Banda and Ors v Bank of Zambia (SCZ Appeal 69 of 1997) [1998] ZMSC 98 (30 October 1998)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO, 69/97 HOLDEN AT LUSAKA, (Civil Jurisdiction) JOACHIM GABRIEL CEPHAS BANDA APPELLANT AND OTHERS AND BANK OF ZAMBIA RESPONDENT Coram: Sakala ADCJ, Chaila and Muzyamba JJS. 13th October and ,.30th October,1998. For the Appellants: Mr. M. Chona, S. C. of Mahaci Chambers with Prof. M. P. Mvunga of mvunga Associates. For the Respondent: N/A ________________________ JUDGMENT_____________________________ Sakala ADCJ delivered the judgment of the court. Cases referred to: 1. 2. Thyne VThyne (1955) P. 272. Harrison V Harrison (1955) CH 260. We decided to hear this application in the absence of the respondents in terms of Rule 70 of our Supreme Court Rules because we had no explanation from the respondent for their absence and because the matter had been dragging on for a long time. This is an application by way of a notice of motion seeking for an order of the court that the judgment of this court delivered on 12th December, 1997 be varied on the ground that the court misdirected itself to hold that Mrs. Zulu had submitted that the appellants should officially be deemed as having been declared redundant on the dates each one was unlawfully declared redundant. The original motion and the supplementary motion had contained several grounds but were abandoned except the above ground. The original motion was supported by two affidavits sworn by one Dominic Musonda Chisembele, one of the appellants. On 25th February 1998 these affidavits were “unreservedly” withdrawn. As a result of this course of action, on 23rd of April, 1998 Mrs. Zulu, then appearing as counsel for the appellants, filed an affidavit in support of the motion sworn by herself. Paragraphs 5-7 of Mrs. Zulu’s affidavit read: “5. That this matter was tried in the lower court wherein the appellants lost and subsequently appealed to the Supreme Court where the appeal was heard on the 14th and 15th of October, 1997 respectively. On the 12th of December, 1997 the Supreme Court delivered Judgment through Honourable Sakala (JS). The judgment was availed to us on the 9th January, 1998 and upon reading it, one accidental slip was discovered as hereunder, indicated leading to serious errors in our Lordships judgment: (I) On page JI 7 in paragraph three (3) of your Lordship judgment when your Lordships uphold my Argument but concluded negatively that the appellants should be deemed to have been retrenched from the date they were declared redundant to the date of your Lordship’s judgment. 6. 7. That interest should run from the date each one was unlawfully declared redundant to date of payment. That under rule 78 of the Rules of the Supreme Court this honourable court is vested with power to revisit such slips or omissions and correct them for fairness to both parties. In this regard our clients ought to be deemed as having been retrenched from the date of this judgment with full benefits from the date each one was unlawfully declared Redundant to this judgment. The rest of the judgment should remain unaltered.” In arguing the application on behalf of the applicants Prof. Mvunga submitted that the court having “agreed” with the submission of Mrs. Zulu that “the structure of the respondent having greatly changed from the time of the implementation of the purported redundancy exercise, the interest of justice would now demand that the appellants be deemed to have been retrenched from the date of this judgment,” then the formal award made by the court did not reflect Mrs. Zulu’s submission as the court went on to hold that each appellant be deemed to have been retrenched on the date each one was declared redundant. It was the Professor’s submission that since the court “agreed” with Mrs. Zulu’s submission the court was asked in terms of Rule 78 to correct the error or slip in relation to the effective date of the retrenchment to be the date of this court’s judgment and not from date of actual declaration of the redundancy. The Professor also drew the attention of the court to what he termed as two relevant matters. The first was that the court having held that the initial redundancies had no effect, the result was that the appellants were still in employment. The second factor was that the court having found that the appellants did not take part in the redundancy package, this meant the package in terms of the law was not ratified. The Professor submitted that the two factors may persuade the court to find it compelling to reconcile the appellant’s status at law in terms of the benefits they are entitled to. According to counsel if the court agreed with the submission then the appellant’s benefits will have to be reconciled with their status from the date of judgment. The Professor also pointed out that the type of error could be cured without substantially altering the judgment of the court. Counsel referred to the cases of Thyne V Tliynef 1) and Harrison V. Harrison (2) where according to him this type of error was cured by the court. The Professor concluded his submissions by stating that the appellants being deemed redundant from date of redundancy is not consistent with the court’s decision. He urged the court to correct the error by holding that: (a) appellants be deemed retrenched from date of this court’s judgment; (b) (c) Salary and benefits be payable to each appellant up to date of this court’s judgment; Interest to run from date each one was declared redundant to the date of this court’s judgment. He pointed out that in all these submissions the critical date is the date of this court’s judgment since the dispute was only determined by this court. Mr. Chona supported the Professor’s submissions. We have very anxiously reflected on our judgment and on the very persuasive submissions by the Professor. We have no doubt that the Professor’s submissions are economically attractive and that if accepted they would tremendously boost the appellant’s economic status today. But we are not oblivious to the fact that we are a Court of Law and not a lottery of some kind. As a Court of Law we administer justice and not economic morals. In administering justice inevitably our decisions may appear harsh on some of the litigants and even cause untold hardships. But the guiding principle must also be what is conscionable and what is unconscionable. Quite clearly unjust enrichment would be deemed unconscionable. We want to believe that our judgment of 12th December 1997 was not deliberately misinterpreted to suit one side only. For avoidance of any further misinterpretation we propose to set out the crucial passage first as understood by the appellants and secondly as decided upon by this Court. The passage reads: “Mrs Zulu, properly so, pointed out that in the event of the appeal succeeding and bearing in mind the respondent’s changed position, the appellants should be deemed to have been retrenched from the time they were declared redundant to the date of this judgment. We agree that as a result of the restructuring exercise, as shown by the facts on record, the appellants cannot be accommodated back into the Bank and it would be extremely unrealistic to order reinstatment in the circumstances of this case when an alternative and adequate remedy would be available in the form of damages.” Examining this passage very critically two questions arise namely; what did Mrs. Zulu say and what did the court agree with from what Mrs. Zulu said. We have no difficult in answering both these questions. Mrs. Zulu said two important things which had the bearing on our judgment. First; that the respondent’s position had changed. Secondly, that in the event the appeal succeeded, the appellants should be deemed to have been retrenched from the time they were declared redundant to the date of this judgment. These are the two parts of Mrs. Zulu’s submission. In our judgment we agreed with Mrs. Zulu’s first part only of her submission and said: “Having adjudged that the redundancy exercise was unlawful for non compliance with the law, we agree that the appellants should be deemed to have been retrenched but on the date each one of them was declared redundant.” Putting it differently we agreed with Mrs. Zulu that “the appellants should be deemed to have been retrenched...” We did not agree with her on the expiry date of that retrenchment and hence we said “.... but (the retrenchment be) on the date each one of them was declared redundant”. Mrs. Zulu wanted the date to be the date of our judgment. We adjudged the date to be the date that each one was declared redundant. Indeed Mrs. Zulu’s date is economically very attractive. But in our opinion it would have been unconscionable and unjust enrichment to agree with Mrs. Zulu’s date. We find no error or slip in our judgment of 12th December, 1997. What is clear in this motion is that the appellants want us to rewrite our judgment to suit their desires. The other matters raised by the Professor as relevant factors are not supported by law. Wrongful termination terminates employment. Equally a null and void decision with no effect, terminates the employment but wrongfully, thereby entitling the employee to damages. This motion is dismissed The respondent having not appeared we make no order as to costs. E. L. Sakala, ACTING DEPUTY CHIEF JUSTICE. M. S. Chaila, SUPREME COURT JUDGE. W. M. Muzyamba, SUPREME COURT JUDGE.