Musonda Mutale v African Banking Corporation Limited (SCZ/8/05/2020) (13 January 2021) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA SCZ/8/05/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MUSONDA MUTALE APPLICANT AND AFRICAN BANKING CORPORATION LIMITED RESPONDENT Coram: Chinyama, JS in Chambers on the 19th May, 2020 and On the 4th June, 2020 and on the 13th January, 2021. For the Applicant: In Person For the Respondent: Mrs. N. Simachela, Messrs Nchito and Nchito Advocates RULING Cases referred to: 1. Kitwe City Council v William Nguni (2005) ZR 57 2. Chilanga Cement Pie v Kasote Singogo (2009) ZR 122 3. Western Excavating (ECC) Ltd v Sharp [1978) QB 761 4. Nigel Gibbs v Leeds United Football Club Limited [2016) EWHC 960 (QB) 5. WE Cox Toner (International) Ltd v Crook5 [1981) ICR 823 (EAT) 6. Genower v Ealing, Hammersmith Hounslow A.ff.A [1980] IRLR 297 7. Land Securities Trillium Ltd v Thornley [2005] IRLR 765 8. Bidvest Foods Zambia Limited and 4 Others v CAA Import and Export Limited, SCZ Appeal No. 56 of 2017 9. Minister of Home Affairs, Attorney General v Lee Habasonda Suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes, S.C.Z Judgment Number 23 of This is an application by way of summons supported by an e affidavit for leave to appeal against the judgment of the Court of Appeal dated 25th October, 2019. That judgment upheld the judgment of the Industrial Relations Court Division of the High Court (the IRC) that dismissed a complaint by the applicant (complainant at the time) against the respondent. The applicant then applied to the Court of Appeal for leave to appeal against its judgment. The Court, in a ruling dated 29th April, 2020, refused to grant the application e hence the application before me. The application is made pursuant to section 24 (b) of the Supreme Court of Zambia Act and Rule 50 (2), Supreme Court of Zambia Rules as read with section 13 of the Court of Appeal Act and Order XI Rule 1 (4) of the Court of Appeal Rules, 2016. R2 The background to this application, as shown in the judgment of the Court of Appeal, is that the applicant was employed by the respondent as Country Head of Corporate Banking on 1st April, 2015. In that position, he used to report directly to the respondent's Managing Director and the Head Corporate and Investment Banking and used to attend management committee (abbreviated "MANCO") meetings. Several months later, the respondent Bank undertook a restructuring which resulted in the creation of the position of Regional Head of Corporate and Investment Banking. Consequently, the reporting structure changed such that the applicant was no longer reporting directly to the Managing Director. The applicant felt that his contract of employment had been unilaterally changed. He was aggrieved and considered himself as having been demoted. The applicant filed a complaint against the respondent in the IRC alleging that he was unlawfully demoted and constructively dismissed from employment when his conditions of service were unilaterally changed by the respondent. He sought relief which included damages for wrongful and unilateral change of conditions of employment, unlawful demotion and constructive dismissal. There was also, R3 notably, a claim for compensation and payment for remedies provided under the laws of Zambia. The respondent, in its Answer denied that the applicant's conditions of service were unilaterally changed or that he was demoted in the manner alleged but contended that the applicant voluntarily resigned and, therefore, that he was not entitled to the relief sought. There was evidence that the applicant had written to the respondent suggesting a mutual separation based on the applicant's understanding of the restructuring exercise and the change in his reporting lines. The respondent did not accept the suggestion and stated that management saw no basis for a mutual separation as the applicant's fundamental role had not changed and that his e contribution to the Bank was greatly valued and it was believed that he would continue to add value to the institution. The applicant, however, again wrote to the respondent insisting on a mutual separation and stated that if the respondent did not agree with his proposal, he would consider his contract as having been terminated by the respondent. The respondent, apparently, remained adamant. R4 The learned trial judge in the IRC found the issues for his determination to be (i) whether the applicant was constructively dismissed and/ or (ii) whether the applicant was entitled to any of the remedies outlined in the Notice of Complaint. In considering that the applicant was constructively dismissed, the learned trial judge noted that the applicant had strongly maintained that he did not resign. Therefore, that since he did not resign, the circumstances of his separation from employment, bearing in mind the failed proposal for mutual separation, did not avail him the test required to sustain a finding for constructive dismissal as determined in cases