Raymond Mupela v Engineering Services Coporation Limited (APPEAL NO. 218/2015) [2018] ZMSC 612 (2 October 2018)

SELECTED JU~JiME NT NO. 4 1 O F 2 0 18 P. 1 4 3 2 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 218/2015 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: RAYMOND MUPELA AND APPELLANT ENGINEERING SERVICES CORPORATION LIMITED RESPONDENT Coram: Mambilima, CJ, Malila and Musonda, JJS on 7 th August, 2018 and 2 nd October, 2018 For the Appellant: N / A • For the Res p o nde n t: • • Mr. D. K. Kasote, Chifumu Banda & Associa t es • • JUDGMENT MUSONDA, JS, delivered the Judgment of the Court Cases referred to: I 1. Winford Kapota & Helen Namuchimba Engineering Services Corporation Limited: 2004/HP/063 2. Zambia Telecommunications Ltd. v. Bernard Aaron Sakala: Appeal No. 152 of 2010 3 . ZIMCO Limited (in liquidation) & Another v. Michael Malisawa & Others: Appeal No. 139 of 2000 (SC) 4. Albert Corrigan v. Tiger Limited and Abd, Jumale (1981) Z. R. 80 5. Kridge and Another vs Christian Council of Zambia 1975 ZLR P . 152 I .. , . ' l; J 2 P. 1433 6. NFC Africa Mining PLC v. Lofoyi Enterprises Limited: SCZ Appeal No.27/2006 7. Davies v. Powell Duffryn Collieries [1942)' A. C. 601, at pages 616-617 8. Reaney v. Co-operative Wholesale Society [1932] W. N. 78 9. Flint v. Lovell [1935] 1 K. B. _354 10. Benham v. Gambling [1941] A. C. 157 11. Murray v. Shuter [1976] Q. B. 972 t Legislation referred to: 1. The Companies Act, Chapter 388 of the Laws of Zambia 2. The Privatisation Act, Chapter 386 of the Laws of Zambia 3. Section 25(1) of the Supreme Court Act, Cap. 25 4. Rule 72 of the Rules of the Supreme Court • Other Works referred to: • • 1. McGregor on Damages ( 1988 Sweet & Maxwell: 15th edition) 2. Burton Michael (Sir), Civil Appeals (2013: Sweet & Maxwell: London) 3. Lewis, J. R ., Civil and Criminal Procedure (London Sweet & Maxwell 1968) 1.0 INTRODUCTION 1.1 This appeal contests a judgment on asses s m ent of damages which was h a nded down by the Hon. the Deputy Director following an a s sessment of what we h a ve chosen to describe as a purported 'redundancy package' which was undertaken '· \: J 3 P. 1434 purs uan t to a judgment of a High Court judge sitting at Lusaka. 2.0 HISTORY AND BACKGROUND 2. 1 The history and background facts and circumstances surrounding this appeal, so far as they are relevant to the issues a t play in this court, are as plain as can possibly be. 2.2 The res pondent was, at all relevant times, a state--o":'ned corpora t ion which had be en incorporated pursuant to the provisio n s of the Compa nies Act, then being Chapter 388 of • • • • th e Laws of Za mbia. In this judgment we shall alternately continue to refer to the respondent either as "the company" or "the res pondent". 2.3 , The compa ny was s ubsequently tranched for or became the' subject of priva tiza tion under the Zambian Government's Priva tisation Programme sometime between 1993 and 2000 . According to the record, the process of privatizing the r esp ondent a ctually started in the year 2000 . 2 .4 Following the death of the company's Managing Director, a d ecis ion was tak e n by the compa ny's Board of Directors to • I I I I I i I ,, Ii !1 l, l 1: 1' 1: I, \1 i ! I, ,, i' ii " I' I: 1: ,. \: l ' ; 1: :: ,, 1· i I ,: ,, i \· I \ J4 P. 1435 engage a replacement who was to serve on the basis of a fixed short-term contract which was to be renewed, if necessary. 2 .5 On 6 th May, 2003, the respondent executed a written contract of employment with the appellant. In terms of that contract, the appellant was engaged in the position of Managing Director for a period of six months. As noted a moment ago, this contract was renewable at the option of the respondeqt. 2.6 Among other terms , that contract of employment provided that the a ppellant was to receive or be paid gratuity and other • • • ·entitle m ents a t "the end of its fixed duration. 2. 7 Accordin g to th e re cord, the appellant successfully served four (04) s hort-tenn fixed employment contracts, with each such contract, lasting a p eriod of six n1onths., 2.8 Upon the expiry of each of the short-term contracts 1n question, the appellant had been paid terminal benefits comprising gratuity and payment in lieu of leave, otherwise known as leave days' pay. 2. 9 Following the expiry of the 4 th of his six-month contracts on 6 th Nove mber, 2005 , the appellant's employment contract was JS P. 1436 renewed for a further six-month period. This 5 th contract commenced on 5 th November, 2005. 2.10 Following the discovery, by the respondent's Board of Directors, that the appellant had 'helped himself to a total of K350,000,000.00 of the respondent's money without the respondent's authority or in clear abuse of the authority of his office, the appellant was summarily dismissed on . 4 th March, 2006. 2.11 Sometime in February, 2007, a writ of summons was taken • • • out in the High Court of Zambia on behalf of the appellant in • • which the appellant sought the following reliefs: "(a) damages for wrongful termination of employment; (b) payment of terminal benefits in the sum of I K613,690, 702; (c) damages for mental stress, anguish and inconve nience; and (d) damages for malicious prosecution." 