment of Mwansa E. J, delivered at the High Court, Industrial Relations Division, on 2ih April 2022, on a pg. J 2 complaint raised by the Respondent, against the Appellant resulting in the Judgment of the lower Court, now the subject of the appeal. 2.0 BACKGROUND 2.1 The Respondent, (the Complainant in the Court below), commenced these proceedings against the Appellant (Respondent as it was below), by way of Notice of Complaint and Affidavit (page 12 of the Record of Appeal), on 2nd March 2021, seeking the following reliefs: a. b. c. d. Leave days; Separation Package; Salary for the month of January 2021; Costs and any other benefits the court may deem fit. 2.2 In her affidavit in support of the Complaint, it was the Respondent's averment that she was employed by the Appellant company on 6th April 2018 on what was then an oral contract. 2.3 She referred to her exhibit marked 'ESl' which was a copy of the employment contract dated 1st July 2019. A copy of this contract with the disciplinary code annexed, is noted at pages 16 to 22 of the Record of Appeal. 2.4 She averred that she tendered her resignation by letter of 8th January 2021 on account of ill-health. pg. J 3 2.5 She referred to a letter dated 19th January 2021 addressed to her by the appellant asking her to exculpate herself from losses caused to the Appellant during the discharge of her duties. Copies of the letter, her response dated 21st January 2021 and Minutes of the case hearing dated 23 rd January 2021, were exhibited by her and marked 'ES2, 3 & 4". 2.6 She averred that she was given a charge letter dated 25th January 2021, a copy of which was exhibited marked 'ES 5'. It was her averment that she was not given her dues and the matter though reported to the Labour Office, yielded no result, culminating in her filing the Complaint in the Industrial relations division of the High Court, seeking the reliefs in paragraph 2.1 above. 2. 7 The Appellant filed its Answer to the Respondents Notice of Complaint, and Affidavit in Support, on 30th March 2021, denying the Respondent's allegations and averred that the Respondent is still indebted to the Appellant and that it does not owe any money or any of the reliefs sought by the Respondent. The Answer and the Affidavit is seen from pages 29 to 55 of the Record of Appeal. 2.8 The Appellant was not present in the lower Court and from the transcript of proceedings at page 56 to 57, the matter was reserved for Judgment. pg. J 4 3.0 DECISION OF THE COURT BELOW 3.1 The Learned Judge in the lower Court, found that he was satisfied on the evidence before him and made the following findings: 1. That there was a contract of employment executed on 1st July 2019; 2. That the Complainant resigned on 8th January 2021. This means that the contract of employment was a long-term contract, in line with the Employment Code Act No. 3 of 20191 which Code is applicable by reason of the Act having come into effect from April 2019. 3.2 The Learned Judge having found the above, came to a conclusion and made the following orders; 1. Firstly, because the contract was a long term contract, the Complainant was entitled to severance pay; 2. The Learned Judge noted that the Complainant took 18 days of leave and noted that it left her with another 18 days of leave value unutilized and arrived at the conclusion to award her 18 days leave. 3. The Complainant was also awarded the number of days worked in January 2021 up to the time she resigned; 3.3 The Learned Judge arrived at the conclusion that a search in the evidence before him did not show that the Complainant owed anything or that she was paid the terminal package. The Learned Judge concluded that the complainant was successful and ordered that the record be referred to the pg. J 5 Honourable Registrar for assessment, on what was owed to the Complainant. 4.0 THE APPEAL 4.1 Dissatisfied with the outcome in the Court below, the Appellant filed a Notice and Memorandum of Appeal on 28th May 2022, fronting three (3) grounds of appeal, namely; 1. The Learned Judge erred both in Jaw and fact when he held that the contract between the Appellant and Respondent was a Jong term one. 2. The Learned Judge erred both in fact and in Jaw when he held that the Respondent was entitled to severance pay. 3. The Learned Judge erred both in fact and in Jaw when he found that the Respondent had 18 days of leave unutilized and awarded the 18 days of leave value without evidence. 5.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 We have duly considered and appreciated the Appellant's Heads of Arguments filed on 30th June 2022 and will not be recast here save for emphasis as necessary. 