Francis Zaza Simenda v Attorney General (Appeal No. 70/2004) [2005] ZMSC 62 (21 October 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 70/2004 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: FRANCIS ZAZA SIMENDA APPELLANT AND ATTORNEY GENERAL RESPONDENT Coram: LEWANIKA, DO., CHIBESAKUNDA and CHITENGI, JJS on 22nd November 2004 and 21st October 2005. For the Appellants: Mr. N. K. Mubonda of Messrs. D. H Kemp & Co. For the Respondent: Non-Appearance JUDGMENT Chibesakunda, JS, delivered the Judgment in Court Laws referred to: 1. Section 2 of the Judgement Act Cap 81 In this appeal, the Appellant had successfully sued the Respondents challenging his dismissal from Zambia Pork Products Limited. The Industrial Relations Court awarded him damages. But the Industrial Relations Court failed to grant him interest from the date of the commencement of the case bf action to the date of payment. : J2 At the hearing of the appeal the Respondents without giving any good reasons : failed to appear before us. Mr. Mubonda who had talked to Mr. Sichinga, Principal State Counsel, expressed surprise at their non appearance. The court, therefore, proceeded in the absence of the Respondents as the court was satisfied that they were not interested in the appeal. Toe brief history of this case is that the Appellant had joined the Parastatal Companies in 1977 as Chief Executive. He served in a number of parastatal bodies. He served at Lakes Fisheries Company Limited, Zambia Oxygen Limited, Indeco Limited, Zambia National Commercial Bank and lastly at Zambia Pork Products as General Manager. So he was a public servant. His case before the Industrial Relations court was that as he was working as General Manager in Zambia Pork Products on a day he could not remember but in July 1995 the workers under him almost rioted when they saw him coming to report on duty. So he had to run away for safety. He stayed away for a period and during that period he received a letter of suspension from Hon. Zimba, Minister of Labour at the time and this was the Ministry, which was the supervisory ministry over Zambia Pork Products. He did not hear from his employer until after six months when again he wrote to the Director of State Enterprises, indicating that he was not going to renew his contract as his contract was coming to an end on the 29th February, 1996. The Director responded to his letter on 1th April 1996. So for him this marked the end of the contract as according to the contract with the Respondent either side had the right to terminate the contract. Subsequently he received a letter from Mr. Mubanga Mushimba cataloging a number of offences he was accused of by the Respondent and in the same letter he was asked to exculpate himself. He refused to respond to this letter because according to him Mr. Mubanga Mushimba had no role in disciplining him. He was then dismissed from the public service. He refused to accept this dismissal as according to him the only person who could dismiss him was His Excellency the President, the person who : J3 : appointed him. He went to Industrial Relations court. The Industrial Relations court agreed with him and ordered that:- "{1) The complainant be paid salary including allowances from July 199S when Mr. Mutinta sent the complainant on rorced eave and later reinforced by the letter of suspension of the Minister of labour without specifying the terms of that suspension up to 2!lh February 1996 when the complainant's contract expired {2} He be paid all his terminal benefits due in accordance with ZIMCO conditions of service for contract Senior Management employees ruling on the date of separation, i.e. 29 February 1996 reflecting the complainant's 24 years of service (3) We order that the complainant be allowed to purchase his personal to holder motor car which is in his possession, in accordance with his conditions of service { 4) We order that the monies due to him accrue interest at Bank of Zambia lending rate from the date of this Judgment to date of payment (SJ We order the costs of this suit be borne by the Respondent, in case of disagreement to be taxed by the Hon. Registrar (6) We order that the payments be effected by the Ministry of Finance and the same be facilitated by and from any sales proceeds of the Zambia Privatisation Agency (ZPA). The Industrial Relations Court as per Point 5 in its order awarded him interest at the Bank of Zambia lending rate from the date of its Judgment to the date of payment. He has come t o t his court aggrieved by this order. We have looked at this issue under Section 2 of the Judgment Act (1), the High Court or Subordinate Court is under a statutory duty to award interests on damages granted to a litigant at the current Bank of Zambia deposit rate from : J4 : the date of commencement of the action to the date of judgment. The court is also statutory bound to award interest at the Bank of Zambia lending rate from the date of Judgment to the date of payment. This Section does not include awards of the Industrial Relations Court. However, we are persuaded by a parity of reasoning to treat the Industrial Relations Court awards in the same way because once a court makes an award that award becomes a Judgment debt. It is money owed to the litigant by the Judgment debtor and in all fairness that debt must attract interest. We hold therefore that, even taking into account the well established principle that awarding of interests is entirely in the discretion of the court, there is merit in the appeal. We order that the damages awarded in (1) and (2) carry the· Bank of Zambia short term deposit rate from the date of commencement of the Appellant's suit up to the Industrial Relations Court's Judgment and thereafter carry the Bank of Zambia lending rate up to the date of payment. We also ask the Respondents to bear the costs, to be agreed on, in default to be taxed. D M Lewanika DEPUTY CHIEF JUSTICE L P Chibesakunda SUPREME COURT JUDGE P. Chitengi SUPREME COURT JUDGE