This is an appeal against the judgment of the High Court,
Harare, dismissing with costs a claim by the appellant against the respondent
for payment of the sum of $62,707=12.
BACKGROUND
The appellant was employed by the appellant as Plant Manager.
In this capacity, he worked for the respondent in Zimbabwe, Zambia, and,
ultimately, Mozambique ...
This is an appeal against the judgment of the High Court,
Harare, dismissing with costs a claim by the appellant against the respondent
for payment of the sum of $62,707=12.
BACKGROUND
The appellant was employed by the appellant as Plant Manager.
In this capacity, he worked for the respondent in Zimbabwe, Zambia, and,
ultimately, Mozambique where the respondent had won a tender to construct roads
in that country. In 2009, a sister company called Tarcon Limitada was
incorporated in Mozambique in order to carry out tenders for road construction
that had been awarded by the Government of Mozambique.
A dispute arose between the appellant and the respondent as
to outstanding salaries and allowances, as well as hire charges in respect of
an Oshkosh Low Loader vehicle belonging to the appellant's company, Earthquip
(Pvt) Ltd. It is common cause that the appellant met with the respondent's Finance
Manager, one Desmond Nhemachena, and that the two engaged in some
reconciliation of the amounts that the appellant claimed were due to him. The
amounts, not having been fully paid, the appellant then instituted civil
proceedings in the High Court for the recovery of the same.
The respondent denied being indebted to the appellant. It
alleged, before the court a quo, that
the appellant's claim was prescribed and that in any event the appellant had a
contract of employment with Tarcon Limitada and that it was to that company
that he should look for payment. Further, the respondent denied that when
Desmond Nhemachena engaged in a reconciliation with the appellant, he did so on
its behalf or that the reconciliation binds it.
The matter went to trial on the following issues;
(a) Whether the appellant was employed by the respondent or
by Tarcon Limitada;
(b) Whether the claim for payment had become prescribed;
(c) Whether the reconciliations done by the appellant and
Desmond Nhemachena were done on behalf of the respondent;
(d) Whether the appellant's company had a hire contract
with the respondent or with Tarcon Limitada;
(e) Whether the High Court had jurisdiction to entertain a
claim arising out of a labour dispute; and
(f) The amount due to the appellant by the respondent.
At the close of the appellant's case before the court a quo, the respondent successfully applied
for absolution from the instance. The High Court held that the claim for
salaries and allowances was not based on a stated account but on a contract of
employment governed by the Labour Act. It further found that the claim had
prescribed after the lapse of two years and that the payments that were to be
made to the appellant outside the country were not recoverable because the
transactions contravened the Exchange Control Regulations, 1996. Lastly, the
High Court held that the hire charges should have been claimed by Earthquip
(Pvt) Ltd and not the appellant.
On appeal, this court found that at the time the
reconciliation statements were signed, in November 2008, Tarcon Limitada had
not yet been incorporated and that therefore the appellant could not possibly
have been employed by that company. The court further found that the claim was
based on a stated account. Having regard
to all of these facts, this court found that the court a quo had erred in granting absolution from
the instance. Consequently, this court set aside the judgment of the court a
quo and remitted the matter for the
continuation of the trial.
In closing argument, the respondent submitted that the
appellant's claim, in respect of hire charges, had prescribed. In his heads of
argument, the appellant conceded that the claim for hire charges had not formed
part of his cause of action and accordingly moved for its abandonment.
At the close of the full trial, the court a quo found that the claim was not founded on
a stated account but rather on a purely labour employment dispute. The court
also found that the claim for hire charges and for payment of equipment bought
had been abandoned. Consequently, the court a quo dismissed the appellant's claim with costs.
Hence the present appeal.
GROUNDS OF APPEAL
BEFORE THIS COURT
The appellant has listed a total of ten (10) grounds of
appeal. I quote these verbatim:
“The court a quo erred
in all or any of the following respects:
1. In finding that the dispute was a labour dispute.
2. In finding that even if the dispute was a labour dispute
it was a dispute which the High Court had no jurisdiction to deal with.
3. That the claim for the hire of equipment was not
included in the summons.
4. That the claim for the hire of the equipment was
abandoned.
5. In accepting the evidence of Mr Nyamachena (sic) in so
far as it conflicted with the appellant's evidence.
6. In finding that in respect of both exhibits 2 and 3 the
reconciliation required the approval of the Chairman.
7. In finding that Mr Nyamachena (sic) had no authority to
bind the respondent.
8. In holding that the reconciliations were done to resolve
any dispute.
9. In failing to take into account the unsatisfactory
manner in which the defence was conducted.
10. In failing to take into account that the reason for
non-payment of monies due by respondent was simply that respondent did not have
the money. As appellant continued to be employed by respondent, it was
unreasonable to criticise him for not taking action in the Labour Court during
the period of his employment.”
In his prayer, he seeks an order that the respondent pays
to him the sum of $45,267=12 together with interest and costs of suit.
At the hearing of this matter before this court, the
propriety or otherwise of the appellant's notice of appeal became a live issue.
In particular, the issue was whether the grounds of appeal, as formulated, comply
with the Rules of this Court, and, if not, whether the appeal stands to be
struck off the roll on that score alone. Having heard submissions from both
counsel, this court decided to hear submissions on the remaining issues and
thereafter deal with all the issues that arise in this appeal.
The issues that arise for determination before this court
are the following;
(i) Firstly, whether the notice of appeal is valid.
(ii) Secondly, if it is, whether the court a quo was correct in finding, as it did, that
the appellant's claim was not based on a stated account but rather on a purely
employment dispute….,.
THE REAL ISSUE BETWEEN
THE PARTIES
The appellant's cause of action in the court a quo was predicated on a stated account i.e.
on an account agreed to by both parties. The issue at the end of the day was
whether the parties agreed on the figures claimed by the appellant in his
declaration. All the issues raised in the grounds of appeal relate to this
fundamental question.
In paragraph 3 of the declaration, the appellant made the
following averments. That he and a Mr Nhemachena, representing the respondent,
had prepared two reconciliations whose contents were agreed between the
parties. One was for $32,074=13 and the other for $30,360=26. The two amounts
had been reduced following the payment of the sums of $8,000= and $9,277=27
respectively. The appellant, in his heads of argument filed with this court,
states that it makes no difference whether one describes the reconciliation as
a running account or a stated amount because, once the amount of the running
amount was agreed upon, the appellant was entitled to rely on that
agreement.
In short, therefore, the issue before the court a quo was whether there was an agreed
reconciliation of the amounts due to the appellant. The source of the amounts
was irrelevant.
The court a quo was alive to the need to resolve the
question whether the amount claimed was agreed.
The court appreciated the fact that both reconciliations had been signed
by the appellant and Mr Nhemachena, the respondent's Finance Manager. The court
was also aware that on both reconciliations, Mr Nhemachena had endorsed that
payment would be made in the agreed instalments - but this was subject to the
approval of the Chairman.
After analysing the evidence given by both sides, the court
a quo reached the conclusion that the
contention that the reconciliations had been accepted by the respondent had not
been proven. The court remarked:-
“Given the long history of the dispute pertaining to the
alleged outstanding salaries and allowances between the parties, the timeframe
between the drafting of exhibit 2 on one hand and exhibits 3 and 4 on the
other, the court accepts Nhemachena's evidence which was not controverted, that
when he sat down with the plaintiff to draft the so-called reconciliations he
was not acting on behalf of the defendant. He said the plaintiff was a friend
who approached him to enlist his help in having the long running issue brought
to finality…,; what the plaintiff and himself agreed upon was subject to
approval by the Chairman. Indeed, no evidence was adduced establishing that
Nhemachena was mandated by the defendant to resolve the dispute…,.”
Now, the above were findings of fact made by the court a
quo after considering the evidence
and the probabilities of the matter. The basis upon which the above findings
can be interfered with by an Appellate Court is now firmly established. An Appellate
Court will not, as a general rule, interfere with a decision of a trial court
based purely on a finding of fact unless it is satisfied that, having regard to
the evidence placed before the trial court, the finding complained of is so
outrageous in its defiance of logic that no reasonable person who had applied
his mind to the question to be decided could have arrived at such a conclusion
– Hama v National Railways of Zimbabwe 1996
(1) ZLR 664 (S) 670. An Appellate Court must always bear in mind that the trial
court enjoys certain advantages that it does not, particularly when it comes to
the assessment of the credibility of witnesses. Unless it is clear from the
record that the reasons given are based upon a false premise or where the trial
court has ignored some fact which is clearly relevant; errors which are
generally referred to as misdirection of fact, then an Appellate Court will not
interfere.
See Rich v Rich SC16-01.
The finding by the court a quo that the two reconciliations were never agreed between the
appellant and the respondent cannot be said to be irrational, given the
evidence availed during the trial proceedings.
It is clear that the reconciliations were subject to
approval by the Chairman.
According to Mr Nhemachena, such approval was never given.
Further, even the reconciliations, and, in particular, the one claimed in
respect of Mozambique, show that the figures were not agreed at the time Mr
Nhemachena signed them. The reconciliation makes it clear that there were
claims thereon that required verification with Jordan and R Mandiwanzira in
Mozambique. As it turned out, some of the claims were paid whilst others were
not. The figures in the reconciliation could not therefore have been agreed
upon as at the date the parties signed the document on 7 November 2008.
It was argued that the fact that payments were made to the
appellant after the two parties had signed the reconciliations is indicative of
an agreement having been reached on all the figures.
That cannot possibly be correct.
The amounts paid appear to have related to specific items
claimed by the appellant and not the specific instalments to be paid in terms
of what the documents refer to as the payment plan.
In all the circumstances therefore, I find that there is no
basis upon which this court can interfere with the findings made by the court a
quo.
It becomes unnecessary to determine the issues raised on
the hire of equipment and the charges raised consequent thereto….,.
DISPOSITION
For the above reasons, the appeal lacks merit
and therefore cannot succeed. It is accordingly dismissed with costs.
