Alistair Logistics (Z) Limited v Dean Mwachilenga (APPEAL No. 232/2019(B)) [2020] ZMCA 173 (20 November 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA APPEAL No. 232 / 2019(B) (Civil Jurisdiction) B E T W E E N: _,,.. .. c or , • , / ,: ,. ~ · /,,,,..9.t-_.;--;:---. Y. ~,. ,·' ~ ~1=- ·- 2 · ; 2 0 ~ DV 2 L_ - . ~C"- Pf. Gt(•~y . .., I l :<: . ALISTAIR LOGISTICS (Z) LIMITED . -o~ APPELLANT AND DEAN MWACHILENGA RESPONDENT Coram: Chashi, Lengalenga, and Majula, JJA On 11 th and 20th November, 2020 For the Appellant: Mr. M. Nyirenda of Kafunda & Company For the Respondent: Mr. J. Mataliro of James & Doris Legal Practitioners JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to 1. Nkhata and Others vs Attorney General (1966) Z. R. 124 2. Care International Zambia Limited vs Misheck Tembo SJ No 56 of 2018 3. Agholar vs Cheeseborough Pond's Zambia Limited (1976) ZR 1 4. Caroline Tomaidah Daka vs Zambia National Commercial Bank Limited PLC (2012) ZR 8. 5. Yumba and 22 Others vs Luanshya Municipal Council (SCZ Appeal 005/ 2015). 6. Kanga vs Zambia Revenue Authority (SCZ Appeal No. 194/ 2015) J2 7. Redrilza vs Nkazi (2011) Vol. 1 ZR 394 8. Sarah Aliza Vekhnik vs Casa Dei Bambini Montessori Zambia Ltd (CAZ Appeal No. 129/ 2017) 9. Attorney General vs Fred Chileshe Ngoma (1987) ZR 80. 10. Leopold Walford (Z) Ltd vs Unifreight (1985) ZR 203 11. Zambia Copper Mines Limited vs James Matale (SCZ Judgment No. 9 of 1996) 12. Isaac Nyirenda vs Kapiri Glass Products Limited (1985) ZR 167 13. Masauso Zulu vs Avondale Housing Project Limited (1982) ZR 172 14. Chilanga Cement Plc vs Kasote Singogo (SCZ Judgment No. 13 of 2009) 15. Dennis Chansa vs Barclays Bank (SCZAppeal No. 111 / 2011) 16. Butler Asimbuyu Sitali vs Energy Regulation Board (CAZ Appeal No. 12 of 2017) 17. Kawimbe vs The Attorney-General (1974) Z. R. 244 18. Engen Petroleum Zambia Limited vs Willis Muhanga & Another (SCZ Appeal No.117/ 2016) 19. Zambia National Commercial Bank Plc vs. Joseph Kangwa (SCZ Appeal 54/2 008) Legislation and Other authorities referred to: 1. Employment Act, Chapter 268 as amended by Act No. 15 of 2 . Employment Code, Act No 3 of 2019 3 . Gwyneth Pitt, Employment Law, Seventh Edition, (London, Thomson Reuters (legal) Limited, 2009 1.0 Introduction J3 1.1 This appeal emanates from a judgment of the Hon. Mr. Justice D, Mumba of the Industrial Relations Division of the High Court. Following a complaint that was lodged and trial of the matter, the court found that the respondent was wrongfully, unlawfully, and unfairly terminated from employment. 2.0 Background 2.1 The facts are that the respondent was employed by the appellant as a Civil Engineer on probation for three months from 1st June, 2018 to 1st September, 2018. The employment on probation was in line with clause 2 of the contract of employment. 2 .2 After the expiration of the three months' probation, the respondent continued to work for the appellant without any feedback from the appellant on whether or not he had successfully completed his probation. 2 .3 During the course of his employment, the respondent was assigned to travel to Tunduma, Tanzania on official duties. Prior to this assignment, the respondent was permitted to travel from Solwezi to his home in Lusaka to collect his passport and some of his belongings. He remained in Lusaka for about two weeks. When he returned to Solwezi, the appellant informed him of the non-confirmation of his probation in a letter dated 22nd October, 2018. J4 2.4 Aggrieved with the termination, the respondent proceeded to issue a complaint in the court below seeking damages for unjust, unlawful, and wrongful termination. 3.0 Findings of fact in the Court below 3.1 In his judgment, the learned trial Judge identified the issues for determination as being: i) whether the respondent failed to successfully complete his probation, as a result of which the appellant was justified to terminate his contract; and ii) whether the reasons for the termination of the respondent's contract were his absence from work without leave or his refusal to carry out an assignment from the appellant. 3.2 Regarding the first issue, the learned trial Judge was of the view that the respondent had successfully completed his three months' probation. This was on account of the fact that the appellant did not bring to the respondent's attention any shortcomings or failures in the discharge of his duties during the probation period of three months. The lower court further found that the action taken by the appellant to terminate the respondent's employment was done in breach of the terms and conditions of his employment contract. That this was because he had successfully completed his three months' probation and was therefore deemed to have been confirmed. JS 3.3 Turning to the second issue the trial Judge found that the failure by the appellant to give a reason for the termination of the respondent's employment violated section 36 of the Employment Act, Cap 268 as amended by Act No. 15 of 2015. It was the position of the trial Judge that in view of the fact that the appellant failed to give the respondent the requisite notice and a valid reason for the termination, the termination was consequently wrongful and unlawful. 