such as Kitwe City Council v William Nguni1 and Chilanga Cement Pie v Kasote Singogo2 as well as the English case of Western Excavating (ECC) Ltd v Sharp3 . The trial judge further found that the applicant had failed to demonstrate that the respondent had committed a fundamental breach of the employment contract 1n implementing the reorganisation of the company in readiness for the acquisition of another Bank (Finance Bank). Further still, the learned trial judge did not accept the applicant's allegation that he was demoted as his RS remuneration package remained intact even after the restructuring. Consequently, the learned trial judge dismissed the applicant's claims and held that he was not entitled to the relief sought. The applicant then appealed to the Court of Appeal on four grounds which attacked the manner in which the trial judge had evaluated the evidence, that it was unbalanced and did not take into account the whole evidence before the court; that the variations made to the applicant's contract and conditions of service amounted to a demotion; that the learned judge glossed over the issues and did not adequately address them, this being in relation to the non-payment of the salary for two months during which the applicant waited for payment of his terminal benefits; and that the trial judge erred in law and fact when he held that the circumstances of the applicant's separation did not meet the test to sustain a finding for constructive distnissal. It is quite apparent, from the affidavit in support of the application before me, that the parties had filed written submissions in support of their respective positions at the appeal hearing in the Court of Appeal. Notable amongst these submissions were the R6 applicant's (appellant at the time) Heads of Argument as amended by consent of the parties on 14th February, 2019 as well as the appellant's Reply to the Respondent's Heads of Response dated 7th October, 2019. According to the applicant the latter arguments contained issues that were at the root of the appeal. After considering the parties' arguments in favour of and against the appeal, the Court of Appeal determined that the learned trial judge had identified all the key issues in the matter, namely: whether or not the appellant was constructively dismissed or demoted and, therefore, entitled to the remedies set out in the Notice of Complaint. It was stated that the trial judge had considered all the evidence and the submissions before it in a balanced manner; that since his contract did not specifically provide that he would be reporting to the Managing Director and that it did not provide for his membership to the MANCO, it could not be said that the appellant had been demoted; it was noted that the trial judge had reasoned that the Corporate Banking portfolio headed by the applicant (appellant at the time) continued to exist under the merged Corporate Banking and Investment department although he was required to report to the R7 Country Head as opposed to reporting directly to the Managing Director; on the issue of constructive dismissal, it was held that the appellant did not resign and he had not demonstrated that the respondent had fundamentally breached his contract of employment by unilaterally varying his terms and conditions of service and it was noted that the applicant was aggrieved with issues that were not part of his contract of employment. On the issue of the unpaid two months' salaries, it was held that this claim was not pleaded in the Notice of Complaint, otherwise that the court had addressed all the issues before it. It is against the foregoing that the applicant intends to appeal. The applicant has exhibited to the affidavit in support of this application the proposed Memorandum of Appeal containing eight grounds of appeal as follows: 1. The Court of Appeal erred in law and fell into manifest error, when it failed to take into consideration the Appellant's Reply to the Respondent's Heads of Response in arriving at its judgment, which raises a point of law of public importance. 2. The Court of Appeal's misdirection by failing to consider the totality of the appellant's arguments, raises a compelling reason for this appeal to be heard. RB 3. The Court of Appeal misdirected itself and, therefore, fell into grave error when it held that the Appellant's contract did not specifically provide for reporting directly to the Managing Director and Membership of MANCO and that the terms and conditions unilaterally varied were not part of the Appellant's contract of employment. 4. The Court of Appeal erred in law and fact and fell into manifest error when it held that a change in the reporting procedure cannot be considered to be a fundamental breach of contract when it was not contained in the Appellant's contract of employment. 5. The Court of Appeal misdirected itself, when it held at page J25 of the Judgment that the portfolio or department previously headed by the appellant continued to exist under the merged Corporate and Investment Banking Department. 6. The Court of Appeal erred in law and fact, when it held at page J30 of the Judgment that the Appellant did not resign from his employment. 7. The Court of Appeal erred in law and in fact, when it held at page J28 paragraph 6.15 of the Judgment that the Appellant had not substantiated his allegation that he was demoted. 8. The Court of Appeal erred in law and in fact, when it opined at page J31 paragraphs 6.25 and 6.26 of the judgment, that the Appellant did not plead for payment of two months' salaries on account of the delayed payment of his pension benefits following his separation from the employ of the Respondent and that the claim was vague, as it would not have given the learned trial judge an opportunity to understand what was being claimed. - R9 Based on the foregoing proposed grounds of appeal, the applicant has put up the following grounds in the summons why the application should succeed, that1. The intended appeal raises points of law, regarding procedural impropriety, illegality, unconstitutionality, violation of principles of natural justice and derogation from the Supreme Court binding precedents in the below Court's judgment, relating to whether it is appropriate for the Court of Appeal to: Deprive litigants of an opportunity to be fully heard, 1. contrary to the principles of natural justice. Circumvent its own rules under Order VIII Rule (1) 11. and (2) and Order X Rule 9 ( 1 7) in the determination of matters. Specifically, whether it was appropriate for the Court below to have (i) placed reliance on Heads of Argument rendered otiose, which were amended with leave of Court and; (ii) completely failed to consider the Appellant's Heads of Argument in Reply (which I understand to be referring to the appellant's Reply to RlO [the) Respondent's Heads of Response of 7th October, 2019) in arriving at its judgment. Violate the Zambia[n] Constitution, pursuant to 111. Articles 43, 44 and 49( 1) and CAP 5 section 5( 1) of the Laws of Zambia in arriving at its judgment. Whether the Court's Judgment is at all legal pursuant to Article 1(2) of the Constitution of Zambia, having breached its Articles 43, 44 and 49(1). 1v. Derogate from the judicial doctrine of stare decisis on Supreme Court well-entrenched and binding points of law, in at least 10 of its holdings. v. Cherry-pick submissions at its discretion, contrary to the Court's rules and to the detriment of litigants. That the public is, therefore, keen to know the fate of all their submissions duly filed into the Court of Appeal, in the final determination of legal disputes. Whether litigants' full arguments and submissions will at all be considered or completely ignored, as was the case in this matter. Rll 2. Further, the intended appeal raises novel issues arising from the judgment of the below court, on well-settled legal principles in England and Wales relating to whether: Following a fundamental breach of an employment 1. contract by the employer, if the employee offers the employer an opportunity to remedy the breach via mutual separation and that in doing so, ifhe would then waive the breach and thereby affirm the contract. The adverse unilateral variation and fundamental 11. breach of a job description by the employer, 1s a fundamental breach of an employment contract. Which issues have far reaching jurisprudential and practical value in the administration of justice by having a bearing on future judicial decisions not only on the issues raised in this appeal but also on the broader question of the doctrine of stare decisis. It is therefore, of great public importance and interest that the Supreme Court hear and determine the intended appeal. R12 3. The Court of Appeal, 1n adjudicating upon the appeal, omitted to consider the Appellant's Reply to [the] Respondent's Heads of Response duly filed into court on the 7th day of October, 2019 which omission adversely prejudiced the Appellant's appeal and led to a fatal judgment before the below court, since the very arguments that were never considered lay at the core of the substance of the appeal. This is another compelling reason for the court to grant leave to appeal to the Supreme Court to review all the issues including arguments that were omitted by the Court of Appeal; and 4. The intended appeal as per the grounds disclosed in the draft Memorandum of Appeal exhibited in the affidavit in support of this application has high prospects of success. The affidavit filed in support of the summons largely contains arguments and submissions as is evident in its paragraphs 6 through to 29 which is not permissible in law (Order 41 rule 5 RSC) and such arguments and submissions are liable to be expunged and I, accordingly expunge them retaining only statements of fact that can R13 be gleaned from the said affidavit. These facts are, accordingly, that the Court of Appeal refused to grant leave to the applicant to appeal against its judgment. It was averred that the applicant is desirous to appeal to the Supreme Court against the said judgment. Other facts averred alleged that the Court of Appeal relied, in its judgment, on the Heads of Argument that had been amended by consent of the parties; that the Court of Appeal did not consider the applicant's submissions in the nature of his Appellant's Reply to Respondent's Heads of Response. It is on the foregoing facts and grounds that the application is hinged. The applicant's written and oral arguments in support of the grounds in support of the application which I find to be quite convoluted amount to the following- !. That the intended appeal meets the threshold set out in section 13(3) (a), (c) and (d) of the Court of Appeal Act No. 2 of 2016 because the Court of Appeal judgment is fraught with unconstitutionality and illegality for contravening some provisions in the Constitution of Zambia (some of them wrongly cited such as Articles 43, 44 and 49 which have nothing to do R14 with the issues in contention); and procedural impropriety for violating rules of procedure provided in the Court of Appeal Act. All these arising from what the applicant stated as the Court of Appeal's reliance on Heads of Argument that had been rendered invalid upon being amended as well as the alleged failure by the said Court to consider the applicant's Appellant's Reply to [the] Respondent's Heads of Response. 2. That the trial Court made findings of fact not supported by the evidence and which the Court of Appeal could not have upheld, as I understood the submission, had it properly considered the issues raised in the Appellant's Reply to the Respondent's Heads of Response. That the Court of Appeal's refusal to consider the Appellant's Reply to the Respondent's Heads of Response based on its understanding of the holding in the case of Kitwe City Council v William Nguni1, that a Court is not bound to consider a party's submissions in a case as submissions are only meant to assist a trial Court in arriving at its judgment, is misguided. It was contended that there is need for the Supreme Court to pronounce itself on whether this understanding does not violate litigants' "legal and fundamental RlS rights" regarding basic principles of natural justice and the Zambian Constitution and the right to a fair hearing. Therefore, that the appeal as such has high prospects of success. 3. That the first of the two novel issues addresses the question whether the applicant's proposal of a mutual separation vitiated his right to claim constructive dismissal. It was submitted to the effect that this is not the position in England where in the case of Nigel Gibbs v Leeds United Football Club Limited4 it , was held that- "The fact that the Claimant had from time to time expressed the view that he was prepared to leave the service of Leeds, if suitable terms were offered, is beside the point. It does not prevent the conduct of Leeds being a breach. It was no breach on his part to initiate discussion about possible consensual termination". (Emphasis, the applicant's) Further, that in the case of W E Cox Toner (International) Ltd v Crook5 the Employment Appeals Tribunal held that the , wronged party may give the other party an opportunity to remedy the breach. In doing so, he does not waive the breach and thereby affirm the contract. R16 Regarding the second question, it was submitted that the settled position in England and Wales is that an employer's unilateral variation of an employee's job description constituted a fundamental breach of contract. The applicant cited the case of Genower v Ealing, Hammersmith Hounslow A.H.A6 in which the Employment Appeals Tribunal upheld an industrial tribunal's finding that by unilaterally varying the employee's job description, the employer was in fundamental breach of contract entitling the employee to resign. Another case cited was that of Land Securities Trillium Ltd v Thornley7 where the , employment tribunal upheld Ms Thornley's claim and found the cause of her resignation to have been the imposition of a new job description, which fundamentally breached the terms of her contract relating to her role and which had the effect of "de skilling" her. It was further held that the employment contract did not entitle her employer to change the content of her work so substantially, as to change its nature, or require her to carry out duties so different from those of her original contract. R17 It was submitted that the aforestated issues are in the public interest and importance which if left unchecked have potential to undermine general public confidence in the justice system thus bringing it into odium and disrepute. The application is opposed and there is an affidavit in opposition filed on behalf of the respondent dated 14th May, 2020. Written Arguments were also filed on behalf of the respondent which Mrs Simachela supplemented with oral argument. Learned counsel submitted that, in summary, the applicant has advanced three points in support of the application viz: 1. that the appeal is of public importance because the Court below failed to consider the applicant's Heads of Argument in Reply (referring to the Appellant's Reply to the Respondent's Heads of Response, as I understood learned counsel) contrary to the Rules of the Court; 2. that the intended appeal raises novel questions of law in relation to the principles of constructive dismissal in labour law regard being had to the well settled legal principles in England and Wales; R18 3. that there is a compelling reason for the appeal to be heard because the Court below was biased in that it considered all the respondent's submissions but not those of the appellant. Further, that the failure by the Court below to consider the Appellant's Reply to the Respondent's Heads of Response went to the core of the matter and led to a "fatal" judgment by the Court. Mrs Simachela gave very short responses to each of the three points. She submitted in response to the first point that the appeal lacks general significance to the public and that the principle attributed to the case of Kitwe City Council v William Nguni 1 that a Court is not bound by a party's submissions does not require the intervention of the Supreme Court. On the second point learned Counsel's response was that the law relating to constructive dismissal is well settled in this jurisdiction such that there is no need to have recourse to foreign case law. Her response to the third point was that the Court below considered the appellant's grounds of appeal, his Amended Heads of Argument together with the Appellant's Reply to the Respondent's Heads of Response as well as all the issues raised by the parties R19 without bias at all. Consequently, that the application failed the legal test provided in section 13(3) of the Court of Appeal Act. I was urged to find the application to be devoid of merit and to dismiss it with costs to the respondent. The applicant did file an affidavit in opposition which like the main affidavit in support of the application contains largely, legal arguments and submissions. The only averment is the reiteration of the assertion that the judgment of the Court of Appeal does not mention anywhere that the Appellant's Reply to the Respondent's Heads of Response were considered. I have considered the application comprising the summons and affidavit in support thereof together with the judgment of the Court of Appeal intended to be appealed against, the proposed grounds of appeal in the draft Memorandum of Appeal as well as the grounds in support of the application exhibited therein. I have also considered the applicant's affidavit in reply to the respondent's affidavit in opposition to the application. I have read and considered the applicant's Reply to the Respondent's Heads of Response pertinent to the appeal in the Court below, which is the basis of much of the R20 applicant's arguments in this application. The applicant's Heads of Argument which were amended by consent on 14th February, 2019 were not exhibited, therefore, I have not taken them into account. I have considered the respondent's affidavit in opposition as well as the arguments on behalf of the respondent in the application before me. The criteria for determining applications for leave to appeal to the Supreme Court from a judgment of the Court of Appeal is now well settled. It was recently affirmed in the case of Bidvest Foods Zambia Limited and 4 Others v CAA Import and Export Limited8 , delivered on 11th June, 2020 that the grant of leave to appeal is restricted to the limited circumstances set out in section 13(3) of the Court of Appeal Act, namely, that- (a) The appeal raises a point of law of public importance; (b) [In criminal matters that] it is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; (c) The appeal would have a reasonable prospect of success; or R21 (d) There 1s some other compelling reason for the appeal to be heard. The Bidvest Foods Zambia Limited8 case also elaborated on the particular circumstances when each of the criteria is deemed to apply. I have seen only two issues for my determination in this application. The first is that the intended appeal meets the threshold in section 13(3) (a) (c) and (d) of the Court of Appeal Act because the Court below relied on Heads of Argument which were replaced after being amended and that the Court did not consider the applicant's Reply to the Respondent's Heads of Response as a result of which the trial court made findings of fact not supported by the evidence. The second is that the intended appeal raises novel questions of law which provides a compelling reason for the appeal to be heard in relation to the principles of constructive dismissal in labour law regard being had to the well settled legal principles in England and Wales. On the first issue, I agree that heads of argument that have been replaced by amendment become invalid because the amended arguments represent the party's current position. I also agree that R22 submissions and arguments by the parties to a case need to be considered by a Court before arriving at its decision or judgment. I, however, do not agree, on the facts of this case, that there is a public interest in elevating the appeal to the Supreme Court so that the Court can pronounce itself on the importance of a Court considering the amended Heads of Argument. My view is that, if a party claims that the wrong heads of argument have been considered, the party must show in the application such as the one before me, the correct arguments and demonstrate how they would have benefitted the party. In this case the amended Heads of Argument, other than the consent order allowing the amendment to the Heads of Argument, were not exhibited. It has also not been demonstrated how they would have benefitted the applicant. In the circumstances, it is not possible for me to assess how they impacted on the applicant's case to enable me determine whether they would have assisted the applicant in the intended appeal. I, accordingly, see no merit in this part of the issue. Coming to the major argument that the Applicant's Reply to the Respondent's Heads of Response was not considered leading to the R23 making of findings of fact not supported by the evidence which the Court of Appeal should not have upheld, I notice that the issues covered in those arguments such as whether the applicant's reporting to the respondent's Managing Director and his membership of MANCO were part of the terms of his employment contract; whether the applicant was effectively demoted and had in fact resigned and ultimately, was entitled to claim that he was constructively dismissed; and whether the applicant was entitled to the two months salaries while waiting for his terminal benefits, were all discussed in the judgment of the Court of Appeal. In my considered view, a Court cannot seriously be blamed for not reproducing the submissions on the same issues which it has covered in its judgment. It is in this context that I understand the disputed decision in the Kitwe City Council v Nguni1 case. The position of the Supreme Court on the issue of parties' arguments and submissions is, in fact, well settled. In the case of Minister of Home Affairs, Attorney General v Lee Habasonda Suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes9 cited by the applicant , R24 ' ... .. decided two years after the Kitwe City Council v Nguni1 case, it was held that- "Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts." (Underlining supplied for emphasis) The applicant cannot, claim that the issues were not considered. It appears to me that what he does not seem to agree with are the decisions arrived at by the Court below on the issues because he feels that the facts were misapprehended. It is, however, clear to me, having read the judgment of the Court that all issues were meritoriously considered to the extent that I do not see the possibility of any of the eight grounds of appeal succeeding. There is, clearly no merit in the argument relating to the Court of Appeal's failure to consider the Appellant's Reply to the Respondent's Heads of Response which allegedly led the Court to uphold findings of fact which were not supported by the evidence. The second issue is that the appeal raises two novel issues of law, namely (i) whether the applicant's proposal of a mutual separation vitiated his right to claim constructive dismissal and (ii) R25 whether an employer's unilateral variation of an employee's job description constituted a fundamental breach of contract. Having found that none of the grounds of appeal have any prospects of succeeding, the second issue has no legs to stand on. The first proposed novel issue presupposes that the case has been established as one in which constructive dismissal has taken place. In this case, the question whether the appellant was constructively dismissed was determined in the negative and I am satisfied that this is in accordance with the merits of the case. There is no science involved. The second proposed novel issue speaks to whether the varied job description was an important component of the employee's job and went to the core of the employment contract. This was also determined in the negative by the Court below. Again, I am satisfied that this is in accordance with the merits of the case. Ultimately, there is nothing novel in the appeal to require the Supreme Court to import the law in England and Wales in the manner proposed by the applicant. I see no merit in the second issue. Having considered the application in the manner I have done, I find that the application has failed to establish either that there is a R26 I , point of law of public importance raised in the proposed appeal; or that the appeal would have a reasonable prospect of success; or that there is some other compelling reason for the appeal to be heard. Leave to appeal to the Supreme Court is, therefore, refused. Each party will, however, bear their own costs since this application arises from an employment matter. Delivered at Lusaka this 13th day of January, 2021. J. CHI YAMA SUPREME COURT JUDGE R27