Sulmach Water Systems Ltd v Mould (SCZ 8 14 of 2000) [2001] ZMSC 89 (13 February 2001)

IN THE SUPREME COURT FOR ZAMBIA SCZ/8/14/2000 HOLDEN AT KABWE AND LUSAKA APPEAL NO. 76 OF 2000 (Civil Jurisdiction) BETWEEN: SULMACH WATER SYSTEMS LIMITED Appellant AND GRAHAM MOULD Respondent CORAM: NGULUBE, CJ, CHIRWA AND THE LATE MUZYAMBAJJS On 7th November, 2000 and 13th February, 2001 For the appellant - Mrs. W. Sithole - Mwenda, of Sithole - Mwenda and Company For the respondent - Mr. K. Shepande, of Shepande and Company JUDGMENT Ngulube, CJ, delivered the judgment of the Court. Our brother Muzyamba, JS who sat with us and who was to have written the judgment for the Court has since died and the judgment may now be treated as by majority. In the action, the respondent was the plaintiff and the appellant the defendant. The plaintiff sued his former employers - the defendant - to recover unpaid arrears of salary and certain other allowances. J2 He issued a specially endorsed writ under the old procedure and applied for summary judgment under Order 13. There was an affidavit in opposition which was to the effect that the plaintiff’s claims be diminished or extinguished by his detention of certain goods belonging to the defendant. The parties applied that the case be tried without pleadings, the affidavits standing as such pleadings. In addition, the defendant obtained a peremptory injunction ordering the plaintiff to deliver up the defendant’s specified goods, which were duly surrendered back. The plaintiff denied ever having been given a cooker and he did not hand back two short wave communication radios which were not on the original list claimed by the defendant. The plaintiff had kept the goods (which included a range rover motor vehicle) allegedly as security for his unpaid dues. After trial during which the learned trial Judge heard evidence and submissions, he found as facts not in dispute that the plaintiff was employed by the defendant as General Manager in August 1996; that the plaintiff’s salary was to be in three parts, namely a Kwacha salary of KI million per month; a dollar salary of USD 2000 per month and a 10% share of the net profit. It was also not in dispute that the plaintiff was given a personal-to- holder car. In addition, the defendant company was to pay for up to three servants of the plaintiff. On the items in dispute, the learned trial Judge J3 found that the employment terminated in September, 1997, not in October as claimed by the plaintiff so that only four months’ arrears fell to be awarded. However, the Judge found that the plaintiff was entitled to his arrears and allowances over the four month period plus an additional month’s pay in lieu of leave. The Judge rejected the plaintiff’s claim for the Kwacha salary to have been net of tax. He allowed a claim for electricity allowance which was actually being paid though not mentioned in the letter of employment. The counterclaim for the return of company property was raised in the form of an application for a peremptory injunction by way of an order for the immediate delivery up of the chattels listed. The Judge accepted a submission that compliance with that order folly discharged the counter­ claim and therefore made no further orders on those items. The defendant had claimed not only the return of the goods but certain self-assessed amounts in respect of loss of use of the car and of the cellular phone; and also for the dilapidation of the car to be set off against or to extinguish the plaintiff’s claims. The learned trial Judge considered that no further orders or awards should be made since each kept the other’s property, that is, the defendant kept the plaintiff* s money while the plaintiff kept the chattels. At the end of the day, the plaintiff was awarded judgment for K2,965,000=00 and USD 10,000 plus costs of the suit. J4 The defendant has appealed to this Court on a number of grounds. In the first, the defendant complains against the holding that compliance with the interlocutory injunction order discharged the counterclaim. It was argued that there was delay of several months in complying with the order; that not all chattels were returned; and that the vehicle was returned in a deplorable condition. Thus, so the submission went, there should have been damages for loss of use. In the case of property not returned, there was a cooker which the plaintiff denied ever having, a position accepted by the learned Judge. In the case of communication radios, these were not listed and a second Judge rejected an attempt to commit the plaintiff in respect of property being added to the list as the case progressed. We heard many arguments and submissions on either side. The order of injunction was peremptory and there was really nothing interlocutory about it. It was a final order for the immediate delivery up of the chattels in accordance with the prayer in the application that was made to the Court. As constituted and as presented therefore, the application did not invite the Court to go beyond the retrieval of the goods as would have been the case had there been constituted and pleaded a claim for the return of the goods or their value, coupled with a claim for damages for loss of use and any other claims as is flow being suggested. Much argument has been advanced in the J5 heads of argument about the requirement for injunctions to be obeyed promptly. The injunction here was not couched in prohibitory language; it was in effect an order for immediate delivery up and what we find surprising is that a party who has obtained such an order did not consider to take out an enforcement process such as a writ of delivery for the bailiffs to retrieve his goods if the opponent was taking long: See 1999 White Book, Order 45 Rule 4. The attempt to proceed by way of committal failed. Because of the summary way the action was constituted and presented (and without formal pleadings for that matter) it is not possible to criticize the learned Judge for accepting that once there was delivery up as requested and as ordered, there was nothing more to be done under that particular order. This ground of appeal cannot be entertained. The second ground argued complained that the learned Judge should not have allowed the claim for electricity allowance and leave pay since electricity and leave were not mentioned in the letter of employment. The submission was that the oral evidence should not have been permitted to vary the contract of employment as reflected in the letter. The record shows that the company paid the electricity bills; even the defendant’s witness (and it was he who had written the letter of employment) admitted this. Clearly, the letter was not exhaustive and the oral evidence was properly admitted as J6 evidence of how the parties actually performed the contract and conducted themselves. The leave pay falls to be similarly treated. It would be a most unusual contract which disallowed resting once in a while by way of leave. The learned Judge was not wrong to accept the oral evidence. There was a ground - which we considered to have been merely expletive - that the plaintiff had not discharged his burden of proof. The record speaks for itself in the admissions in the affidavits; in the documentary and the oral evidence. The learned Judge was satisfied on such evidence that the plaintiff had made out his case on a balance of probabilities. For our part, we can find nothing wrong on the record with the learned Judge’s determination. Having examined the written submissions and the oral arguments, we come to the conclusion that the learned trial Judge was not in error and that the appeal cannot succeed. It is dismissed with costs to be taxed if not agreed. M. M. S. W. Ngulube CHIEF JUSTICE. ........................................................ D. K. Chirwa, SUPREME COURT JUDGE.