3.4 Finally the lower court concluded that the failure to charge the respondent and to accord him an opportunity to be heard on the charges resulted in the termination being termed unfair entitling him to damages. The trial Judge thus awarded the respondent damages equivalent to 36 months of his gross salary plus housing allowance with interest. 4.0 Grounds of Appeal 4.1 Resenting the judgment, the appellant has turned to this court fronting four grounds of appeal couched as follows : 1. The learned trial Judge in the court below erred in law and fact when he held at page J23 - J25 of the judgment to the effect that "the action that was taken by the appellant to terminate the complainant's employment after he had served for three months' probation on the allegation that he did not successfully complete his probation simply amounted to a violation of the complainant's terms and J6 conditions of his contract. .. Accordingly, I hold that the complainant successfully completed his three months' probation and inevitably got con.firmed in his appointment." Such finding being against the weight of the evidence that was led at the trial of the matter. 2. The learned trial Judge in the court below erred in law and in fact when he held at page J26 that "I declare that the complainant's separation from the respondent's employment was wrongful and unlawful. As a result, the complainant is entitled to damages for wrongful and unlawful termination of contract" against the established principle of law that no injustice is occasioned to the employee whose employment is terminated where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal. 3 . The court below erred in law and fact when it held at page J27 to the effect that "therefore, the complainant is entitled to the declaration that the termination of his employment was unfair and he is accordingly entitled to damages" when the complainant's employment was terminated for having committed offences that warranted him being summarily dismissed. 4. The learned trial judge in the court below erred in law and fact when he held on page J30 that "I am settled that this case warrants departure from the common law measure of damages. Therefore on the authority of the case of the case J7 of Dennis Chansa, I award the complainant damages equivalent to 36 months of his last gross salary plus housing allowance with interest at the short term commercial deposit rate as determined by the bank of Zambia, from the date of the notice of complaint to the date of the judgment, and thereafter at 10 % per annum until full settlement." as same is way too excessive, shocking, contrary to the case that was pleaded and against the evidence on record. 5.0 Appellant's arguments 5.1 In the written arguments 1n support of the appeal, the appellant's argument in relation to ground one was that factors that clothe an appellate court with power to interfere with the findings of fact as set out in the Nkhata 1 case are present in this a ppeal. Counsel pointed out that the finding by the lower court, that after three months the appellant was supposed to bring to the attention of the respondent any shortcomings, was not supported by the evidence on record. 5. 2 That the evidence was that there was a planned probation review for the r espondent that was awaiting the return of Marko Krujuatuz who was the respondent's supervisor. More pointedly, it was argued that the trial judge failed to take into account the evidence of a telephone conversation and the email chat on the set probation review between the respondent and one Marko Krujuatuz. It was further argued that the act J8 of deferring the probation assessment was within the appellant's discretion as provided in clause 2 of the contract of employment. However, before the planned review, the respondent committed serious offences that warranted the termination of his employment summarily. 5.3 The kernel of the arguments in relation to ground two was that the court below failed to take into account the principle of law which provides that where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal, no injustice is occasioned to such an employee when his contract is terminated. The case of Care International Zambia Limited vs Misheck Tembc,2 was cited as authority for this argument. 5.4 Counsel submitted that there was sufficient evidence, both documentary and oral, which pointed to the fact that the respondent committed the offences of absenteeism and refusal to carry out management instructions. 5.5 Counsel further argued that clauses 11 and 12 of the contract of employment provided for termination of employment summarily for an employee who commits these offences. It was further argued that termination of an employment contract for an employee on probation and one who is not are treated differently in terms of sections 27(2)(3)(6), 52(1)(2)(3) and 53 of the Employment Code Act No 3 of 2019. :: J9 5 .6 That for a person who was on probation the only requirement when terminating 1s to notify the person within 24 hours without assigning a reason. It was contended that the respondent's employment was terminated in accordance with section 36 of the Employment Act No 15 of 2015. There was, therefore, no need to give a notice of termination. 5. 7 With respect to ground three, the appellant faulted the trial Judge for allegedly failing to appreciate the fact that the respondent was terminated summarily and in circumstances that would be not be considered as amounting to unfair dismissal. Counsel argued that an employee whose contract is terminated summarily is not entitled to be heard on allegations that are leveled against him. To buttress this point we were referred to the case of Agholar vs Cheeseborough Pond's Zambia Limited3 where it was held: "Where... a master "dismisses" a servant he terminates the contract summarily without any notice on the grounds if such of misconduct, negligence, or incompetence, grounds are justified the servant forfeits the right to any notice whatsoever, and to a number of other benefits." 5.8 It was contended that the respondent, having been terminated summarily, cannot be heard to say that he was entitled to be charged and heard on the grounds for which he was dismissed . JlO 5.9 Moving to ground four, the gist of Mr. Nyirenda's argument was that the award of 36 months as damages was excessive and should come to this court with a sense of shock. Counsel argued that the purpose of damages is to place the innocent party in the position he would have been if the contract had been performed. For this proposition, we were referred to the case of Caroline Tomaidah Daka vs Zambia National Commercial bank Limited PLC4. 5 . 10 Finally it was argued that the lower court erroneously took into account the fact that the respondent had remained unemployed for 12 months after his employment was terminated. That this issue was neither pleaded nor substantiated by way of evidence at trial. We were accordingly called upon to allow the appeal and set aside the judgment of the court below. 6.0 Respondent's arguments 6.1 On behalf of the respondent, Mr. Mataliro filed written heads of argument, the gist of which was that the appeal was frivolous and vexatious. Before responding to the substantive grounds of appeal counsel pointed out that the appellant failed to file a list of authorities together with heads of argument in breach of Order X Rule 9/8 and 9/10 of the Court of Appeal Rules. Learned counsel also bemoaned the alleged failure by the appellant to set out the grounds of appeal in a concise and distinct manner, without legal argument. For this argument, JI I the respondent relied on the provisions of Order X Rule 9/2 of the Cou rt of Appeal Rules and the case of Yum.ha and 22 Others vs Luanshya Municipal Councils. 6 .2 In response to ground one counsel argued that the ground lacks merit for offending section 97 of the Industrial and Labour Relations Act which proscribes appeals based on facts alone. The appellant r elied on the case of Kanga vs Zambia Revenue Authority6 where the Supreme Court held that an appeal based on findings of fact cannot lie to the Court of Appeal from the IRC pursuant to section 97 of Industrial and Labour Relations Act . It was contended that since ground one is against the finding of fact that the appellant successfully completed his probation, it should be dismissed on the basis of section 97 aforcited. 6 .3 On grounds two and three of the appeal, Mr. Mataliro argued that the appellant failed to appreciate the distinction between summary dismissal and termination. The case of Redrilza vs Nkazi7 was cited where it was held as follows: "There is a difference between dismissal and termination. Dismissal involves loss of employment arising from disciplinary action while termination allows the employer to terminate the contract of employment without invoking disciplinary action. )) J12 6.4 According to counsel, the case 1n casu involves termination and not dismissal, and thus it was misleading for the appellant to include issues of dismissal in its appeal. 