Scaw Limited v Lewis Chola and Anor (Appeal No 182/2023) [2025] ZMCA 173 (21 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No 182/2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SCAW LIMITED AND LEWISCHOLA LASTON PHIRI APPELLANT 1 ST RESPONDENT 2ND RESPONDENT CORAM: Ch'ashi, Ngulube and Banda-Bobo, JJA On 12th August, 2025 and 21 st August, 2025. For the Appellant: Mr. H. Sako of Messrs Lumangwe Chambers For the Respondent: Ms. M. Chibwe of Messrs Iven Levi Legal Practitioners JUDGMENT Banda-Bobo, JA, delivered the Judgment of the Court. Cases referred to: 1. Malloch v Aberdeen Corp [1971] All E. R. 1278 2. Contract Haulage Limited v Mumbuwa Kamayoyo (1995-1997) ZR 218 3. Swarp Spinning Mills Plc v Sebastian Chileshe and Others (1989) ZR 217 4. Tom Chilambuka v Mercy Touch Mission International SCZ No. /8 / 276 / 2012 5. Chan sa Ngo'nga v Alfred Knight (Z) Limited, Selected Judgment No. 26 of 2019 (SCZ Appeal No. 203 of 2016 6. Mwale and 61 Others v ZCCM Investment Holdings Limited SCZ Appeal No. 57/ 2012 7. African Banking Corporation Zambia Limited v Lazarous Muntente CAZ Appeal No. 51 of 2021 8. Oliver Chinyama v Spectra Oil Corporation Limited SCZ Appeal No. 18 / 2018 9. Du ncan Sichula & Muzi Tra nsport Freigh t & Fowarding Limited v. Catherine Mulenga Chewe (Married Woman) SCZ Judgment No. 8 of. 2000 Legislation and other works referred to: 1. The Employment Code Act No. 3 of 20 19 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Hon. Mr. Justice D. C. Mumba, delivered on 20th April, 2023, in the High Court, Industrial Relations Division. 2.0 BACKGROUND 2 .1 The Respondents, who were the Complainants in the Court below, by Notice of Complaint supported by Affidavits, on 9 th May, 2022 commenced an action against the Appellant seeking the fallowing: (1) A declaration that the dismissals of the Respondents by the Appellant Company was unfair, unlawful and wrongful in the sense that they were not given opportunities to be heard by rightly constituted tribunals. (2) Payment of 24 months salary as Damages for the unfair, unlawful and wrongful dismissals. (3) Damages for distress and mental anguish suffered by the Complainants as a result of their unfair and wrongful dismissals. J2 (4) Damages for distress and mental anguish suffered by the Complainants as a result of their unfair and wrongful dismissals from employment by the Appellant. (5) Payment of Gratuity for the full contracts as if the Respondents had finished the full contract periods as agreed between the parties. (6) Interest and costs (7) Any other relief the court deems fit. 2.2 The 1st and 2 nd Respondents filed affidavits on 9th and 12th May, 2022 respectively. The essence of their averments was that they were terminated from employment by the Respondent on 5th February 2022, without being formally charged, without due process of the law, and in disregard of the company's disciplinary procedures, among other grounds . 2.3 The Appellant reacted to the complaint by filing an answer on 29th June, 2022 . It was averred that the 1st respondent was still on probation at the time of the termination, and the contract had a clause which provided for the termination of employment by either party giving 24 hours' notice. J3 2.4 As regards the 2nd Respondent, it was averred that his contract was terminated in accordance with a termination clause in the contract of employment which provided for termination of employment by either party giving one month's notice or payment of one month's salary in lieu of notice. 2.5 The Appellant made a counterclaim for the refund of gratuity in the sum of Kl 7,250.00 which the Appellant paid to the 2 nd Complainant. 3.0 DECISION OF THE LOWER COURT 3.1 The lower Court found as a fact that the Appellant, by not charging the Respondents with any offence relating to their alleged bias in dealing with some disciplinary cases, denied the complainants an opportunity to exculpate themselves as to the veracity of the allegations which was contrary to the rules of natural justice and the provisions of the Employment Code Act No. 3 of 2019. Hence the Respondents dismissals were wrongful and were entitled to the payment of damages. 3.2 The Court further found that the Appellant did not charge the Respondents with an offence in order to satisfy the requirement under Section 52(5) of the Employment Code Act. He held that J4 the Appellant failed to show that the dismissals of the Respondents were based on substantiated grounds and for a valid reason hence the dismissals were unfair thereby entitling the Respondents to the payment of damages . 3.3 Further, the learned Judge upheld the claims by the Respondents for payment of damages for wrongful dismissal. He also awarded the 1st Respondent his claim for payment of gratuity at 25% of his basic salaries earned during his contract period, less any amounts he could have already been paid. 3.4 The 1st Respondent was awarded damages of his total monthly salary with allowances for 12 months translating to K720,000 .00. The 2 nd Respondent was also awarded the same, translating to K360,000.00. 3.5 As regards the Appellant's counterclaims, the Court found that the counterclaims against the 1st and 2 nd Respondents came late in the day and the Respondents cannot be made to refund the said money to the Appellant. 4 .0 THIS APPEAL 4.1 Unhappy with the Judgment, the Appellant launched this appeal before this Court, by way of Notice of Appeal and JS Memorandum of Appeal filed on 4 t h May, 2023, while the record of appeal was filed on 15th June, 2023. Two grounds of appeal were fronted and couched thus - 4.2 Ground One The learned Judge misapprehended the law when he awarded damages of (12) months with interest which are beyond the notice period provided by the respective parties' contracts by taking into account the claim for distress and mental anguish Ground Two The learned Judge misapprehended the law when he awarded damages of (12) twelve months with interest by stating that he deviated from the normal award of damages being the notice period pay due to the scarcity of employment in the country and disregarding the fact that the 2 nd complainant was already in gainful employment. 5.0 ARGUMENTS IN SUPPORT 5.1 The Appellant filed heads of argument and list of authorities on 15th June, 2023. 5.2 In arguing ground one, the appellant's contention was that the Judge below misapprehended the law when he awarded J6 damages of twelve (12) months with interest which are beyond the notice period as provided by the Appellant's and Respondents' contract of employment. It was submitted that the pnmary source of a contract of employment is the contract itself, that the remedy for unfair dismissal lies within the Respondents' contract of employment with the Appellant. 5.3 It was argued that the 1st Respondent's contract provided for a months' pay in lieu of notice on the one hand and 24 hours' notice for the 2nd Respondent as he was on probation. That termination can give rise only to a remedy in damages of a month's payment in lieu of notice for the 1st Respondent and, 24 hours' pay in lieu of notice for the 2 nd Appellant. It was further submitted that the Respondents were both paid one month's salary in lieu of notice which adequately atoned for the 1st and 2nd Respondents in damages, despite the contract for the 2 nd Respondent providing for 24 hours' notice. 5.4 To buttress the above argument, we were referred to the case of Malloch v Aberdeen Corp 1 where Lord Wilberforce stated: "Any breach of any of the terms of the contract between the appellant and the respondent as to the J7 mode of termination can give rise only to a remedy in damages. In this case, the contract provided that the respondent should have been given one months' notice. He was not given such notice and was therefore improperly terminated. He is entitled to the usual damages which arise from such a situation, that is to say, he is entitled to thirty days' salary in lieu of notice." 5.5 Further referen ce was made to th e cases of Contract Haulage Limited v Mumbuwa Kamayoyo 2 , Swarp Spinning Mills Pie v Sebastian Chileshe and Others3 and Tom Chilambuka v Mercy Touch Mission International4 wh ose holdings we shall n ot recite but will refer to some of them in due course, on th e principle th at damages in breach of employment contract are m easured by the contractual len gth of n otice or reason able n otice period where th e contract is silent. 5 .6 We were also referred to the case of Chansa Ngo'nga v Alfred Knight (Z) Limited5, wh ere the Supreme Court guided as follows: "We have, however, throughout maintained the position that the starting point is that the normal measure of damages in wrongful/unfair termination J8 cases should be payment of money equivalent to, or in lieu of the notice, that would otherwise lawfully terminate the employment contract. In other words, the quantum of compensation payable at common law is determinable with reference to the period necessary to terminate a contract by notice, or where no notice period for termination is stipulated in the contract, a payment equivalent to what would be payable in lieu of the notional reasonable period. This should be the case unless there are other compelling circumstances to warrant an award in excess of that determinable with reference to the notice period." 5 . 7 It was further argued that the lower Court seems to have taken in to account the Respondent's claim of distress and mental anguish when he arrived at awarding the Respondents ' damages in excess of the normal measure of damages. It was submitted that no evidence was led in demonstrating any such distress and mental anguish to warrant the consideration by the Judge in his award of damages. 5. 8 Reference was made to the case of Mwale and 61 Others v ZCCM Investment Holdings Limited6 and that of African Banking Corporation Zambia Limited v Lazarous Muntente7 J9 to buttress the argument that where a party is seeking enhanced damages, such a party must adduce evidence and explain any special circumstances to take his case out of the realm of the ordinary award of notice pay. 5.9 Submitting on ground two, it was argued that the lower Court's consideration of scarcity of employment in the country in awarding damages beyond the normal measure was done by disregarding the fact that the 2 nd Appellant was already in gainful employment. It was submitted that the 2 nd Respondent testified that he was in gainful employment as Human Resource Business Partner employed by ZAMTEL as appearing at page 162 and 1 72 of the Record of Appeal. 5.10 It was further argued that the 2 nd Respondent was remunerated one month's pay, beyond the agreed 24 hours period and was unjustly enriched. 5.11 As regards the 1st Respondent, it was submitted that he did not show the Court anything to demonstrate that he had been looking for employment and could not find any to substantiate the grant of damages beyond the normal measure. JlO 5.12 It was submitted regarding interest, that the Respondents were paid in lieu of their respective notices, and even paid over and above that notice period for the 2 nd Respondent, and therefore no payment must be ordered to be made to the Respondents and therefore no interest may be applied. 6.0 ARGUMENTS IN OPPOSITION 6.1 The 1st and 2 nd Respondents filed their written submissions in opposition on 7 th July 2023 and argued grounds one and two together. 6.2 It was submitted that the lower Court was on firm ground when it awarded damages of (12) twelve months beyond the normal measure. It was argued that the circumstances of the case that made the Judge to depart from the normal measure are clearly on record. That there was evidence on record on how the 1st Respondent was handed over the termination letter around 16:00 hours after a successful work day without being given an opportunity to exculpate himself on allegations levelled against him. 6 .3 Further that at page 136 of the record of appeal, the 1st Respondent explained that h e was shocked when he received Jll the letter as he did not expect such a thing. Furthermore, that after reading the letter, he was not in agreement with the reasons given for his termination. 6. 4 As regards the 2 nd Respondent, it was also submitted that at page 163 of the Record of Appeal, the 2 nd Respondent stated that he was shocked when he looked at the contents of the letter as he did not even get the view of the workforce, that they were just from concluding negotiations with the Workers Union of Zambia after having meetings only for two days , which had never happened before and was a milestone achievement. 6. 5 It was argued that there was clear evidence showing the traumatic manner in which the termination was done which clearly confirms why the Trial Judge had to depart from the normal measure of damages. It was also submitted that the evidence of shock and trauma was not challenged by the Appellant in cross examination. 6. 6 We were ref erred to the case of Oliver Chinyama v Spectra Oi18 where the appellate court refused to interfere with the trial Court's award of 12 months' salary stating that it was not inordinately high. J12 6.7 Further, that the other reason, the Court departed from the normal measure of damages is, with respect to the 1st Respondent at page 140, where he stated that he attended interviews but part of the reason why he is not getting employed is because no one would want to employ someone for the reasons he left Scaw Limited. That he further stated that he was not employed, he was just at home being looked after by the wife. 6.8 It was also submitted that the trial Court's statement in its judgment at page 52 of the Record of Appeal that "I have already taken into account this claim", referring to the claim of distress and mental anguish, is a clear confirmation that the Court had observed how distressed and mentally affected the two Respondents were through the manner in which they narrated their stories. 6. 9 As regards the question whether an appellate court can interfere with the findings of a trial Court in employment matters, it was submitted that an appellate court could only interfere with the award if it is wrong in principle. It was argued that the Appellant has not pointed to any wrong J13 principle to warrant interference on the award by this Court. \Ve were referred to the case of Duncan Sichula and Muzi Freight Transport and Fowarding v Catherine Mulenga Chewe9 where it was held that: "An appellate court should not interfere with the award unless it was clearly wrong in some way, such as because a wrong principle has been used or the facts were misapprehended or because it is so inordinately high or so low that it is plainly a wrong estimate of the damages to which a claimant was entitled." 6.10 It was further submitted, as regards the assertion by the Appellant that the termination of the 2 nd Respondents contract of employment was pursuant to clause 2 of the contract which provided for termination with r espect to his failure to impress during probation; that it was an afterthought as the reasons for the 2 nd Respondent stated in the letter of termination had nothing to do with his probation. 7.0 HEARING 7 .1 In submitting for the Appellant, Mr. Soko relied on the Heads of Argument filed on 15th June 2024, as well as the Heads of J14 Argument in reply. He, however, intimated that the Appellant was abandoning the Heads of Argument in Reply, as they had been filed outside the mandatory seven-day period. 7 .2 In opposition, Ms. M. Chibwe relied entirely on the Respondent's Heads of Argument filed before this Court on 7 th July 2023. She augmented her submissions by contending that the lower Court was justified in its decision to award damages to the Respondent based on its findings 8.0 DECISION OF THIS COURT 8 .1 We have perused the record of appeal, and considered the Judgment of the Court below, and the arguments filed by learned Counsel for the Appellant and Respondents. 8.2 The appeal is premised on two grounds, which we will consider collectively in light of the shared legal questions and overlapping factual considerations. 8.3 It is contended that the learned Judge misapprehended the law by awarding twelve (12) months' salary to each Respondent, which exceeded the contractual notice period of 24 hours for the 2nd Respondent who was on probation, and one month for the 1st Respondent. JlS 8.4 The Appellant further argued that reliance on the scarcity of employment was improper, especially since the 2nd Respondent was in gainful employment, and that there was no demonstrable basis for enhancing damages beyond the contractual limits. 8 . 5 The central issue for determination is whether the learned trial Judge erred in awarding damages exceeding the contractual notice periods, particularly in light of: the Respondents' claims of mental distress; the manner of their termination; and the scarcity of alternative employment. 8.6 It is well established at common law and in Zambian jurisprudence that the usual measure of damages for wrongful dismissal is salary in lieu of notice, unless special or compelling circumstances exist to warrant a higher award. 8 . 7 This principle is reflected in the case of Chansa Ngo'nga v Alfred Knight5 , where the Supreme Court held: " .. . the normal measure of damages in wrongful/unfair termination cases should be payment of money equivalent to, or in lieu of the notice .. . " J16 8.8 Similarly, in Malloch v Aberdeen Corp 1 , Lord Wilberforce emphasised that: " ... breach of a term as to mode of termination gives rise to damages equivalent to the notice period ... " 8.9 However, as held in Oliver Chinyama v Spectra Oil8 , there can be a departure, though appellate interference is only merited where the award is "clearly wrong in principle, or inordinately high or low." 8 . 10 After analyzing as above, we ask ourselves a question, did the Trial Court Apply a Wrong Principle? We are of the view that contrary to the Appellant's assertion, the learned trial Judge provided cogent justification for departing from the ordinary measure. The facts and evidence disclosed that the Respondents were dismissed summarily, without being afforded an opportunity to be heard, contrary to the principles of natural justice and Section 52(5) of the Employment Code Act No. 3 of 2019. This amounted to gross procedural unfairness. 8.11 Furthermore, it is evident on record that the 1st Respondent testified that he was shocked and distressed by the J17 unexpected dismissal. Similarly, the 2 nd Respondent was dismissed after successful union negotiations, adding a layer of indignity and surprise to the dismissal. This in our view amounts to emotional and reputational distress. 8.12 Regarding the impact of future employment, the 1st Respondent indicated that he remained unemployed and suffered reputational harm. Although the 2nd Respondent obtained subsequent employment, this does not negate the wrongful manner of termination. 8.13 These factual findings were not seriously challenged during cross-examination. The Court was , therefore, entitled to weigh the Respondents 1 unchallenged testimony on emotional and economic consequences of dismissal. 8.14 In Mwale and 61 Others v ZCCM Investment Holdings Limited6 and African Banking Corporation Zambia Ltd v Lazarous Muntente7 , the Court recognised that an award beyond the notice period is permissible where compelling evidence is led. While the Appellant argues no such evidence was adduced, the record shows otherwise. The distress was J18 articulated, not in abstract, but with specific facts and circumstances corroborating the claim. 8 .15 The Appellant further argues that the 2 nd Respondent's gainful employment precluded an award of 12 months' salary. While this is a relevant consideration, it is not determinative. The wrongfulness of the termination, and the manner in which it occurred, remains compensable . The Court was also careful to note that the distress and procedural impropriety warranted a deviation from standard measure of damages. 8.16 As regards circumstances warranting an Appellate Court to temper with the findings of fact of a trial court, the Supreme Court in Duncan Sichula and Muzi Freight Transport v Catherine Mulenga Chewe9 reiterated that appellate courts should not disturb findings of the lower Court unless they are plainly wrong. In this case, no such error is demonstrated. 8.17 CONCLUSION 8.18 It is our conclusion that the trial Court correctly appreciated the legal framework applicable to wrongful termination. It gave cogent reasons for awarding damages beyond the notice periods, having regard to the manner of dismissal, distress J19 suffered, reputational harm, and the Respondents' future prospects. These considerations, while exceptional, were grounded in evidence and not arbitrary. The Appellant has failed to show that the trial Court applied the wrong legal principle or made a palpably incorrect estimate of damages. There is no basis for appellate Court to interfer with the discretionary award. 8.19 Accordingly, we find no merit in th e appeal. The decision of th e Court below is hereby u pheld, and the appeal is dismissed. This being an Industrial ivision matter, we make no order as to costs. J. CHASHI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE J20