Silumesii v Zambezi Sawmills (1988) Ltd and INDECO Ltd (SCZ Appeal No. 42/1990) [1991] ZMSC 69 (14 February 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 42/1990 HOLDEN AT LUSAKA (Civil Jurisdiction) - ■. -v - .h' FRANCIS SITHALA SILUMESII Appellant and ZAMBEZI SAWMILLS (1988) LIMITED 1st Respondent and INDECO LIMITED 2nd Respondent ■ - ■ - _-T— ■ ----- -------------- CORAM: Ngulube, D. C. J., Gardner, AJ. S. and ChailA, AJ. S., 14th February, 1991. Mr. S. Kakoma of Mundia Kakoma and Co. appeared for the appellant _ Mr. A. G. Kinariwala, Principal Corporation Counsel of Legal Services Corporation appeared for the respondents JUD GMENT Gardner, AJ. S., delivered the judgemnt of the court. Cases referred to: (1) Hlyanda v Attorney General (1985) Z. R. 185 (2) Francis v Municipal Councillors of Kuala Lunpur (1962) 3 All E. R. 633 This is an appeal against a judgment of the High Court refusing to make a declaration that the appellant was entitled to reinstatement in his employment and instead awarding damages for wrongful dismissal. The appellant was employed as a General Manager by the first respondent, and by letter dated 25th of February, 1982 the respondent wrote to the appellant informing him that it had been decided to appoint another officer as General Manager and to senti the appellant on leave whilst his future was being considered. Subsequently on the 18th of November, 1932 the Managing Director of the second .../J2 ... J2 : respondent wrote to the appellant confirming that it had been agreed that the appellant was^eing offered early retirement and that a calculation of whatj his entitlement on early retirement would be forwarded in due course. On the 4th of January, 1983 a letter was sent from the respondent to the appellant setting out details and calculations of what was offered as payment for him on early retirement. The appellant rejected the figures set out by the respondent and the respondent withdrew the offer. After the hearing in the High Court the learned trial judge found that there had been no final agreement as to early retirement, that the appellant was not entitled to reinstatement but that he had been wrongly dismissed.and was therefore entitled to three months salary in lieu of notice and full terminal benefits. In the course of the judgment the learned trial judge said that although the Industrial Relations Court was able to make orders for reinstatement such a remedy was not available in the other courts. ' Mr. Kakoma on behalf of the appellant has argued that the learned trial judge was wrong to say that reinstatement was not available in the High Court and that in this particular case the appellant having done nothing wrong, in fact on the contrary he had benefitted the respondent company, there was no ground for his dismissal from the company and this was a case where reinstatement was an appropriate remedy for somebody employed as the appellant was in the public service. In the alternative Mr. Kakoma argued that higher damages for the breach were due because of the circumstances of the appellant. He maintained that by the breach of contract the appellant had lost eighteen years future employment and should be paid damages for that period. Further in the alternative Mr. Kakoma argued that if there had been an early retirement the amount payable to the appellant should have been calculated as the loss of his future wages for the next eighteen years. In addition Mr. Kakoma maintained that the appellant should have been entitled to a reduced pension or, in the alternative, after it was decided that the appellant was entitled to damages that the order for damages should have made it clear that he was entitled to a refund of his pension contributions as part of his terminal benefits. : /J3 J3 : Mr. Kinariwara for the respondent argued that there was no agreement for even a reduced pension in the light of the fact that the offer made for early retirement had been rejected, and that there was no authority for Mr. Kakoma*s proposittion that a person dismissed or ven retired early was entitled to payment for the future years which he was therefore unable to work. ; > 5* ' sii In considering the arguement put forward by Mr. Kakoma we have to say that apart from the fact that the respondent company is parastatal there is nothin g in the employment of the appellant as Managing Director to entitle/to any special consideration in deciding what remedy is available or calculating what should be due to him. He agree however that thelearned trial judge was wrong to say that the remedy of reinstatement was not available in the High Court. Sucha remedy is of course available but as this court has pointed out in many cases including Miyanda v Attorney-General (1), the principle put forward in the case of Francis v Municipal Councillors of Kuala Lumpur (2) must always be borne in mind by any courts dealing with applications for reinstatement. That is to'say that courts will wdy be prepared to make such orders even where there has been a breach of statutory duty on the part of an employer. Again in this case we can see nothing exceptional for us to treat , the appellant in any way other than similar cases have been dealt with by the court in the past. There is nothing in the emplyment of the appellant to justify our holding that there are-exceptional circumstances in this case to warrant the declaration that he is entitled to reinstatement. As to the question of quantum of damages Mr. Kakoma was unable to give any authority for his proposition that the appellant was entitled to be compensated for eighteen years which he could have worked before retirement. It has always been the policy of the courts to look to the contract between the parties, and, °f there is no such contract as to notice, to look to what is the practice in similar cases to ascertain what notice could have been given to terminate the employment legally, and to award damages calculated in accordance with such notice. In this particular case that is what the learned trial judge did. The offer of payment on early retirement having been rejected we agree with the basic argument of both counsel that J4 ; there was no agreement for early retirement. It follows therefore that the learned trial judge was correct In finding that there had been a breach of contract by failure to give the appellant the appropriate notice. There is in fact a specimen form of contract before the court which indicates that either party could terminate the agreement by ninety days notice and we consider that the learned trial judge correctly made the order in accordance with the principle which we have indicated. We agree with Mr. Kakoma that the reference to terminal benefits in the judge's order should be read to include the refund of the pension contributions made by the appellant. For the reasons which we have given this appeal cannot succeed, it is dismissed with costs to the respondent. H. M. S. W. Ngulube DEPUTY CHIEF JUSTICE /' •* B. T. Gardner ACTING SUPREME COURT JUDGE H. S. Chaila SUPREME COURT JUDGE