6.5 Counsel went on to submit that an employer is obligated to give valid reasons to an employee when effecting a termination of employment in accordance with section 36 of the Employment Act. Our decision in the case of Sarah Aliza Vekhnik vs Casa Dei Bambini Montessori Zambia Ltd8 was cited to support this proposition of law. Counsel argued that failure by the appellant to give valid reasons rendered the termination of the respondent's employment unlawful and void. 6.6 On ground four, the thrust of the respondent's submission is that an appellate court should not lightly interfere with an award of damages made by a trial court merely because it feels it would have awarded a different sum had it been the one that tried the case. Thus the appellant must demonstrate to the appellate court that the award was hopelessly wrong in principle. Reliance was placed on the case of Attorney General vs Fred Chileshe Ngoma9 where the Supreme Court observed as follows : "As we reiterated in the Mwiinde case it is not sufficient for this court to say that had we tried the case we would have awarded different damages. The damages must be wholly wrong before we will interfere.}} J13 6. 7 It was pointed out that 1n awarding 36 months' salary as damages, the court below took into account the abrupt manner in which the termination was effected and inter alia the scarcity of jobs. We were accordingly urged to dismiss the appeal with costs. 7.0 Appellant's Arguments In Reply 7 .1 The appellant filed into court arguments 1n reply on 11 th November, 2020 after they were granted leave to do so. As regards the failure to file a list of authorities together with heads of arguments the position of the appellant was that non-compliance with regulatory Rules is not fatal but curable depending upon the nature of the breach and the stage reached in the proceedings. For this point, Mr. Nyirenda relied on the case of Leopold Walford vs Unifreight10 where the Supreme Court held as follows: "As a general rule breach of a regulatory rule is curable and not fatal, depending upon the nature of the breach and the stage reached in the proceedings." 7 .2 The argument in respect of ground one was that the finding of fact by the learned trial Judge to the effect that the respondent had successfully completed his three months' probation was made in the absence of evidence such that no trial court acting correctly could reasonably make. The contention was that a finding of fact which is not supported by evidence J14 becomes a question of law and 1s therefore liable to be set aside. The case of Zambia Consolidated Copper Mines Limited vs James Matale11 was called in aid to support this argument. It was, therefore, contended that the ground of appeal does not offend the provisions of section 97 of the Industrial and Labour Relations Act. 7 .3 It was submitted that the probationary period of employment of the respondent must be deemed to have been extended for another three months. This meant that the contract could be lawfully terminated under clause 2 of the contract of employment without notice or compensation other than the wages covered for the period already worked for. 7.4 The upshot of the submissions in reply in relation to ground three was that while on probation the respondent breached his contract on account of absenteeism and refusal to carry out instructions of management. That the appellant, however, opted to use the probation clause to terminate the employment. It was contended that it was, therefore, erroneous to suggest that the appellant was obliged to give reasons for the termination other than merely state that the probation was unsuccessful. 7.5 Moving to ground four, the appellant's Counsel reiterated his earlier submission that the award of damages was inordinately high and contrary to decided cases on assessment of damages. We were implored to allow the appeal. J15 8.0 Hearing of the appeal and oral arguments canvassed 8.1 At the hearing of this matter on 11 th November, 2020 Counsel for the appellant Mr. M. Nyirenda summarized the four grounds of appeal. The unhappiness from the appellant stems from the trial court's finding that the respondent had completed the probationary period and was confirmed. Mr. Nyirenda argued that this flew in the teeth of the evidence that the probationary period was extended for another three months. He expressed wonderment at the Judges' finding that there was confirmation. 8 . 2 The other grievance emanates from the award of damages given to the respondent which was 36 months. He saw no basis for this award considering the fact that the respondent had been on a one year contract and had served a period of four months. Mr. Nyirenda was of the view that should we agree that the termination was unlawful, we should reverse the award as it was excessive. In concluding, he prayed for costs in the court below and in our court. 