2.12 The appellant subsequently amended his writ of summons and statement of claim by enhancing the terminal benefits he was seeking to KS 19,434,240.40. J6 P. 1437 2. 13 It is worthy of note here that one of the averments in the appellant's statement of claim which he filed in the court below was to the effect that he was one of the employees of the respondent who had been declared redundant as a result of the privatization of the respondent. 2 .14 In its defence and counter-claim, the respondent (defendant below) admitted or purported to admit the averment which touched upon the redundancy which has been adverted to in the preceding paragraph. 2.15 Quite aside · from making· the admission which • • we momenta rily adverted to above, the respondent averred in its defen ce a nd counter-claim that the appellant's employment was terminated by way of summary dismissal for using the I 1. respondent's K350,000,000.00 (unrebased) without the approval or authority of the respondent's Board or the Zambia Privatisation Agency (ZPA) which had been legally mandated to privatise the respondent in accordance with the provisions of the Privatisation Act , Chapter 386 of the Laws of Zambia. ,]7 P. 1438 2 · 16 Following the settlement and closure of pleadings by the parties, the matter was tried in the usual way before a judge of the High Court of Zambia. 2. 1 7 During the course of the trial, evidence was led on behalf of the respondent to the effect that the appellant had been employed on fixed six-month short-term contracts which were renewable at the instance of the responde_nt. The respondent's witness further confirmed that the appellant's short-te rm employment contracts were successfully renewed five times. • • 2.18 The res pondent's witness further testified that, following the appellant's misconduct relating to his use of the respondent's money without the respondent's or ZPA's authority, the appellant was summarily dismissed. The witness made it categorically clear before the trial court that the appellant was not declared redundant and added that, as the company was undergoing privatization at the time, a deliberate decision had been made to replace the company's deceased Managing Director with someone who was going to be employed on a . ' ; I I P. 1439 renewable short-term contract so that that person was not going to be affected by any redundancy issues. 2.19 To reinforce her point in 2 . 18, the respondent's witness told the trial court that when ZPA noted that the appellant had included his name on the respondent's redundancy schedule which he had submitted to that Agency, he was specifically instructed not only to remov~ _his name from the schedule b_ut to remove the name of any other employee who, like himself, had been on contract. 2.20 The responde nt's witness also testified before the trial court • • • • that as a short-term contract employee, the appellant was being paid gratuity as well as leave days' pay at the expiration it:, " I I of each one of his short-term contracts. The witness also I made the point before the trial court that, following his dismissal, the appellant was paid his salary and leave days' pay but that, as an employee who had been summarily dismissed for gross misconduct, no other benefits were payable to him. J 9 P. 1440 2. 2 1 In its judgment, the trial court accepted that the appella nt had abused his office and that his dismissal was,= under those circumstances , justified. 2.22 With regard to the issue of terminal benefits, the trial court reasoned as follows: "The [respondent] having admitted fin its defence] that the [appellant] was declared redundant, no issue could be raised on the point. I am satisfied ... that the [appellant} was declared redundant as pleaded and admitted. He is, as a result, e ntitled to a redundancy package" (trial • .court's emphasis) . • 2 .23 Th e trial court accordingly proceeded to enter judgment 1n favour of th e appella nt for redundancy benefits which were to be ass essed by t h e Deputy Director. In addition, the learned judge entered judg'm ent in favour of the respondent for the I I sum of Kl 15,710, 625 a nd for the money which had been overpaid to the a ppella nt by way of his gratuity. 2. 24 Following the entry of the above judgment, an assessment wa s underta k e n by the Hon. the Deputy Director who, after I I I I \ l I I ! JlO P. 1441 conducting the relevant trial, made the following findings of fact: (a) that the appellant had worked for the respondent for a period of 6 months, that is, from 6 th May, 2003 to 31 st October, 2003, prior to being declared redundant; t • (b) that, after 31 s t October, 2003, the appellant wa;._~;+ , __ ~~;~:~"::. - ~ engaged on a 6-month fixed term contract wh~c-1_:\-. __ :,_.; · -, was renewable; and . - (c) that the appellant's redundancy package had to be computed for the period referred to in (a) above . • • • 2.25 We pause h e re to note that in her judgment on assessment, the assessing Deputy Director observed that the appellant had been declared redundant as a result of the respondent's ( , , , I privatization by way of asset sale.' 2.26 According to the assessing Deputy Director, the appellant was declared redundant on 31 s t October, 2003 and that this