6.0 THE RESPONDENT'S HEADS OF ARGUMENTS 6.1 The Respondent did not file any heads of argument. pg. J 6 7.0 THE HEARING 7.1 At the hearing, Counsel Mwenya placed reliance on their heads of argument and prayed for the appeal to be allowed. 8.0 DECISION OF THIS COURT 8.1 At the onset of our determination, we must express our regret in the way this matter appears to have progressed in the lower Court. The Complainant was allowed to proceed with her case, and the proceedings of the lower Court are less than one page in length, the Judgment, the subject of this appeal is about 1.5 pages and the orders and findings made by the Court, do not appear from the evidence on record, neither in the supporting affidavit evidence nor in the scanty transcript placed before the Appellate Court. 8.2 The Apex Court has time and again urged the Superior Courts to provide well-reasoned judgments, which reasons must articulate how and why certain decisions are reached and an evaluation of the evidence before the lower Court. In the case of The Minister Of Home Affairs, The Attorney General vs Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Centre For The Constructive Resolution Of Disputes) 1 the Supreme Court when confronted with the lower court's judgment, expressed its displeasure in the following terms: "Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the pg. J 7 reasoning of the court on the facts and the application of the law and authorities if any, to the facts. 11 8.3 Dato Syed Ahmad ldid in Writing of Judgments1 : A Practical Guide for Courts and Tribunals, 2011 edition 1 at page 49 of which states as follows: (underlining ours). "The decision must show the parties that the Judge actually wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic ..... the .... opinions of parties in a case should not be copied verbatim and adapted to the Judgment of the court. It is not just acceptable for a Judge to mention in his judgment that he agrees with the submission of a party and he has nothing to add. A Judge should tower above the parties and their Counsel by applying some level of judicial reasoning logic in evaluating a case .... 11 (underlining ours for emphasis). 8.4 It is trite that in this appeal, we are called to interfere with and set aside findings of fact, on the principle that they are either perverse or not supported by the evidence placed before the Court. We are also called upon to re-hash the basic principle of the burden of proof, resting on the Plaintiff, or in this case, the Complainant, before any orders or judgments are made in favour of the Plaintiff. 8.5 Although the Appellant has advanced three grounds of appeal, which have been stated in paragraph 4 above, we are of the considered view that pg. J 8 determination of this appeal, will rest on the fundamental issue of the burden of proof. 8.6 The Respondent, (complainant in the Court below), confirmed that she was employed on a permanent contract. The contract can be seen at pages 16 to 22 in her supporting affidavit. A copy of the contract was also attached to the Appellant's Affidavit on pages 39 to 45. The contract was duly attested by the Labour Office. 8.7 In her affidavit, she spoke of events that led to a disciplinary hearing and found her wanting. She has exhibited the letter to show cause, her exculpatory letter, the Minutes of the disciplinary hearing, the letter seeking losses occasioned to the Appellant company dated 25th January 2021. All of these were ignored or overlooked by the Court below, who was still able to make satisfactory findings of fact that the Respondent was owed a severance package and 18 leave days. 8.8 As noted, the Appellant, did not appear at the hearing of the Complaint, and in as much as the lower Court was entitled to proceed in its absence, it is the findings made, in the absence of any such supporting evidence that leave us of settled mind, that we must, interfere with the said findings. 8.9 There is a plethora of authorities in our jurisdiction on when an appellate court may reverse findings of fact. The cases of Wilson Masauso Zulu vs Avondale Housing Project Limited 2 and Susan Mwale Harman vs Bank of Zambia 3 have firmly established the principle that an appellate court will pg. J 9 reverse findings of fact made by the trial judge where the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts or that they were findings which on a proper view of the evidence, no trial court acting correctly could reasonably make. 8.10 In the case of Amchile Import & Export Limited and Others v Ian Chimanga (T/A Tawana Business Ventures) and Another 4 , Malila JS, as he then was, restated the Supreme Court's position as follows: "To succeed, a party urging an appellate court to reverse findings of fact by a trial court, must demonstrate that the trial court made findings which were perverse or in the absence of relevant evidence, or upon a misrepresentation of facts, or that on a proper view of the evidence before the court, no trial court properly directing its mind to it could make those findings. 11 8.11 The Appellant placed reliance on the case of Kapansa Mwansa v Zambian Breweries PLC 5 which held as follows: " ... the Supreme Court has always been slow to interfere with findings of a trial court that has had the benefit of hearing and seeing the witnesses, unless of course the Supreme Court is satisfied that the trial court, in its evaluation of the evidence, was wrong in principle or did not take into account certain evidence or did in fact take into account evidence it ought not to have. 11 pg. J 10 8.12 It is the Appellant's submission that the burden of proof in every civil matter connotes a party's duty to prove a disputed assertion and the Respondent being the alleger of this fact, she bore the burden of proof. It is their submission that the Respondent bears the burden of proof even where a Defendant had failed to defend himself . They argued that one cannot rely on a failed defence, to have a judgment entered in their favour and placed reliance on Zulu v Avondale Housing Project Limited 2 • 8.13 Based on the authorities above, we accept the Appellant's submissions on the ground that there was no proof laid before the lower court nor claims made, for the Court to have found on issues relating to long-term or permanent contracts, nor any evidence led to severance pay or any leave days allegedly owed to the Complainant, the Respondent herein. 8.14 We are of the considered view that even where the Appellant did not appear in the lower Court, the Court could only have found in favour of the Complainant if it was satisfied that her claims had been proved to the requisite standard . It is trite as has been established by the cases of Wilson Masauso Zulu v Avondale Housing Project Limited 2 , Khalid Mohammed v The Attorney General 6 and Clement H. Mweempe v The Attorney General and Others 7 , that the burden of proof, rests with the Plaintiff, such that even in the face of a failed defence, the Plaintiff is not entitled to a Judgment in its favour until it has discharged that burden. 8.15 From the evidence before us, the Respondent's claims were the following: pg. J 11 Leave days- there was no evidence or statements produced by her to show how or where the 18 day figure was arrived at. To the contrary, the detailed record filed by the Appellant, at page 52 of the Record of Appeal, confirmed that she had no leave days at the end of December 2020. We have no hesitation in setting aside this finding of the lower Court. 8.16 Her claim for separation package and or salary for the month of January 2021, cannot be sustained as it is also noted that in paragraph 6 of her affidavit, she confirms having tendered her resignation, by letter dated 8t h January 2021. There was no evidence placed before the lower Court, for it to be sustained by the Appellate Court, especially in the face of allegations of loss including her own exculpatory letter of 21st January 2021. See page 24 of the Record of Appeal. To the extent that she has also exhibited the disciplinary code, as an annexure to the contract of employment, and copies of letters exchanged between her and the Appellant company on page 27 of the Record of Appeal, the· lower Court misdirected itself in finding for her and awarding her with claims not pleaded or proved to the requisite standard. 8.17 All in all, we find for the Appellant and will allow the appeal. We also note that the order to send the matter for assessment, is equally devoid of any merit as a consequence of our determination above. The said Order is also set aside. We note with regret that the lower Court also awarded costs to the Complainant, against the settled principle that Parties bear their own costs in the Industrial division of the High Court, unless there was any pg. J 12 obvious misconduct, to be condemned in costs. Not seeing any such offending conduct, we equally set aside the order for costs . 9.0 CONCLUSION 9. 1 The appeal being successful, we allow it in its entirety and set aside the Judgment of the lower Court. 9.2 We make no order of costs. :::::---,, M. M. KONDOLO S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGE pg. J 13