8.3 Mr. Mataliro in response sought to place reliance on heads of argument filed and briefly augmented the same. He pointed out that the appellant had extensively argued on the question of probation. That the court below had made findings of fact and all the grounds of appeal were attacking findings of fact and therefore, were in contravention of section 97 of the Industrial and Labour Relations Act. J16 8.4 He went on to urge us to distinguish the case of Isaac Nyirenda vs Kapiri Glass Products Limited12 from the finding of fact made in the court below. In furtherance of his arguments as to why the appeal ought to fail, Mr. Mataliro indicated that the question which the court below relied on in finding that the termination was wrongful and unfair was because there was no reason advanced for the termination thereby contravening the law. 8 .5 According to Mr. Mataliro, the relationship between the appellant and the respondent was governed by a contract of employment and the issue of probation only arose after the contract of employment was terminated. There was therefore no basis for the trial court to find that the probation had been extended from three to six months. 8.6 Turning to the issue of the excessiveness of damages he submitted that the court had explained as to why it awarded the damages in the manner that it did. He concluded by stating that the award of damages is not informed by the length of the contract but it is informed by the circumstances of each particular case. 8.7 Like his learned brother, he too prayed for costs. 9.0 Consideration and decision of the Court 9.1 We have carefully, scrutinized the record, submissions as well as the chain of authorities cited by both sides. J17 9.2 At the outset we wish to agree with counsel for the respondent that the manner in which the grounds of appeal were couched was undesirable. We did think that there was a failure on the part of counsel for the appellant to draft the grounds in a concise and distinct manner. However this notwithstanding, we are of the view that the breach was not fatal to the appeal. We align ourselves to the case of Leopold Walford vs Unifreight10 and we shall therefore proceed to deal with the substantive appeal. 9.3 The first bone of contention arises from the finding by the trial Judges' finding that the respondent was confirm ed in his employment and his subsequent termination was wrongful and unlawful. 9. 4 The second issue stems from this finding which is the award of damages given to the respondent on account of the wrongful and unlawful termination. 9 . 5 In order to respond to the grounds of appeal, we shall deal with grounds 1 and 2 together and grounds 3 and 4 as the first two deal with the termination and the latter deal with damages. 10.0 Employment Status 10.1 The question that begs an answer is whether the respondent was confirmed in his employment or not. Jl8 10.2 The appellant has strenuously argued that the finding of fact by the trial Judge that the respondent successfully completed his three months' probation and inevitably got confirmed in his appointment was not made on a proper view of the evidence such that no trial court acting correctly would make. 10.3 After a thorough examination of the evidence, we take the view that the trial Judge did correctly analyse the evidence before him. The facts revealed that in the contract of employment, in particular, clause 2 there was a probationary clause. For ease of reference it reads as follows: ((The employee must successfully complete a probationary period of three (3) months during which time the employer will have the right to terminate employment without any notice or the period of time already worked. Three (3) months' probation applicable to this contract which may be extended for another three months." 10.4 It is crystal clear that the probation was for a three months' period but could be extended. The appellant commenced employment on 1s t June 2018, and all things being equal ought to have completed his probation on 31 st August, 2018. He continued working up until 22 nd October, 2018 a period of four months and three weeks. It is this set of facts that led the Judge to opine as follows: J19 "On the facts of this case, it is my considered view that the complainant had successfully completed his three months' probation. This is because the respondent did not bring to the attention of the complainant any shortcomings in his performance of duties during the probationary period of three months. As I have earlier stated, it was the duty of the respondent to carry out an assessment of the complainant's performance during the three months' probationary period but this it failed to do. Without anything adverse having been brought to his attention, the complainant legitimately and reasonably concluded his probation was successful; and I totally agree with him. I, have not, therefore, accepted the respondent's evidence that the complainant was employed on probationary period which was to run from 1s t June, 2018 to 1st December, 2018." 10.5 The Judge in the court below dismissed the appellant's assertions that the complainant's probation was extended by an additional three months. This was because there was no notification of the said extension. In addition neither was he informed that he had not performed his duties to the satisfaction of his employer. 10.6 The argument that the probationary period had been extended as a matter of fact flies in the teeth of the evidence as Charles J20 Tolchard who was the respondent's superior indicated in his email that h e had not been notified of a ny extension. 10.7 Against this weight of evidence we see no basis upon which the findings of the Judge could be assailed. He properly evaluated the evidence that was before him a nd has been stated in a plethora of authorities that an appellate court can only reverse findings of fact if it is satisfied that the findings in question wer e either perverse or made in the absence of any evidence or upon a misapprehension of facts or that they were findings which on a proper view of the evidence, no trial court acting correctly could have r easonably make ( see Masauso Zulu vs Avondale Housing Project Limited13). 10.8 The appellant sought to rely heavily on the case of Nyirenda vs Kapiri Glass12 where the appellant in that case was employed b y the respondent as Purchasing Manager and on 15th May, 197 8 , after working for five months a nd ten days , h e was summarily dismissed and paid his salary up to 16th May, 1978. The letter of summary dismissal stated that the reason for terminating his contract was his inability to p erform his dutie s to the respondent's satisfaction as a Purchasing Manager. The appellant claimed h e was wrongfully dismissed. 10.9 In defence of this action the respondents stated that the appellant was on proba tion and according to his contract he could be dismissed on twenty-four hours' notice. J21 10.10 The court analysed the relevant provision of his contract of employment which specified that he would be on probation for a specified period of three months - Clause 2.2 went further and stated: "The company before the end of that period would either confirm the appointment in writing or dismiss the employee. Until this confirmation is given, the employment shall be deemed to be probationary employment." 10.11 On the basis of the above clause, Mr. Mwanawasa who was Counsel for the appellant argued that since the time of dismissal he worked for more than three months, the above clause 2.2 of the contract should be construed as meaning that, if the company did not confirm the appointment or dismiss the employee at the expiry of the three months, the employment should be deemed to be confirmed. Gardner J. S. on behalf of the Supreme Court observed as follows: "This argument ignores the words "until this confirmation is given the employment shall be deemed to be probationary employment." Some meaning must be given to these words in our view their meaning is clear. They are intended to cover the situation, as in this case, where the employer does not either confirm the appointment or dismiss the employee within three months, in which event probationary employment is deemed to continue. Without this construction, the words J22 would be otiose. As the probationary employment continued, it follows that it could be lawfully terminated by twenty four hours' notice in writing under clause 24. This ground of appeal must therefore fail." 10.12 It is clear from the foregoing that the court looked at the construction of clause 2.2 of the contract of employment. The "deeming" of the employment contract to continue after expiry of the specified period of three months was envisaged in this clause. 10. 13 Turning to the case at hand, in particular, clause 2 one has to construe the extension of the probation after three months in context. It states: "Three (3) months' probation applicable to this contract may be extended for another three months." The operative words being may be extended." 10.14 Our view is that the case of Nyirenda vs Kapiri Glass12 does not come to the aid of the appellant having regard to the construction of the words used in this case. 10.15 In light of the preceding paragraphs, we find no merit 1n grounds one and two and accordingly dismiss them. 1 O. 16 We will now address our minds to the burning issue on the question of damages. • J23 11.0 Award of Damages 11.1 When awarding damages for loss of employment, the common law remedy for wrongful termination of a contract of employment is the period of notice. In deserving cases, the courts have awarded more than the common law damages as compensation for loss of employment. 11.2 In Chintomfwa vs Ndola Lime Limited13 the rationale for awarding two years as damages was due to the appellant's grim future job prospects. However, when each case is considered on its own merit, future job prospects may not be the only consideration for enhanced damages in wrongful or unlawful dismissal. 11.3 In Chilanga Cement vs Kasote Singogo14, the respondent was compensated for "abrupt loss of a job." The court declined to interfere with the award because it shared the indignation with the lower court in the harsh and inhumane manner in which the respondent was treated. In a proper case, damages for loss of employment may be awarded for embarrassment and mental torture. Damages for mental distress, and inconvenience would also be recovered in an action for breach of contract. However, such an award for torture or mental distress should be granted in exceptional cases. The court had the fallowing to say: • J24 "The events leading to the termination of the respondent's employment laid bare, the true intention of the appellant, through the General Manager, to get rid of the respondent. It is clear from the e-mails from the General Manager that he took great exception to the encounter between the respondent and Mr. Srinivasan. He even questioned the competence of the respondent. The final act, of stopping the respondent from attending the company Christmas party, clearly demonstrated that the respondent had fall en out of favour with the General Manager. Instead of invoking the Grievance Code, or even invoking the ordinary termination procedure; the easy way out for the appellant was to shove the respondent into an ongoing redundancy exercise and terminate his services with immediate effect. These events clearly show that this was no ordinary termination of employment and the appellant cannot hide its bad faith even under normal termination of employment by notice or payment in lieu of notice. We therefore, hold that the respondent's employment was wrongfully, terminated." 11.4 The Supreme Court considered 1n the Singogo14 case the 'harsh' and inhumane manner in which he was treated and therefore did not interfere with the award of 36 months' salary which was compensation for 'abrupt loss of a job". The apex court went further to sound a warning that: <J25 "Hopeless and weak employees like the respondent need to be protected from the whims and caprices of powerful elements in the large conglomerates such as the appellant, who might be tempted to use their positions to antagonize employees." 11.5 In Dennis Chansa vs Barclays Bank15 the award of 36 months' salary as damages was upheld. Musonda, JS on behalf of the court opined that: "The rationale is that as the global economies deteriorate, the chances of finding e mployment even by graduates are dimmer. There should be a progressive upward increase in damages as it is bound to take longer to find a job in the current domestic and global economic environment." 11.6 In Butler Asi mbuyu S itali vs Energy Regu lati on Board1 6, the appellant who had been employed as Executive Director and Chief Executive Officer (CEO) had his contract terminated after a series of events. The Board was constituted with seven Directors and the then Minister of Energy appointed four more Directors. This is what triggered the events that followed. 11.7 The appellant notified the Chairman of the Board that the appointment was contrary to the provisions of the enabling Act. Honourable Jack Mwiimbu raised a point of order during the debates on the irregular appointment of Directors. Events • J26 that followed culminated in the appellant being terminated. We observed as follows on page J31 of our Judgment. "In casu, the appellant's ordeal started on the floor of Parliament and it is sufficient to suppose that he was for at least a brief period "the topic of the day " and depending on the observer's vantage point, he was either a hero or a villain. He was thrust into the public eye and we have no doubt that the entire chain of events, inclusive of the manner of dismissal were sufficient to cause embarrassment and mental torture and constitute exceptional circumstances that warrant compensation on that account. " 11.8 It was on account of the exceptional circumstances that we went beyond the normal measure of damages a nd awarded 24 months' pay as compensation. 11. 9 Mr. Nyirenda has b emoaned the award of damages and has argued that they are excessive. Mr. Mataliro has cited a chain of a uthorities where the courts have awarded damages beyond the common law practice of notice period. He has rebuffed Mr. Nyirenda's lamentations that the court should consider the fact that the responden t was serving on a one year contract in assessment of damages and argued that damages were not informed by the contract but the circumstances of each particular case. We could not agree with him more on this score. Each case must be d ecided on its own merits. • J27 11. 10 We have in the preceding paragraphs endeavored to bring to the fore numerous cases where the courts have gone beyond the notice period and given awards ranging from 24 to 36 months. As one will note from these cases the court highlighted the traumatic circumstances which informed their decision to depart from the normal measure. 11.11 In this particular case, the Judge did also highlight the reasons for the award as being scarcity of jobs, abrupt loss of employment and in his view the manner in which the termination was done was traumatic. 