Daka and Anor v Zambia Consolidated Copper Mines Ltd (SCZ Appeal 117 of 1997) [1999] ZMSC 65 (2 March 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No.117 OF 1997 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: REDDY DAKA DAVID KANTUMOYA AND 1ST APPLICANT 2ND APPLICANT ZAMBIA CONSOLIDATED COPPER MINES LIMITED RESPONDENT Coram: Ngulube C. J., Muzyamba and Lewanika JJS 2nd December 1998 and 2nd March 1999 For the 1st Applicant: In Person For the 2nd Applicant: In Person For the Respondent: P. M. Chamutangi, Legal Counsel ___________________ JUDGMENT Muzyamba, J. S. delivered the judgment of the court. This is a motion under Rule 78 of the Supreme Court Rules, Cap 25 to correct accidental slips in our judgment delivered on 3rd March 1998. It is supported by an affidavit jointly sworn by the applicants. Paragraphs 5, 6, 7 and 8 of the affidavit read as follows: *5. That this honourable Court on 3rd day of March 1998 delivered Judgment in favour of the Respondent and ruled that we are only entitled to damage in accordance with the Notice period and totally disregarding the fact that the Appellants, who are the Respondents herein had earlier on given us the 14 days suspension with a final warning and following day recalled us and gave us letters of dismissal. 6. That as such, the Notice period cannot be applicable to us but should be treated as having been retired. 7. That we humbly submit that there are extenuating circumstances which warrant us to be treated as having been retired and therefore must be paid in accordance with the retirement package. J2/... : J2 8. That we humbly urge your lordships to review our case as we think there was a slip by your lordships in arriving at your conclusion." In their submissions the applicants argued that this was a special case and as such they should have been treated or regarded as having been pruned or declared redundant and therefore entitled to terminal benefits for years worked. That in addition to terminal benefits for years worked and salary arrears from the date of their dismissal to the date of the judgment in the court below they were also entitled to damages for breach of contract and allowances like bonus and leave pay. That only salary arrears were paid to them and for this reason they prayed that we correct our judgment delivered on 3rd March 1998 by ordering that they be paid terminal benefits, damages for breach of contract and allowances. Mr. Chamutangi left it to the court to decide. We have examined the pleadings and proceedings before the learned trial Judge and his judgment and also the proceedings before the learned District Registrar and also our judgment delivered on 3rd March 1998 and we are unable to find any slip or error In our judgment. We say so because terminal benefits were never an issue in the court below and in cases of wrongful dismissal the measure of damages is a salary equivalent to the period of the notice required to terminate employment plus allowances, if any. There is no separate award for 'damages* as such. The applicants therefore misapprehended the judgment of the court below by thinking that in addition to salary arrears and allowances they were also entitled to separate damages for breach of contract. As regards leave pay and allowances we found at page J5 of our judgment that these were paid. We therefore find no merit in the application. It Is dismissed with costs to be taxed In default of agreement. KM. S. W. NGULLBE CHIEF JUSTICE W. M. MJZYA«A SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE