ZESCO Limited v Isaac Mbewe & 25 Ors (APPEAL No. 52/2014; SCZ/8/352/2013) (30 March 2022) – ZambiaLII

L.b~ IN THE SUPREME COURT FOR ZAMBIA APPEAL No. 52/2014 HOLDEN AT LUSAKA SCZ/8/352/2013 (CIVIL JURISDICTION) BETWEEN: l}CQ~Zi[ APPELLANT <.-O(HlT op"· /flfJfC1,1r,y ZESCO LIMITED UM AR 2022 AND ISAAC MBEWE & 25 OTHERS RESPONDENTS Coram: Mambilima, C.J.; Kabuka and Chinyama, JJS. On 12th July, 2016 and on 30th March, 2022. For the Appellant: Mr. J. Ilunga - Chief Legal Officer, ZESCO Limited. For the Respondents: Mr. N. Ng'andu, Messrs Shamwana & Company. JUDGMENT CHINYAMA, JS, delivered the Judgment of the Court. Cases referred to: 1. Communications Authority v Vodacom Zambia Limited (2009) ZR 196 2. Galaunia Farms Ltd Vs National Milling Company Ltd (2004) Z.R. 1 3. Wilson Masauso Zulu Vs Avondale Housing Project Limited (1982) Z.R. 172 4. Ace Audit Expertise (Z) Limited vs Africa Feeds Limited, S. C.Z.Judgment No. 1 of 2009. 5. Georgina Mutale (Tl A G.M. Manufacturers Limited) v Zambia National Building Society S. C.Z. Judgment No. 5 of 2002. 6. Zambia Railways Limited v Pauline Mundia and Brian Sialumba (2008) 1 ZR287. 1. When we heard this appeal, we sat with the late Chief Justice, Mrs Irene C. Mambilima who regrettably passed away before judgment could be delivered. This judgment is that of the majority and we regret the delay in delivering it. 2. This is an appeal against the decision of Sichinga J, 1n the High Court at Lusaka that the Respondents (who were the Plaintiffs in the High Court) were entitled to unpaid and underpaid camping allowances and settling-in allowances from the Appellant (which was the Defendant in the court below). For convenience, we will continue to refer to the parties by their designations in the Court below in this judgment. 3. The background to this appeal is that the Plaintiffs instituted an action against the Defendant in the High Court by writ of summons which was amended on 8th January, 2009 seeking the following reliefs: a sum of K802,100,000 being the total sum due to the Plaintiffs from the Defendant in unpaid camping allowances for the period 21st November, 2003 to 31st July, 2005; a sum of K119,340,000 being the total sum due to the Plaintiffs from the Defendant as underpayment of camping allowances; a sum of KS0,990,227.34 being the total sum due J2 • to the Plaintiffs from the Defendant as underpayment of settling in allowances; interest; any other equitable remedy and costs. 4. In its amended defence, the Defendant denied that the Plaintiffs were entitled to any of the reliefs claimed. The sums claimed are in the non-rebased Kwacha denomination. 5. The Plaintiffs' case as disclosed in their pleadings and the oral evidence of PWl and PW2 in the court below was that they were employed by the Defendant Company as linesmen under the Mkushi Electrification Project initially on two-year contracts from 20th November, 2003 to 20th November, 2005 and thereafter on one year contracts up to 31st December, 2007. Their base station was Mkushi but they were deployed in the farming blocks in Kapiri Mposhi, Mkushi, Serenje and other towns in Central Province where they spent nights away from their homes. This entitled them to camping allowances in accordance with their conditions of service. 6. The Plaintiffs stated that from November, 2003 to 30th July, 2005 the Defendant had not been paying them their camping allowances. They only started rece1v1ng the camping allowances after July, 2005. This was at the rate of K50,000 J3 • per night which was later increased to K80,000 per night with effect from 20th April, 2006 although this increment started being paid in July, 2006. They were never paid their settling-in allowances and that the K910,000 each one of them was paid was subsistence allowance (paid for the initial seven days spent on duty away from home, at the beginning of the first contract, in accordance with the conditions of service). It was stated that although all the Plaintiffs were on contract and that some of them belonged to the Power Generation and Allied Workers Union of Zambia (POGAWUZ) and others to the National Electricity Supply and Allied Workers Union (NESA WU), ZESCO conditions of service (for permanent and pensionable staff) applied to them which entitled them to the allowances. 7. The Defendant's case, as can be discerned from the amended defence and the oral evidence of DWI and DW2, was that the Plaintiffs were engaged as temporary workers on a specific project and were all based in Mkushi where the project was to be implemented as shown in their letters of employment. It was stated that night allowance is paid to employees who J4 travel on company business outside their work station and spend a night or nights away from home. It was payable for the first 7 days or nights as a subsistence allowance and for the subsequent days or nights as camping allowance. 8. Regarding the issue of unpaid camping allowance, it was the Defendant's evidence that since the Plaintiffs' work station was Mkushi, they were not entitled to either subsistence allowance or camping allowance unless they travelled from the station and spent nights away. In any case, that employees that were entitled were duly paid as shown in the payment schedules exhibited in the Defendant's bundle of documents (now part of the record of appeal before us). There was no evidence that the Plaintiffs had travelled and spent nights away from their station. 9. On the issue of underpayments, the Defendant's evidence was that for the period 1st April, 2006 to 31st July, 2006 POGAWUZ and NESAWU negotiated camping allowances at KS0,000 and KS0,000 per night, respectively. Some of the Plaintiffs belonged to POGAW UZ while others belonged to NESAW U. Employees would be entitled to the rate of camping allowance JS according to what was negotiated for by the union to which the employee belonged. Pay statements for some of the Plaintiffs were exhibited to show the union to which the respective Plaintiff belonged. It was stated that the Plaintiffs had not proved the union to which each one of them belonged at the material times. Therefore, that they were not entitled to any underpayment for camping allowances. 10. On settling-in allowance, the Defendant stated that it was only paid to its permanent and pensionable employees on first appointment upon confirmation of employment after completing probation. The Plaintiffs, in this case, were not permanent and pensionable employees. Their fixed term individual contracts did not provide for payment of settling in allowance. It was only when the Plaintiffs entered into the second contracts that a new clause was introduced to the effect that all employees were entitled to other conditions of service enjoyed by permanent and pensionable employees in ZESCO. They were paid all their dues in accordance with their respective contracts. J6 11. The learned trial Judge considered the evidence and made his determinations. 12. On the claim for unpaid camping allowances, the learned Judge was of the view that there was hardly any dispute that the Plaintiffs were entitled to the allowance based on the Defendant's own testimony that if any of the Plaintiffs belonged to POGAW UZ, and spent a night out of the station, they would be entitled to the allowance at KS0,000.00 per night. Therefore, that the Defendant was "(e)stopped from denying that the Plaintiffs were working out of station" and that in principle the Plaintiffs were entitled to be paid camping allowances "which amount would be assessed upon ascertaining and verifying internal checks". 13. Regarding the claim for underpayment of camping allowances, the learned Judge found that the evidence on record proved that the Plaintiffs or at least some of them had been members of POGAW UZ, which Union negotiated an increased camping allowance of KS0,000.00 per night for its members. The learned Judge upheld "this claim in principle subject to a J7 verification exercise for each plaintiff to show he was a member of POGA WUZ'. 14. As regards settling-in allowance, the learned Judge found that this allowance was not excluded from the conditions of service applicable to the Plaintiffs as there was no contradiction between the Plaintiffs' contracts and the conditions applicable to permanent and pensionable employees. The learned Judge upheld the claim. 15. Dissatisfied with the decision by the High Court, the Defendant appealed to this Court on five grounds of appeal, namely, that1. The learned trial judge erred in law and fact when he held that the Plaintiffs were entitled to payment of camping allowance for the period in dispute without any evidence on record to show that the Plaintiffs did in fact spend nights outside their base station of Mkushi during the aforesaid period. 2. The learned judge misdirected himself in law when he held that the Defendant is estopped from denying that the Plaintiffs were working out of station as the burden to prove the same throughout the proceedings rested on the Plaintiffs. 3. The learned judge erred in law and in fact when he held that the Plaintiffs were entitled to the claim for underpayment of camping allowances from the 1st April to 31st July, 2006 solely on the strength of the fact that some of the Plaintiffs belonged to POGAWUZ during the aforesaid period as proof of the underpaid sum is a prerequisite for the claim of underpayment herein. J8 4. The learned judge erred in law and in fact when he overlooked the first contract of employment for the Plaintiffs and placed his reliance for the award of settling-in allowances herein on the document on page 13 of the Plaintiffs' Bundle of documents which was in fact the second contract of employment. 5. The learned judge erred in law when he further referred the awards for camping allowances to the Defendant's (Appellant herein) internal auditors for assessment and verification as the act is an indication that the Plaintiffs failed to discharge their burden of proof and were not entitled to judgment." 16. In support of the appeal, Counsel for the Defendant, Mr. Ilunga, relied on the filed Heads of Argument. 17. In support of Ground 1, Mr Ilunga submitted that the entitlement to camping allowance arose as and when one spent a night outside the work station. There was no dispute in the Court below that the work station for the Plaintiffs was Mkushi and that the contractual basis for payment of camping allowance was provided in clause 11 of the first contract of employment of November 2003 given to each employee which reads - When travelling on company business with prior authority of the Company, the Employee shall be entitled to Travel Subsistence Allowance facilities as may be prescribed by ZESCO Limited from time to time. Counsel submitted, therefore, that the Plaintiffs needed to tender as evidence, claim forms signed by their supervisor at J9 the site which were submitted to the Defendant and not paid out. Alternatively, the Plaintiffs could have called as a witness the supervisor to give evidence confirming that he had, during the period in question, authorised them to work and spend nights outside their base station of Mkushi and the Defendant had not paid the claims. It was, accordingly, contended that on a proper view of the evidence before him, the learned trial Judge could not have arrived at the conclusion that the Plaintiffs were entitled to unpaid camping allowances which he directed to be assessed and verified by the Defendant's internal auditors. On the premise of the decision 1n Communications Authority vs Vodacom Zambia Limited1, we were urged to reverse the leaned trial Judge's finding that the Plaintiffs were entitled to camping allowance for the stated period. In the case cited, it was held thatThe appellate 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 a proper view of the evidence, no trial Court acting correctly, can reasonably make. 18. With regard to ground 2 which attacks the learned trial Judge's holding that the Defendant is estopped from denying JlO that the Plaintiffs were working out of station, it was submitted that it is an established principle that 'he who alleges must prove.' Further, that the principle of estoppel can be invoked where one has conducted himself in a manner that suggests that a particular state of affairs is settled. As authority, the case of Galaunia Farms Ltd Vs National Milling Company Ltd2 was cited in which it was held thatThe basis of estoppel is when a man has so conducted himself that it would be unfair or unjust to allow him to depart from a particular state of affairs, another has taken to be settled or correct. It was argued that the record will show that there was no evidence before the trial Court that the Defendant conducted itself in a manner that would suggest that the Plaintiffs were entitled to camping allowances for the entire duration of their contract. To the contrary, the evidence before the Court, at pages 156 to 172, Volume 1 of the Record of Appeal, was that the Plaintiffs did 1n fact receive subsistence/ camping allowances between 21st November 2003 and 31st July, 2005 as and when they were required to work outside their base station. Therefore, that the Defendant expected, at the very Jl 1 least, the Plaintiffs to adduce evidence before the trial court in order for the claim of unpaid camping allowances to be sustainable. To buttress this argument, the Defendant cited the case of Wilson Masauso Zulu v Avondale Housing Project Limited3 where it was held that: "a plaintiff who fails to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case". We, were accordingly, asked to reverse the findings of the lower Court as contended in ground 2 of the appeal. 19. As regards ground 3, it was submitted that the learned trial Judge misapprehended the facts before him when he awarded the Plaintiffs underpayment of camping allowances also to be assessed and verified by the Defendant's internal auditors. It was submitted that while it is granted that employees who subscribed to POGAW UZ had their camping allowances adjusted upwards, there was no proof that the Plaintiffs subscribed to that Union during the period 1st April, 2006 to 31st July, 2006; or that they spent nights outside their base station during this period and they were paid K50,000.00 as opposed to KS0,000.00 per night during the said period. It was Jl2 contended that it was a misdirection for the learned Judge to grant the relief under this head solely on the basis that some of the Plaintiffs subscribed to POGAW UZ during the stated period. It was submitted that this finding was arrived at upon a misapprehension of facts. We were urged to reverse the finding in line with the principle reiterated in the case of Ace Audit Expertise (Z) Limited v Africa Feeds Limited4 regarding when an appellate Court may interfere with findings of fact made by a trial Court. 20. In support of ground 4, the submission was that there was no provision in the initial two-year contracts of employment relating to settling-in allowances as shown at pages 199 to 312, Volume 1 of the Record Appeal. It was contended that the learned Judge erroneously relied on clause 12 of the Plaintiffs' second contracts of employment (at pages 367 to 403, Volume 1 of the Record of Appeal) for the period 21st November, 2005 to 21st November, 2006 which extended to the Plaintiffs the terms and conditions of service applicable to permanent and pensionable employees of the Defendant Company. The said clause stipulated thatJ13 "OTHER CONDITIONS These shall be in accordance with the prevailing conditions applying to all permanent and pensionable employees in so far as they do not contradict the terms described in this contract. In the event of a contradiction the terms of this contract will take precedence." (See also page 695, Volume 2 of the Record of Appeal.) 21. It was submitted that settling-in allowance was payable on first appointment and upon confirmation as permanent and pensionable employees after probation. In this vein, we were referred to Clause 35 of the Collective Agreement between the st Defendant and POGAW UZ covering the period 1 April, 2006 t to 31s March, 2008 reflected at pages 516 to 555, specifically at page 543, Volume 2 of the Record of Appeal, where it was stated that- "35.1 An employee shall be entitled to a Settling-In Allowance of 10% of the annual basic salary on first appointment. 35.2. This allowance shall be paid after an employee has served his/her probation period and confirmed as Permanent and Pensionable Staff of the Company." The Defendant, therefore, prayed that the award of settling-in allowance at 1 O°/ci of annual basic salary to the Plaintiffs (who were not covered by the provision when they entered into the first contracts) be set aside as it has no basis. J14 22. Regarding ground 5, the thrust of the submission was that the fact that the learned Judge referred the unpaid and under paid camping allowances to assessment and verification by the Defendant's internal auditors is testimony that the Plaintiffs had failed to discharge their burden of proving the claims. It was contended that had the learned Judge been convinced that the Defendant was liable to pay camping allowances, the matter would have been referred to the Deputy Registrar for assessment as required by law. We were urged to apply the holding of this Court in Georgina Mutale (T / A G.M. Manufacturers Limited) v Zambia National Building Society S.C.Z.J No. 5 of 2002 mutatis mutandis to the current case. In that case, this Court held that: "in the absence of specific evidence of the value of the loss, justice would have been better served by refe rring the matter to the Deputy Registrar for assessment of damages instead of giving a figure which bears no relationship to anything in particular in the case." Learned Counsel implored us to set aside the order by the court below that assessment and verification of Jl5 camping allowances be done by the Defendant's internal auditors as the same is not supported by law. 23. Responding to the appeal, Counsel for the Plaintiffs, Mr. Ngandu relied entirely on the filed Plaintiffs' Heads of Argument. 24. In opposing ground 1, Counsel submitted that there is clearly no dispute between the parties that the Plaintiffs, as part of their conditions of service, were entitled to a camping allowance which is a form of subsistence allowance which arose after the first seven (7) days that an employee spent out of the station. It was contended that there was no evidence led by the Defendant Company disputing the assertions by PWl that from the date the Plaintiffs arrived in Mkushi, they were sent into the farming blocks where they actually spent their nights. Therefore, on the strength of that evidence alone, the trial Judge cannot be faulted for finding in favour of the Plaintiffs that they were entitled to camping allowances for the period claimed. 25. With regard to the Defendant's submission that the Plaintiffs ought to have produced claim forms in court to justify their Jl6 claim for camping allowances, Counsel for the Plaintiffs argued that claim forms by the employees of the Defendant Company, such as the Plaintiffs in the current case, were submitted to it. As such, it was its responsibility to tender the claim forms before the trial court as it did with the claims for st subsistence allowances for the period, 21 November, 2003 to th 28 November, 2003 as reflected at pages 313 to 344 supported by payment schedules at pages 156 to 171 of Volume 1 of the Record of Appeal. Mr Ngandu submitted that whilst the Defendant Company had paid subsistence st allowances for the period 21 November, 2003 to 28th November, 2003 and camping allowances after July, 2005, the Defendant only led evidence showing proof of payment of subsistence allowances. It was further submitted that as no evidence was led by the Defendant to show that camping allowances paid after July, 2005 were supported by camping allowance forms and PWl's assertions that camping allowance forms were submitted to the Defendant was not challenged, the learned Judge cannot be faulted for reaching the conclusion he made as it was not perverse or made in the Jl7 absence of any relevant evidence or upon a misapprehension of the facts. 26. In opposing ground 2, it was argued on behalf of the Plaintiffs that based on the evidence and submissions before the lower court as highlighted in the arguments relating to ground 1 above, the Plaintiffs did establish a prima facie case against the Defendant Company. They had discharged their burden of proof by showing that they spent nights in the farming blocks camping away from their station in Mkushi which evidence was not displaced by the Defendant. The case of Zambia Railways Limited v Pauline Mundia and Brian Sialumba6 was cited, in which it was stated regarding the standard of proof required in civil cases, as follows - "In the appeal before us, we are dealing with a civil case and not a criminal case. The standard of proof in a civil case is not as rigorous as the one obtaining in a criminal case. Simply stated, the proof required is on a balance of probability "as opposed to beyond all reasonable doubt in a criminal case". The old adage is true that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable." It was submitted that from their letters of employment shown at pages 173 to 196 and the claim forms at pages 313 to 344, Volume 1 of the Record of Appeal, we should note that the Jl8 Plaintiffs were employed as linesmen and their work involved constructing overhead lines in the farming blocks away from their station in Mkushi. Therefore, that the very nature of their employment with the Defendant Company demanded that they carry out their duties away from their work station at Mkushi. As such, the only conclusion the learned trial judge could make on the evidence before him was that the project could not have been executed had the Plaintiffs not spent nights in camps outside their work station. 27. Regarding ground 3, it was submitted that the Plaintiffs have already brought to light the nature of their work which involved performing duties away from their station and that since they provided proof of their membership with POGAW UZ during the period, 1st April, 2006 to 31st July, 2006 as shown at pages 706 to 731, Volume 2 of the Record of Appeal, there was no mistake or misapprehension of the facts on the part of the learned trial judge as he made a correct finding of fact on the basis of the evidence before him. As such, there are no grounds upon which we can reverse the finding by the trial Judge. J19 28. Coming to ground 4, it was submitted that there is no dispute between the parties that the Plaintiffs' first contracts of employment did not provide for settling-in allowances. However, that as has been pointed out by the Defendant in its Heads of Argument, Clause 12 of the second contracts t st executed for the period 21s November, 2005 to 21 November, 2006 extended the application of the conditions of service for permanent and pensionable employees to the Plaintiffs. One of those conditions of service related to entitlement to settling-in allowance. 29. It was submitted that the allowance was provided for in Clause 35 of the Collective Agreement between the Defendant Company and POGAW UZ referred to in paragraph 21 above. It was argued that there was no conflict between the contracts of employment and the conditions of service for the permanent and pensionable employees and that this was confirmed by DWI who said (at page 898, Volume 3 of the Record of Appeal) that "yes, I agree as long as permanent and pensionable conditions applied to an individual he was entitled to settling-in allowance." Further, that the Defendant had admitted in its J20 defence to the Plaintiffs' pleading in paragraph 6 of the amended Statement of Claim that in addition to those in the contracts they were entitled to other conditions of service stated in the Collective Agreement between the Defendant and NESAWU as though they were permanent and pensionable employees. It was submitted, accordingly, that the Defendant Company is thus precluded from excluding the application to the Plaintiffs, of the conditions of service for permanent and pensionable employees contained in the Collective Agreements. 30. Counsel for the Plaintiffs further submitted that at the time of their first employment with the Defendant Company, the Respondents were members of NESAW U and according to the Collective Agreement, for the period 31st July, 2002 to 31st July 2004, between the Defendant and NESAWU (at page 78, Volume 1 of the Record of Appeal), a Removal or Upset Allowance was provided for u:pder Clause 27 as follows- "Where the Corporation requires the employee to work permanently at a place, which he cannot reasonably attend to from his existing residence, the Corporation shall paya) The reasonable costs or removal of the employee's ordinary household effects subject to prior acceptance by the corporation of a quotation for the cost and J21 b) An upset allowance of 10% of the basic annual salary. The employee may claim for damaged personal effects while in transit if proven beyond reasonable doubts. The rates shall be subject to review from time to time." (Emphasis supplied). 31. In addition, under the Collective Agreement between the Defendant and NESAWU, from 1st August, 2004 to 31st July, 2006 (at pages 93-94, Volume 1 of the Record of Appeal), the Clause on Upset Allowance reads as follows- "When the Company requires an employee to transfer from one location to another, it will meet the following costs- (i) Removal expenses for the employee, his family, and household effects by road, unless management specifies otherwise; (ii) Payment of an Upset Allowance equivalent to 10% of one's annual basic pay which will be paid only after the move has taken place. (Tax will be borne by the Company) (iii) No Upset Allowance shall be paid for self-requested and disciplinary transfers." It was submitted out that the Upset Allowance referred to in the NESAW U collective agreement and the Settling-in Allowance referred to in the POGAWUZ collective agreement are both paid upon the relocation of an employee at 10% of the basic salary. Therefore, that they are one and the same, the only difference being in the nomenclature employed in the collective agreements relating to the two Unions which the Plaintiffs were members of at given points in time. Further, J22 that if this were to be the case, then by the Defendant's own admission, an amount of 10% of the basic annual salary was to be paid to the Plaintiffs at the time of their engagement in 2003, which is equivalent to the same upset allowance referred to in the Collective Agreement between the Defendant and NESAWU. To buttress the submission, it was pointed out that the letters of employment indicate that the Plaintiffs were being relocated from Lusaka to Mkushi. Therefore, that, for purposes of this relocation, whether one refers to it as Upset Allowance or Subsistence Allowance, the fact remains that the 10% of the basic annual salary was to be paid and that this is what the trial court rightly awarded to the Plaintiffs. 32. As regards ground 5, the Plaintiffs' submission was that the trial court cannot be faulted for, in principle, finding in favour of the Plaintiffs for the unpaid camping allowances from 21st November, 2003 to 31st July, 2005 as well as underpayment of camping allowances from 1st April, 2006 to 31st July, 2006 as the Plaintiffs had discharged their burden of proof. It was submitted that the directive that the Defendant's internal auditors assess and verify the claims was purely for J23 • convenience and had nothing to do with and had no bearing on the decision to make the award itself. In support of the arguments, Counsel for the Plaintiffs cited Order 37 / 1 of the Rules of the Supreme Court 1965 (White Book), 1999 Edition where under it is provided- "1. Assessment of damages by Chancery or Queen's Bench Master ( 1) Where judgment is given in the Chancery Division or the Queen's Bench Division for damages to be assessed and no provision is made by the judgment as to how they are to be assessed, the damages shall, subject to the provisions of this Order, be assessed by a Master, or, in an Admiralty cause or matter, by the Admiralty Registrar, and the party entitled to the benefit of the judgment may, after obtaining the necessary appointment from the Master and, at least 7 days before the date of the appointment, serving notice of the appointment on the party against whom the judgment is given, proceed accordingly." (Emphasis added). From the above, Counsel submitted that the directive by the trial Judge is supported by the law contrary to the proposition by the Defendant's Counsel and that it is not always mandatory for assessment to be undertaken by a Deputy Registrar. We, were accordingly, urged to dismiss the ground of appeal and ultimately, the entire appeal with costs to the Plaintiffs. J24 33. The foregoing were the grounds of appeal and arguments in this appeal. We are grateful to both Mr Ilunga and Mr Ngandu for their submissions. 34. Although the Defendant has raised five grounds of appeal, the issues to be determined are, in our view, not different from those that were before the High Court, namely, (i) whether the Plaintiffs are entitled to camping allowances for the period November, 2003 when they got employed to July, 2005 after which they claim to have started receiving the allowance; (ii) whether the Plaintiffs were underpaid camping allowances for the period April, 2006 to July, 2006; and (iii) whether the Plaintiffs are entitled to settling-in allowance. It is our view that a resolution of these issues will in turn resolve the issues raised in the appeal because, essentially, the first issue encapsulates what is being contended in the first, second and fifth grounds of appeal while the second issue relates to what is contended in ground three and the third issue, what is contended in ground four. 35. With regard to the issue whether the Plaintiffs were entitled to camping allowances, the Defendant does not deny that this J25 was a condition of service available to them. Employees of the Defendant such as the Plaintiffs, were entitled to payment of subsistence allowance for the initial seven days/nights spent working away from home and thereafter, camping allowance for the subsequent days. The Defendant did not deny that the Plaintiffs were so entitled, only that to claim it they had to show that they had earned it by showing proof of claim forms signed by the supervisor or confirmation from the supervisor that they had indeed been assigned to work and spent nights working away from the base station. The question, therefore, is: did the Plaintiffs travel and work away from their station at Mkushi in the stated period to entitle them to payment of the allowance? 36. According to PWl the Plaintiffs were sent into the farming blocks from the day that they reported for work. That this is what happened is supported by the fact that the Plaintiffs were in fact paid their subsistence allowance for the first seven days as shown in the subsistence allowance payment schedule at page 156 of the record of appeal supported by the claim forms exhibited at pages 313 to 344 of the record of appeal in J26 accordance with the condition of service we have referred to above. 37. The follow-up question, however, is: did the Plaintiffs remain working outside the station for the rest of the period as claimed? 38. Mr Ilunga's position is that there is no evidence that the Plaintiffs continued to work outside the base station in the manner claimed. He argued that the Defendant was not averse to paying subsistence and camping allowance claims where the employees were entitled as shown in the several payment schedules exhibited in the record of appeal. The Plaintiffs' response is that they continued to work outside the base station and that claims for camping allowance where submitted to the Defendant which should be the one to avail them in the same manner as the documents pertaining to the other payments for subsistence/camping allowances were availed. 39. We have had the opportunity of looking at the payment schedules at pages 156 to 172, produced by the Defendant, in the record of appeal. The picture they present is that at J27 various points during the tenure of the Plaintiffs' contracts subsistence and camping allowances were being paid to its employees who included the Plaintiffs as early as November, 2003 through to 2005. 40. For instance, subsistence allowances were paid to the following Plaintiffs: Isaac Mbewe, Yotam Mwelwa, Delies Kabwe, Suzah Mulunda, Kelvin Lubemba, Major Nyirenda, Lysat Mwanza and Levy Nyirongo. The payments were for nights spent working away from the station (see payment schedules at pages 159, 161, 162, 164, 166, 167 and 169 in the record of appeal). The dates covered spanned days in 2004 and 2005. 41. Further, camping allowances were being paid to all the Plaintiffs except Kelvin Lubemba whose name did not appear among the recipients of the allowance as shown by the payment schedules at pages 162, 169 and 170 in the record of appeal. The dates covered spanned days in 2004 and 2005. 42. Arising from the foregoing payments, the claim by the Defendant that employees used to be paid their allowances as and when they worked outside their base station is supported J28 by the facts. Accordingly, the allegation that the Plaintiffs continued to work away from base station cannot be sustained. It is not enough, in the face of the evidence availed by the Defendant, to simply claim that the Plaintiffs worked away from their base station when the evidence of the Defendant which was not challenged or contradicted shows that payments were being made as need arose. Indeed, the fact that some of the Plaintiffs received subsistence allowances at different points during the tenure of their contracts can only mean that the Plaintiffs were not continuously working away from their base station. 43. To illustrate, the payment schedule at page 162 in the record of appeal shows that Chibeka Sydney, Mulunda Suzah, Ndalama Chansa J, Kabwe Dellies and Kingsley C Mwamba (part of the Plaintiffs in this matter) were paid camping allowance for seven nights spent working away from home between 11th October, 2004 and 18 th October, 2004. In the same payment schedule, Dellies Kabwe was paid subsistence allowance for one night spent away from base station between 14 th September, 2004 and 15 th September, 2004 while Isaac J29 Mbewe was also paid subsistence allowance for three nights spent away from base station between 27th October, 2004 and 30th October, 2004. These payments and similar others received by some of the Plaintiffs confirm that the Plaintiffs' absence from their base station was not continuous in the manner depicted. In this vein, it is clear to us that the learned trial Judge did not fully consider the evidence before him. Had he done so, he could not have arrived at the conclusion that the Plaintiffs were entitled to unpaid camping allowances for the entire period from November, 2003 to 31st July, 2005. On the contrary, the evidence supported the Defendant's position that the Plaintiffs did in fact receive subsistence/camping allowances as and when they were required to work outside their base station. They were receiving subsistence/camping allowances well before July, 2005 and not only after, as claimed. If there were any periods that they so worked and were not paid, the onus lay on the Plaintiffs to establish on a balance of probability that they had so worked. This means adducing evidence that would satisfy the Judge that the event in contest is more likely than not to have happened. This J30 requires some evidence to tip the finding in favour of the party alleging. 44. The evidence before the trial Court did not meet the standard. Certainly, the facts as we have unravelled them cannot support the conclusion that the Defendant were estopped from denying that the Plaintiffs were working out of their base station for the duration of their contracts. It was accordingly a misdirection for the trial Court to direct that the unpaid camping allowances be assessed and verified by the Defendant's internal auditors. In the result, we agree with the Defendant that the finding by the learned trial Judge should be reversed. In short, we find merit in the first, second and fifth grounds of appeal. We uphold the three grounds and dismiss the Plaintiffs' claim for unpaid camping allowance. 45. Next is the issue whether the Plaintiffs were underpaid camping allowances for the period April, 2006 to July, 2006. A perusal of the record of appeal shows that during the period in contest, that is to say, April, 2006 to July, 2006, there was in place a collective agreement entered into between the Defendant and NESAW U (which was operative from 1st August, J31 2004 to 31st July, 2006 - see pages 83 to 116 in the record of appeal). The rate of camping allowance was stated under clause 3.5. For an employee in the salary grade RSI to RS5 it was K50,000.00 per night while those in salary grade RS6 to RS9 it was K60,000.00 per night (at page 94 in the record of appeal). There was also a collective agreement between the Defendant and POGAWUZ (operative from 1st April, 2006 to 31st March, 2008) wherein the rate was equally stated 1n clause 25. Here the distinction was not in terms of employee grades but facilities. For camping with facilities, the rate was K65,000.00 and for camping without facilities, the rate was K80,000.00. 46. The Defendant's argument is on three points i) that there is no proof that the Plaintiffs subscribed to POGAWUZ during the period at issue to entitle them to the rate of K80,000.00; ii) that there is no proof that the Plaintiffs spent nights working outside their base station during that period; and iii) that there is no proof, in fact, that they were paid camping allowance at the rate of K50,000.00 per night instead of K80,000.00 per night during the stated period. J32 4 7. The Plaintiffs rely on the pay statements or payslips exhibited between pages 706 and 731 as proof of the fact that they subscribed to POGAWUZ which entitled them to the rate of KS0,000.00 per night. There was no response to the argument that the Plaintiffs did not prove that they worked away from their station during the material period although it is obvious that the Plaintiffs rely on their earlier argument that the fact that they were working away from base station was a foregone conclusion based on the project for which they were employed to execute electrification in the farm blocks and other areas. There was also no response to the argument that there was no proof that they were in fact paid K50,000.00 on the basis of which they were claiming the difference. 48. We did look at the pay statements or payslips referred to by the Plaintiffs to try and establish the Union to which each Plaintiff subscribed during the material period. They cover only seven of the Plaintiffs subscribing to POGAW UZ viz: Davy Kayombo (April and May, 2006), Bruno Katongo (April and May, 2006), Ared Chakota (June, 2006), Lewis Kaluba (May, June and July, 2006), Dimas Kapapa (May, 2006), Moses J33 Mbewe (May, 2006) and Eddie Kasongo (June, 2006). The foregoing are at pages 706 to 710, 716, 717, 719 to 721, 727, 730 and 731 in the record of appeal. There were other pay statements in the record of appeal (see pages 570, 575, 584, 602 617, 628, 646, 650, 655, 669, 679, 710 and 717) belonging to other Plaintiffs but these related to the year 2005 and show that they were subscribing to NESAWU. 49. From this evidence, it cannot be said that the Plaintiffs had proved that all of them were subscribing members of POGAWUZ during the period at issue. For those whose pay slips show subscriptions, they do not cover the entire period involved except only in the case of Lewis Kaluba. 50. We are aware of the tendency, in cases involving more than one plaintiff or defendant, to present a sampling of the evidence as being representative of the other plaintiffs or defendants. While this is acceptable in a proper case and where there is no dispute on such evidence, most cases, however, require evidence relating to the peculiar circumstances of each plaintiff or defendant. Failure to provide such evidence might react against the individual plaintiffs or J34 • defendant's issue in contention or case as circumstances may be. 51. The fact that in civil cases the standard of proof is lower than in criminal cases does not mean that a plaintiff can relax in proving the elements of his/her case. Just like in criminal cases, every element that is part of the case must be proved for each plaintiff. Only that the standard is less exacting than in criminal cases. As we have pointed out in paragraph 43 above, all that is required is to establish the case to a point where the Court is able to say it is more probable than not to have happened. Where there is completely no evidence to enable the Court to accept the probability, the issue or case cannot be said to have been proved on a balance of probability. 52. In the present case, contrary to the submission by the Plaintiffs, and except for Lewis Kaluba, the pay statements fell short of proving fully their membership in POGAW UZ during the entire period 1st April, 2006 to 31st July, 2006. On the foregoing basis, we would agree with Mr Ilunga that there was no proof that the Plaintiffs were subscribing to POGAW UZ J35 • subject to what we have stated about Mr Kaluba. For the Plaintiffs whose pay statements were not produced, their journey in the quest for underpaid camping allowance would appear to end here. For Mr Kaluba, the question which still has to be answered (even for the other Plaintiffs, had their case not floundered on the first point) is whether there was proof that they spent nights working a\.vay from their station. 53. Like we observed when dealing with the claim for payment of camping allowance for the period November, 2003 to 31st July, 2005, the Plaintiffs needed to avail evidence that they indeed worked away from station in the period 1st April, 2006 to 31st July, 2006. This is in view of the evidence of subsistence and camping allowances paid at various times which, as we have concluded, establish that the Plaintiffs were not always working away from station. According to the Plaintiffs, the nature of their work required that they perform their duties away from the station and were as such always away. This argument is not tenable in the face of the evidence of the subsistence/camping allowances that we have referred to. The Plaintiffs needed to avail evidence whether by way of J36 authorised claim forms or calling the supervisors that authorised them to work away from the station. That evidence is lacking on the record. 54. On the third and last point, it is obvious that there. was no evidence whatsoever that the Plaintiffs were being paid K50,000.00 camping allowance during the period in issue. The outcome of the three points raised, therefore, is that there is no basis for holding that the Plaintiffs were underpaid. 55. In view of the foregoing considerations, we are satisfied that there is merit in the third ground of appeal. 56. We turn now, to the question whether the appellants are entitled to payment of settling-in allowance. The evidence on record has shown that settling-in allowance was not a term of the first contract of employment which ran from November, 2003 to November, 2005. The collective agreements between the Defendant and NESAWU between 2002 and March, 2006 had no provision relating to the allowance until the one for April, 2006 to March, 2008 which incorporated the allowance in clause 35 whose text we captured in paragraph 21 above. A similar provision was made in the collective agreement J37 between the Defendant and POGAWUZ operative from April, 2006 to March, 2008. Clause 9.5 thereof provided for payment of settling-in allowance also to employees on first appointment after confirmation as permanent and pensionable staff. By virtue of clause 12 in the second contract of employment which extended all other conditions of service enjoyed by the Defendant's permanent and pensionable employees, the Plaintiffs became entitled to payment of settling in allowance as derived from the collective agreement executed between the Defendant and NESAWU/POGAWUZ. 57. As the two clauses in the NESAW U and the POGAW UZ collective agreements state, settling-in allowance was payable on first appointment, if we ignore the requirement to complete probation. The Plaintiffs were in their second contracts when the condition of service was introduced. The mischief behind the allowance is just as the title implies. It was meant to cushion the settling down of a new employee in a new environment. It is a stand-alone condition of service which is not comparable to upset allowance payable to employees upon relocation from one employment station to another as the J38 • provisions cited in paragraphs 30 and 31 above show. In this regard, therefore, since the condition did not exist in the first contract when the Plaintiffs were initially employed, it cannot be applied in retrospect. In the result, we find that the Plaintiffs are not entitled to the allowance. Therefore, the Defendants' fourth ground of appeal succeeds as well. 58. In sum the Defendant's appeal has succeeded on all the grounds of appeal. Accordingly, we set aside the judgment of the High Court. The successful party will have its costs in this appeal and also in the Court below. I. MAMBILIMA CHIEF JUSTICE ~ ··················~~. . .~• ............. J.K.KABUKA J. C~~AMA SUPREME COURT JUDGE SUPREME COURT JUDGE J39 .,