Ernestina Musyani (Suing as administrator of the estate of the late Marcel Ranwell Musyani) v Zambia Railways Ltd (SCZ Appeal 42 of 2000) [2002] ZMSC 107 (17 May 2002)

1 . IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: SCZ/APPEAL 42/2000 ERNESTINA MUSYANI (Suing as Administrator of the Estate of the Late MARCEL RANWELL MUSYANI) Appellant AND ZAMBIA RAILWAYS LTD. Respondent CORAM: Ngulube C. J., Chirwa and Muzyamba JJs on 7th November 2000 and 17th May 2002. For the Appellant: Mr. N. Okware, Okware Associates Mrs. G. Mukhata, Corpus Globe For the Respondent: Mr. D. O. Sakala, Verity and May Chambers JUDGMENT Chirwa, J. S. delivered judgment of the Court: - Cases referred to: 1. 2. 3. Friday Ngwira V Zambia National Insurance Brokers Ltd. [1993-94] Z. R. 140 ZCCM V Matale [1995-97] Z. R. 144 Chileshe V ZCCM [1995-97] Z. R. 148 The late delivery of this judgment is deeply regretted especially taking into consideration of our decision. : J2 : The appeal was heard before the demise of our late brother, Hon. Mr. Justice Muzyamba and this judgment therefore should be taken as majority judgment. The action was commenced at the Industrial Relations Court by the late MARCEL RANWELL MUSYANI. The complaint was brought under the then Section 129 (2) of the Industrial Relations Act of 1990 and his complaint was that he was discriminated against on account of his social status as a junior in the bracket of Senior Management Personnel on his retirement in that he was forcibly retired on 7th May 1992 before attaining the age of retirement and without being heard. The remedy he sought was a declaration that his retirement was wrong or unlawful in that he was discriminated against on social status as a junior in the bracket of his Senior Management Personnel to which he belonged in that whereas all persons who retired, retired voluntarily or after attaining the normal retirement age. After trial at which the deceased led evidence on his own behalf and the then Managing Director of the respondent and Insurance Manager gave evidence on behalf of the respondent, the trial court found as a fact that the appellant joined Rhodesia Railways on 14th December 1964 and was retired from the respondent on 7th May 1992. The court found that the Section under which the appellant brought the action, wrongful or unlawful retirement on social status was not available but that under Sub-Sections 1 and 2 of the Section employees could go to court when their services were terminated discriminatory on the grounds specified therein seeking either the equitable remedy of reinstatement or compensation for the loss of the job. However, the trial court held that the complaint could be brought under Section 129 (2) of the repealed Act seeking for a declaration that the termination was discriminatory on any of the specific : J3 : grounds under Sub-Section 1. The matter was concluded on 3rd August 1994 and at that time this court had rendered its judgment in the case of FRIDAY NGWIRA V ZAMBIA NATIONAL INSURANCE BROKERS LTD, in which it was stated that "Social Status" in the Act meant social status of a person's standing in society generally and not at one's place of employment. The court found it difficult to distinguish the NGWIRA case from the appellant's case so as to make a decision in the matter. The court found it unnecessary to delve into the facts of the case and submissions by Counsel and the appellant's case was therefore dismissed. It is the refusal by the Court to make a finding on the facts of the case and determine accordingly that the appellant has appealed against. The memorandum of appeal contained 5 grounds of appeal and these were: - (1) The learned trial court erred in law and fact by not delving into the facts, merits and submission of the case. (2) The honourable court erred in law and fact by refusing and/or failing to make a finding of facts of the case and not inquiring into the real causes given for the termination of the employment of the complainant. (3) The learned trial court erred in law and fact in not inquiring into whether the appellant's employment had been properly terminated in order to address the real injustice caused to and complained by the appellant, particularly that the appellant had not reached the retirement age of 60 and had not consented to an early retirement (4) The learned trial court erred in law by fettering its jurisdiction and restricting itself only to interpretation of discrimination on the ground of social status without making any attempt to address other issues contrary to the decision of the NGWIRA case. (5) That in any case, the construction of social status in the NGWIRA case has been revisited by the Supreme Court in the case of ZCCM V MATALE [1995-971 Z. R. 144. : J4 : At the hearing, counsel had filed detailed heads of arguments and we feel that there is no need to go into them in detail. It is sufficient to accept that the trial court made no findings on facts, whether there were merits or otherwise in the claim. And we agree that had the court availed itself to our judgment in ZCCM V MATALE (2) case it could not have fettered itself thereby failing to do substantial justice. The present case is on all fours with case of CHILESHE V ZCCM [1995-97] (3) where the Industrial Relations Court declined to delve into the facts of the case. In the CHILESHE case this court advised that the NGWIRA case has to be modified and varied so as not to be or to give the impression of being exhaustive, exclusive or too categorical on the question of social status and the relationship with the place of work. It should be added that a mere mention of "social status" should not prevent the court from delving into the facts of the case and make a finding and doing substantial justice. In the present case, the court never made any findings on the evidence before it. The failure by the lower court to make any findings on the evidence before it was a misdirection especially that the court below did not have sight of our decision in ZCCM V MATALE. The Industrial Relations Court is to do substantial justice. The court did acknowledge that the respondent could have had a remedy under Section 129 (2) of the repealed Act and we agree with it. If there was no discrimination on social status, there was other form of discrimination, namely that he was the only one in the Managerial Scale who was differently treated because he was junior in that bracket. With the finding of the lower court that the appellant could have successfully brought the action under section 129 (2) of the repealed Act, this court is in an equal position to decide whether in fact there was any form of discrimination as alluded to by the lower court and we so find that he was unfairly treated and his services unfairly terminated. : J5 : On damages, we note that there was a special package given to the appellant, unlike what was paid to others who were allowed to retire in the normal way. To do substantial justice, we cannot award the appellant salary up to when he would have retired normally. We therefore, in addition to the package offered to him, award 2 years salary calculated at the rate when his services were wrongfully terminated. The award will carry interest at the short­ term deposit account from this judgment bearing in mind that the appellant took five years to lodge the appeal. We award costs to the appellant. M. M. S. W. NGULUBE CHIEF JUSTICE D. K. CHIRWA SUPREME COURTJUDGE