fact meant that he had only been employed for a period of six months, that is, from 6 th May to 31 st October, 2003. The court noted , in this regard, that the appellant stood redundant as I l I I i l Jll P. 1442 at 31 st October, 2003 and that, by reason of the aforestated, his name was on top of the list of the respondent's employees who had been declared redundant as at that date. 2.27 Having regard to the conclusion which the Deputy Director reached as we have highlighted in paragraph 2.26, she proceeded to observe that the appellant's redundancy package could only be computed with reference lo the period 6 th May to 31 s t October, 2003. For this reason, the assessing Depu ty Director reasoned that the appellant's redundancy • package could only be computed on the 'basis of the terms and conditions which had been prevailing in the respondent corporation as at 31 s t October, 2003. 2 .28 The learned assessing Deputy Director also appears to have I I accepte d the reasoning of Kakusa, Jin a High Courtjudgment involving the appellant's former colleagues in the case of Winford Kapota & Helen Namuchimba Engineering Services Corporation Limited 1 when the learned judge said : " ... an employee whose fixed term contract has come to an end cannot in law and logic be d eclared redundant because such contracts come to an end by effluxion of t Jl2 P. 1443 time ... fixed term contracts exclude all other aspects outside those contracts. '' 2.29 An issue about which the assessing Deputy Director entertained no doubt was the fact that the trial court's pronouncement on the issue of the appellant's entitlement to a redundancy package was clear given that the respondent had failed to challenge the issue and had, in fact, admitted the same in its defence. 2.30 The clear picture which emerges from the narrative in the immediately preceding pa~sages is that, consistent with-the judgm ent of the trial judge, the a ssessing Deputy Director had proceeded to assess the 'redundancy package' which was due to the appe llant a long the following lines: (a ) that the amount which was found to have been due to the a ppellant was K399,464,487.67; (b) that the amount in (a) above had to be netted from a total sum of K773,736,202 .90 which the Deputy Registrar determined as having been due to the respondent on account of its counter-claim as canvassed above; and Jl 3 P. 1444 (c) that by reason of the matters in (a) and (b) above, a net sum of K374,273,715.23 was due from the appellant to the respondent. 3.0 THE APPEAL AND THE GROUNDS FOR THE SAME 3.1 The appellant was not satisfied with what the assessment exercise before the Deputy Director yielded and has now t appealed to us on the basis of the following grounds: "1. The learned Deputy Director erred in law and in fact when she failed to evaluate the evidence before her correctly and effectively contrary to the Judgment of Hon. Mrs. Justice F. M. Chisanga, which judgment determined that the appellant • • was entitled to a redundancy package in line with the • applicable conditions of service as an accrued entitlement not negated by his subsequent dismissal. 2. That the learned Deputy Director erred in law and in fact by not calculating the appellant's terminal benefits to include allowances as pleaded in the Statement of Claim and in the I Re-Amended Statement of Claim contrary to the aforesaid Judgment of Hon. Mrs. Justice F. M. Chisanga. 3. The learned Deputy Director erred in law and in fact and misdirected herself that the appellant was after 31 st October 2003 not entitled to redundancy package as he was engaged on contracts and therefore worked out his benefits on the 2003 salary and not on his last salary as at 4th March 2006 contrary to the applicable conditions of service." Jl4 P. 1445 4.0 THE ARGUMENTS ON APPEAL Counsel for the two parties filed their respective Heads of Argument to support their respective positions in the appeal. 4.1 Arguments Supporting the Appeal 4.1. l Counsel for the appellant prefaced the appellant's arguments with some general observations in which he indicated that the appellant had been employed as the respondent's managing director but that he was subsequently declared redundant. 4.1.2 Learned counsel then went on to confirm, in particular, that the appellant had been serving on fixed short-term contracts • • which were renewable at the instance or option of the respondent. 4.1.3 Learned counsel further confirmed that, following the termination of the appellant's last contract on 4 th March, 2006 I in accordance with a resolution which was passed by the respondent's Board of Directors, the appellant instituted an action in the court below seeking to recover the sum of K8 l 9,434,240.40 by way of his 'redundancy package'. JlS P. 1446 4.1.4 Following the trial of the appellant's a c tion, the learned trial judge handed_ down her judg:µient in which she said: "On the foregoing, it is clear that a party cannot s et up a case at variance with his pleadings. He is bound by his pleadings. To set up a story all toge the r differing from the position stated in the pleadings w ould in fact impair the cre dibility of a witness who atte mpts to depart from the T}1atter as ple aded . The defendant having admitted that the Plaintiff was d eclared redundant, no issue could be raised on the point. I am satisfied therefore that the Plaintiff w as d eclared redundant as pleaded and admitted . He is, as a result, entitled to redundancy • • p ackage in line with the applicable Conditions of S e rvice. • • • It is an accrued entitlement, not negated by the s ubsequent d ismissal." 4.1.5 Specifically a dd ress ing the grounds of a ppeal as had been set but in the m emora ndum of appeal, the appellant's counsel I l conte nded, in respect of the first ground, that the appellant had been serving pur suant to short-term contracts of six months duration from 2003 to 2006. Counsel went on to confirm that, the appellant's last contract was terminated be fore it could run its full life of six months . Counsel then J16 P. 1447 reproduced the passage which we adverted to in 4.1.4 above for the purpose of advancingithe point that the trial judge had pronounced the fact of the appellant having been entitled to a redundancy package consequent upon the respondent~ admission of this fact in its defence. 4.1.6 However, learned counsel criticized the assessing Deputy Director for h a ving allegedly departed from what the· trial judge had pronounced in the appellant's favour. In this regard, counsel argued that, having been serving as the rtsponden t's managing directo~ the appellant's redundancy • package could not have been computed on the basis of the p eriod 6 t h May, 2003 to 31 st October, 2003 which only represented the period when the appellant served his first of 'several contracts. I 4.1. 7 In the view of the a ppellant's counsel, the appellant, having been serving as the respondent's managing director was expected to b e the las t person to leave the respondent con sequent upon its privatization by way of asset sale . For this reason, counsel argued, the appellant's redundancy J]7 P. 1448 package ought to have been computed in a way that represented the entire period covering 6 th May, 2003 up to 4 th March, 2006 being the date when his contract was terminated. 4.1 .8 The appellant's counsel went on to contend that the parties' pleadings were clear in that the fact of the appellant having b een decla red redundant had been readily admitted by the respondent (in its defence) and that the same ought not to have been the subject of interrogation by the learned Deputy Birector. • • • 4. 1. 9 According to the appellant's counsel, even the conditions under which the a ppe llant had been serving entitled him to have his redundancy b en e fits computed on the basis of his I I I I last drawn salary which was stated to have been KS,339,548 .00 4.1.10 With regard to the position of the law, the appellant's counsel drew our attention to our decision in Zambia Telecommunications Ltd. v. Bernard Aaron Sakala2 in . ' Jl8 P. 1449 which we said, quoting our earlier decision in ZIMCO Limited (in liquidiation) & Another v. Mi~hael Malisawa & "In employment cases, what determines an employee's entitlement are the conditions of service an employee is employed under." 4 .1. 11 Adverting to the matter at hand, counsel argued that the ~ Deputy Director did not follow the appellant's conditions of service with respect to allowances which had ben pleaded, admitted a nd upheld by the trial judge. 4.1.12 According·to the appellan1:'s counsel, had the assessing • • court ta k e n into account all the appellant's allowances, namely, e ntertainme nt (K500), water (K200), telephones (K500,000), talk time (K500,000), education (K3,416,667), I medical (Kl,334,887), security (K912,000), servants (Kl ,368,000) and newspapers (252,000), the appellant's total redundancy package would have been K819,934,240.40. 4.1.13 With regard to the second ground of appeal in respect of which the assessing Deputy Director was criticized on account of her failure to include the pleaded allowances in her J19 P. 1450 computation of the appellant's terminal benefits, couns el for the appellant felt content to rely upon his submissions and arguments under the 1 st ground of appeal. 4.1.14 With regard to the 3rd ground of appeal, the appellant's counsel faulted the assessing Deputy Director for having taken the view that, as the appellant had been engaged on . -~ ) ' contract, h e was not entitled to a redundancy package beyond .. ,- 3 1 s t Oc tobe r , 2003. On this basis, the Deputy Director r ea son ed t h at, the appellant's benefits could only be • computed on his October, 2003 salary and not as his counsel • is now con te nding, on the basis of the salary he was receiving at the time whe n his employment contract was terminated on 4 th Ma rc h , 2 006. 4.1. 15 The appella nt's counsel stoutly criticized the Deputy Director's computation of the a ppellant's b enefits on the basis of the duration of his initial six-month contract which lapsed on 31 s t October 2006 . 4.1.16 According to the a ppellant's counsel, the learned Deputy Director erred a nd ought to have computed the appellant's J20 P. 1451 benefits on the basis of the cumulative total of ~he duration of all his short-term contracts and not just the first or initial one. 4.1.17 The appellant's counsel further contended that the trial judge had not, in her judgment, restricted the period over which the appellant was to recover his _redundancy benefits to six months as the Deputy Director had concluded. The appellant's counsel opined that as the appellant's final contract ran up to 4 th March, 2006, his redundancy package • ought. to have been ·computed up to that date. ·counsel accordingly urged u s to allow the appeal. 4 . 1.18 Responding to the appellant's arguments, counsel for the responde nt argued grounds one and three together. He I I I started off by advancing the simple point that the assessing Deputy Director was right when she restricted the appellant's recovery of his redundancy package to the initial six-month contract. 4.1.19 With regard to ground two, the respondent's counsel supported the Deputy Director's approach and determination J 2 1 P. 1452 as to what had constituted the appellant's appropriate entitlement. In this regard, counsel argued that the appellant had not established the basis of his entitlement to the allowances which were the subject of the appellant's complaint under ground 4. We were urged to call to mind the observations we made in Albert Corrigan v. Tiger Limited - and Abd, Jumale4 where we said: ,. · "Before [an] appellate court can properly interfere with the quantum of damages it must be satisfied that the· judge, in assessing the damages, applied a wrong principle of law ... " • • We were accordingly urged to dismiss. this appeal with costs. · • 4.1. 2 0 At th e h earing of the appeal, and for reasons which will become clear s hortly, we felt inclined to put a few questions to senior couns el ' Mr. Kasote , 'who appeared for the respondent. Foremos t a 1nong the issues we raised with lea rned counsel was whe ther, in fact or at law, the appellant had been the subject of a redundancy exercise at the instance of the r espondent. J 22 P. 1453 4.1.21 After a few unconv1nc1ng responses to our questions, Mr. Kasote eventually suggested that the appellant was never declared redundant by the respondent and that we should go beyond the assessment by the Deputy Director and examine the trial judge's judgment. Learned counsel was, however, unable to properly explain or to appropriately persuade us as to why we should adopt the unusual approach which we were being urged to adopt. 4.1.22 We are grateful to counsel on either side for their very • help[J. J.l exe rtions. • • • 5.0 CONSIDERATION OF THE APPEAL AND DECISION 5 . 1 Following our examination of the record of appeal, t particularly the j udgmen ts of the trial judge and the Deputy ' Director at assessment, we were left in no doubt that the relief which the trial court had pronounced in the appellant's favour had been predicated upon the premise that the appellant had been the subject of a redundancy exercise at the instance of the respondent. J23 P. 1454 5.2 We also noted from the record that when the matter was de escalated to the Deputy ,Director by the trial judge, it was so done for the limited purpose of assessing or determining the quantum of the redundancy package which the trial court determined to have been due to the appellant. 5.3 Not surprisingly, during the assessment proceedings, much ~ vigilance was summoned by the appellant's counsel for the purpose of ensuring that the assessing Deputy Director's hand was restricted or limited to determining, not the issue of e ntitlement to the relief which had been sought, but the • quantum of tha t relief. 5.4 We have felt inc lined to make the observations in 5.1 to 5.3 t above because, although this appeal is arising fi;-om I assessment by the Deputy Director and does not extend to the trial judge's determinations in her judgment, the very nature of the role we have been invited to perform in this appeal makes it inevitable for us to set our eyes upon and interrogate the subject of redundancy as the genesis of the J24 P. 1455 assessment whose outcome generated the grievances which have been escalated to this court. 5.5 In taking the position which we have alluded to in 5.4, we have borne in mind the fact that what we have determined as the troubling legal and factual issues around the overarching subject of redundancy cannot properly be divorced from the assessment which, in law and in fact, had ensued or flowed from that subject matter. 5 .6 Having regard to our observations in 5.1 to 5.5 above, we have dete rmined ·that the outcome of the brief inquiry which we are • • • a bout to unde rtake a round the overarching subject of redundancy will, ultimately, effectively resolve the fate of this appeal. t 5. 7 We propose to start by confirming that our examination of the trial court's judgment revealed that the judge's conclusion a nd determination as to the appellant's entitlement to a redundancy package was founded solely upon some apparent a dmission in the respondent's defence and counter-claim. Ho\vever, that a pparent admission was resoundingly J25 ,. P. 1456 discounted by the evidence which was led on behalf of the respondent and which was apparently ' accepted by the trial judge. 5.8 According to the trial judge's judgment, the evidence relating to redundancy which was placed before her by the appellant arose in the shape of what we earlier set out at 2.5 to 2.10 above . The core pieces of that evidence were expressed as follows: 5 .8 . 1 that the appellant had been employed as the • . respondent's managing director but was declared • • redundant as a result of the respondent's privatization by way of asset sale; 5.8.~ that the Board of Directors of, the respondent had terminated the appellant's contract of employment on 4 th March, 2006 without notice and without preferring any disciplinary charges against him. 5.8.3 that the redundancies relating to the respondent were effected in 2003 and 2004 but that he, the J26 P. 1457 appellant, could not recall the actual date when he was declared redundant. 5.8.4 that the appellant considered himself as having been declared redundant even though he had been serving on the basis of fixed short-term contracts. 5.9 On behalf of the respondent, the evide_nce which wa,s placed before the trial court was to the following effect: 5.9.1 that the process of privatizing the respondent started in year 2000. • • • • • 5.9.2 that, as part of that privatisation process, the respondent engaged the trade union re presenta tives concerned and informed them , about the intended privatizatibn. 5. 9 .3 that the appellant was engaged on fixed short term contracts which had been renewed six times. 5.9.4 that following the co1nmission of a disciplinary offence involving abuse of authority of office and J27 P. 1458 misuse of company property (involving K350 million), the appellant was summarily dismissed. · 5.9.5 that the appellant was never declared redundant as this eventuality was specifically considered and ruled out at the time of engaging him on short-term contracts . 5 .9.6 tha t when the Zambia Privatization ("ZPA") which was superintending over the privatization of the res ponde nt learnt that the appellant had included • • • his n a m e on the list of employees who vvere ear • • marked for redundancy, the appellant was promptly directed to remove his name as well as t h e n a m es of the other employees oftpe respondent 1 t I who, like the a ppella nt, were serving on contract. 5.9.7 tha t, as a s hort-t erm contract employee, the appellant was paid his gratuity and other e ntitlements at the end of each of his short-term employment contracts. J28 P. 1459 5. 10 Having regard to the fact that this appeal has to turn on the issue of the appellant's redundancy, which is an issue of mixed law and fact, we propose to set out how the trial judge approached and resolved the same in her judgment. The learned judge said, a t pages J26 to J27: "I now turn to the claim for terminal benefits. The plaintiff pleaded, in paragraph 3 of the statement of claim as follows: "The defendant is listed for privatization and the plaintiff herein was one of those declared redundant as a n!sult of the aforesaid privatization by sale of • Assets." The defe ndant has, in response to this averment, pleaded as follows: "Paragraphs of the Sitatement of claim 1, 2, and 3 , are admitted ." The foregoing is the exact wording of the averment. In that connection, the statement made by J. R. Lewis in Civil and Criminal Procedure at page 28 is apt. It is stated there as follows: "Pleadings are documents which are exchanged by the parties to the action and they set out the claims J 29 P. 1460 made and the defences raised by the parties. The whole point in exchanging such detailed statements is that in this way the parties will be able to determine, before the trial is reached, the precise issues that are in dispute. It may well be, for instance, that some parts of the claim mad~ by the plaintiff are in fact admitted by the defendant, if so he will admit them in his defence and these particular points will then not be in issue, and evidence given about them at the trial will not be conteste d. " In Kridge and Another vs Christian Council of • • • Zambia5 , it was held inter alia that: • «The respondent having pleaded that the first appellant was in possession it could not argue that he had surrendered his possession." Jn that case, the Learned Counsel for the respondent ' sought to advance an argument at variance with the pleading Gardner J. S. stated the following at page 156: "... Counsel for the respondent has argued before this court that the first appellant surrendered his tenancy on 31 st December, 1971, by giving notice that he intended to do so and by leaving the partnership business on that date. Whether or not this could be an effective surrender at law is J::30 P. 1461 immaterial because the respondent specifically pleaded in paragraph 7 of the statement of claim that at the time of the issue of the writ the first appellant has held over and remains in possession of the premises. The respondent having pleaded that the first appellant is in possession of the premises cannot now argue that he surrendered his "possession". ' On the foregoing, it is clear that a party cannot set up a case at variance with his pleadings. He is bound by his pleadings. To set up a story altogether differing with the position stated in the pleadings would in fact impair the credibility of a witness whb attempts to depart from the • matter as pleaded. The defendant having admitted that the plaintiff was declared redundant, no issue could be raised on the point. I am satisfied therefore that the plaintiff was declared redundant as pleaded and • admitted.' He is as a result entitled to a redundancy I I package in line with the applicable conditions of service. It is an accrued entitlernent, not negated by the subsequent dismissal. " 5. 11 What is self-evident from the approach which the learned judge took as set out above was that she did not relate the J 3 1 P. 1462 law which she had so admirably set out to the specific factual matrix with which the court had been confronted. 5 . 12 For the remova l of any doubt, in spite of the manner in which the parties had settled their respective pleadings in this matter, the compelling evidence which was laid before the court, which was neither objected to nor contested, was clearly at varia nce with the respondent's bare 'admission' in its defence. 5.13 It is also worthy pointing out, in relation to the law which the • • trial judge had relied upon, that: • • 5 . 13. 1 In regard to the passage from J . R. Lewis' text on Civil and Criminal Procedure, namely that " ... evidence g,iven about [adrµitted claims, points or issues} can neither be in issue nor can it be contested at "the trial", the 'admitted' claim, in the context of the pleadings in question, was that the appellant was one of the employees who had been d eclared redundant by the respondent. J32 r ' P. 1463 5.13.2 Contrary to the purported admission in the respondent's defence, the· evidence which was laid • i before the trial judge was that the appellant was never d eclared redundant. The trial judge did not, however, resolve, let alone, address the meaning and effect of this inconsistency in the light of this ·court's decisions to the effect that ''it is r mandatory that any judgment must be anchored on evidence adduced before the v • • court" (NFC Africa Mining PLC v. •Lofoyi Enterprises Limited6 ). 5.13.3 With regard to our decision in Kridge and Another v. Christian Council of Zambia 5 , the issue which was canvassed there in relation to pleadings was the fact that counsel could not advance arguments which were at variance with what the litigant involved had pleaded. The position with respect to the matter at hand was different in the sense that the uncontested J33 P. 1464 evidence which was laid before the trial judge was what was inconsistent ·or at variance with the respondent's purported admission. 5.14 We wish, once again, to acknowledge that we are here dealing with an appeal from the assessment which was undertaken by the learned Deputy Director and not the decision of the High Court judge who had tried the matter. 5.15 A matter, about which there can be no serious debate in our civil practice, is the fact that an appeal is almost always • • limited to a review of the decision of the lower court: An appeal • • to this court, says Rule 72 of the Rules of this court, is of the nature of a re-hearing on the record. An appeal to this court is not, therefore, a full re-hearing of the case at first instance I f I I but a mere re-hearing on the record. 5.16 Having sounded our cautionary note above, we cannot, however, shrink from the responsibility of pointing out that although an appeal to this court is of the nature of a re hearing on the record and would not necessarily constitute a full re-hearing, such a hearing is, nonetheless, J34 l • I I ;. i i : I P. 1465 " ... a rehearing by the court with regard to all the questions involved in the action ... " as Lord Wright described it in the House of Lords decision in Davies v. Powell Duffryn Collieries 7 . 5.17 Thus, in the English Court of Appeal decision in Reaney v. Co-operative Wholesale Society8 , it was observed that even where the trial judge has held for the defendant on the...iss_~e of liability, if a n appellate court reverses this holding, it may then a ssess the damages for the first time. 5. 18 In the -case of Flint v.- Lovell9 the Court of Appeal, ~cting by Greer L. J ., m a de what Harvey McGregor, the learned author of the legend a ry McGregor on Damages has described as "the Classic State me nt" with respect to the grounds upon which I I an interference with an a ssessment of damages can be justified, n a mely, where "the judge acted upon some wrong principle of law ... " 5. 19 Clearly, therefore, one of the circumstances 1n which an interference with an award of damages can be justified is J35 P. 1466 where, to quote McGregor again, "the judge (had} misdirected himself as to the law ... " 5.20 The English Court of Appeal decisions in Benham v. Gambling10 and Murray v. Shuter 11 further attest to the fact that an assessment of damages which is founded on a wrong or erroneous legal premise ca n be interfered with . 5.21 Although we are here dealing with an appeal from an assess m ent of dama ges and not from the High Court judgm ent which h a d formed the genesis of the assessment, we, as a n a ppella t e court exercising ultimate appellate • • • • juris d iction over this m a tter, are not necessarily confined to 1nqu1nng into the mechanics of the assessment as unde rta k e n by the a s sessing court upon the direction of the I l I High Court judge . C. 5.22 We are , indeed, entitled to inte rroga te the legal basis of the assessment exercise which exercise - we dare say - extended to the judgment which had formed the basis of the a s sessment. In a ny event, the re-hearing which we are m and a ted to undertake must, n ecessarily, extend to the l l I l ! ! I I } ' ! J36 P. 1467 judgment itself b ecause it was part of the record involved in the re-hearing. This position or this view· is informed by the mandate which we derive from Section 25(1) of the Supreme Court Act, Cap . 25 which enacts that: (_ " ... on the hearing of an appeal in a civil matter, the court - (a) shall have power to confirm, vary, amend, or set aside the judgment appealed from or_ give such judgment a-s the case may require" (emphasis ours). 5 .23 It was not in dispute, in the context of the matter at hand, t h at the assessm e nt which the Deputy Director had • • • • undertaken was in respect of the appellant's (purported) redundancy package . 5 .24 According to the judgment of the trial judge as quoted at 2.22 and 4 . 1.4 ' above, the fact of the appellant having oeen "declared redundant as pleaded and admitted" was an open and shut case which could not have b een "negated by the [his] subsequent dismissal." 5 .25 In our view, and, contrary to the reasoning of the learned trial judge in her judgment, a dismissal of an employee by reason J37 P. 1468 of redundancy is one of the ways in which a contract of employment can be determined or terminated. 5 .26 The indubitable evidence which was la id before the trial judge and which the judge herself confirmed was to the effect that the appellant was never declared redundant. Indeed, in spite of his hollow claims to the contrary, the appellant himself could not even tell the trial court as to when precisely he was d eclared redunda nt. 5 .27 In contrast, there was abundant evidence before the trial judge which suggested that the appellant's employment • • • contract was terminated by way of dismissal on account of disciplinary offences. ? ,28 If, as was 1,1ndoubted ly the case, the appellant was dismissed at the time when h e was serving on his fifth or sixth short term employment contract, how could he have been the subject of another form of employment termination, namely, a redundancy at the same time? 5 .29 As this appeal entails a re-hearing on the record, by which we 111ean, the entire record which, for the avoidance of doubt ' P. 1469 included the trial judge's judgment which had formed the basis of the assessment before the Deputy Director which, in turn, was subsequently escalated to this court, we are, to borrow Lord Wright's words in Davies v. Powell7 , entitled indeed to interrogate "all the questions [which were] involved in the [assessment]'). Indeed, foremost among these questions was the legal premise of the assessment. 5.30 Having regard to the broad mandate which we derive from Section 25( 1) (a) of the Supreme Court Act, Cap. 25, we are • entitled to disturb the assessment before the Deputy Director upon the footing that it had been founded and proceeded with on the basis of a misconceived or erroneous legal premise, namely, a redundancy which, both at law and in fact, never was and about which, the Deputy Director, as a junior court, I I could not do anything. 5.31 In the light of what we have canvassed above, the broad view which we have taken of this matter is that it represents an assault on any notion of justice and equity as we know them . J 39 P. 1470 We are saying this or have reached this conclusion in the light of the fact that the outcome in the court below had the effect of unjustly enriching the appellant and inflicting injustice upon the respondent. 5 .32 Lest there be any doubt, the appellant was a beneficiary of a purported redundancy package 1n the sum of K399,462 ,487.67 in respect of the period 6 th May to 31 st October, 2 003 which covered his first short-term employment contract. The re was uncontroverted evidence before the court • below that the appellant h a d received all his tontractual • e ntitle m e nts (gratuity, leave pay, etc.) following the expiry of his firs t s hort-term contract by effluxion of time. And yet, rather astonis hingly and truly baffling, the appellant was also adjudged to have been entitled to an additional reward in the shape of a redundancy package over the same period which covered the appellant's initial short-term contract, ostensibly on account of the appellant's redundancy! 5.33 The meaning and effect of what we have canvassed in the preceding passages is tha t, as this entire appeal and the ( P. 1471 J40 grounds thereof were predicated on a fundamentally erroneous legal premise, namely, a redundancy, which never was, the whole appeal must fail. Consequently, the appellant must not only pay what he has been owing the respondent as the Deputy Director determined below, but must refund all the money which he received on account of the legally fictitious redundancy. The costs are to abide the outcome we have just announced and are to be taxed if not agreed. • -· . c- :~~-~ ... C:-..:..> ••••••••••••••••••o••••••••••••••• I. C. MAMBILIMA CHIEF JUSTICE • • C, ................................... M. MALILA SUPREME COURT JUDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. M. MUSONDA, SC SUPREME COURT JUDGE