11.12 We are mindful of the fact that we cannot interfere with findings of the trial court on an award of damages unless they are so hopelessly wrong. 11.13 Among the cases cited by Mr. Mataliro is that of Kawimbe vs The Attorney-General1 7 where the Supreme Court guided that: "An appellate court should not interfere with the finding of a trial court as to the amount of damages 'merely because they think that if they had tried the case in first instance they would have given a lesser sum' (Greer, L. J in Flint Lovell (3). B efore this court will interfere it must be shown that the trial court has applied a wrong principal or has misapprehended the facts or that the award was so high as to be utterly unreasonable ." J 2 8 11.14 The question that befalls us 1s; was the award of damages wholly wrong to necessitate our interference? We are very much alive to the fact that contracts of employment have a time period and as the learned authors of Gwyneth Pitt, Employment Law, at para graph 8004, on p236 observed: "Contracts of employment are usually drawn up to last indefinitely, But people cannot be tied to each other forever, and at common law the rule grew up that either party could lawfully terminate the contract of employment provided that reasonable notice was given. (underlined for our emphasis) And further that : "The general principle in contract law and it must be remembe red that ernployment law is basically concerned with a contract of employment, is that the purpose of damages is to put the innoce nt party in the position in which he would have been had the contractual obligations been pe rformed in so far as it is possible to do this by monetary award." 11.15 What must b e not los t sight of is that every contract of employment is terminable by n o tice and if it is found that the contract has b een breached, damages are awarded as compensation for the loss or injury suffered by the employee through the breach. The rationale is that the employee must • J 29 be placed 1n the posi Lion a s if the con tract had been performed . 11.16 There is no contract that is indefinite and h as an "until death do us part' clause. Either party can terminate the contract in line with the provisions of their contract. 11.17 We have m eticulously examined the contract of employment in particular the termination clause 12 which is that the contract is terminab le by either party giving the other one months' n otice in wri ting or on e months' p ay in lieu of notice. 11 . 18 Having exercised our minds as to the facts of this case, we have a rrived at the inescap a ble conclusion that the award of 36 months' pay is inordinately high given the particular circumstances of the case and does greet us with a sense of shock. We are thus compelled to interfere with the said award b earing in mind the cases of Kawimbe vs The Attorney General1 7 and The A ttorne y -General vs Fred Chileshe Ngoma.9 11.12 On this s core we find merit in gr ounds 3 and 4 and uphold them. We accordingly s c l aside the award of 36 months' pay and in its place we award three months' p ay as damages, to include housing allowance and interest at a commercial rate from the date of the judgmen t in the court below. 12.0 Costs J 3 0 12.1 Mr. Nyirenda and Mr. Mataliro both prayed for costs but we wis h to draw their attention to the case of Engen Petroleum Zambia Limited & Another vs Willis Muhanga & Another18 where the Supreme Cou rt guided that in Industrial and Labour Relations matters each party is to bear its own costs "unless one is guilty of unreasonable delay or taking improper vexatious or necessary s teps in any proceedings or the other unreasonable conduct)) 12.2 Similarly in Zambia Na tional Commercial Bank Plc vs. Joseph Kang wa19, it was held inter alia that: "With regard to costs) Rule 44 of the Industrial Relations Court Rules) contained in the Industria l and Labour Relations Act) Chapter 269 of the Laws of Zambia provides that a party should only be condemned in Costs it they have been guilty of misconduct in the prosecution or defence of the proceedings. We wish to adopt the principle in that rule since this is a matter coming from the Industrial R elations Court. We do not find any misconduct in the respondent's defence of this appeal. Therefore) either party will bear their own costs) both here and in the court be low.}) 12 .3 What this enlails is that for on e to be awarded costs it must be shown that lhey have fa ll en into t h e criteria set out in the aforecited Eng en Petroleum 18 a nd Zanaco19 cases. • J31 12.4 The long and short of the matter is that, we see no basis upon which we can award costs to either p in this matter. 12. 5 Each party to bear their own cou ...... 7L ..... =¼ ...... . F . M. Lengalenga . .......... ~ · .......... . COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE