Attorney General v Francis Brown Chafwa Mutale (APPEAL NO. 137 OF 2005) [2006] ZMSC 52 (5 July 2006)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 137 OF 2005 AT LUSAKA (Civil Jurisdiction) BETWEEN: THE ATTORNEY GENERAL APPELLANT And FRANCIS BROWN CHAFWA MUTALE REPOSNDENT Coram: Chirwa, Mushabati, JJS and Kabalata Ag. JS. On 4th April, 2006 and 5th July, 2006 For the Appellant: Col. Moses Phiri - State Advocate. For the Respondent: In Person. JUDGMENT Mushabati, JS., Delivered the judgment of the Court. Cases referred to: I. 2. 3. 4. Chintomfwa vs. Ndola Lime Co. Limited (1999) Z. R. 172 Swarp Spinning Mills PLC vs. Chibote and Others (2002) Z. R. 23 Ndili vs. The Attorney-General Appeal No.29 of 2001 J. Z. Car Hire Limited vs. Chala and Another (2002) Z. R. I I 2 This is an appeal against the Deputy Registrar's ruling on assessment of damages made on 8th September, 2003. The assessment of damages was based on the following claims. (a) Loss of monthly salary . T 2 (b) Loss of endowment policy (c) Loss of an opportunity to benefit from the home empowerment under the Presidential housing initiative directive, (d) Loss of annual increment and pay of higher rank (e) ( f) Loss of fourty leave days Loss of gratuity and (g) Costs and interest. Consent judgment for wrongful dismissal was entered into by the parties on 4th November, 1985, the appellant having been dismissed from the Zambia Army by letter written on 15th December, 1980. In these proceedings the appellant and the respondent shall be referred to as the defendant and the plaintiff respectively as these were their designations in the court below. The plaintiff was successful on claims under (a), (b) and (f). The defendant however appealed against the awards on these claims. The grounds of appeal were as follows:- 1 . The Learned Deputy Registrar erred in law and fact when he awarded damages in respect of two insurance policies, which policies did form part of the Conditions of Service 2. The Learned Deputy Registrar erred in law and in fact when after awarding damages at the current scale (2003) of Lieutenant proceeded further to award speculative interest at short term deposit rate from the date of writ and thereafter at current lending rate thereby pushing the figures to abnormal proportions. J3 3. The Learned Deputy Registrar erred in law and in fact when he allowed an order of assessment of damages to be entered on 2nd October, 2003 which had errors on the basic salary and based on wrong formulae. The plaintiff cross appealed against the judgment on the dismissed claims and rate of interest awarded to him. On the allowed claims the court below awarded the following damages, beginning with the claim for loss of monthly salary. The plaintiff was awarded 48 months salary at the current salary received by a serving officer holding the rank held by the plaintiff at the time of his dismissaJ. In addition to the above he was awarded 12 months salary received by a lieutenant at the time of the judgment. In total the plaintiff was awarded a total of 60 months salary at the current salary scale received by a Lieutenant at the time of the Deputy Registrar's judgment. He was further awarded a sum of K2,000,000 as general damages. The court awarded the plaintiff damages amounting to Kl 00,000 for the loss of his insurance policies. On the leave days the plaintiff was awarded damages equivalent to leave days' pay to the date of the judgment from 18th June, 1974. The plaintiff's grounds of appeal were as follows:- a. That the Learned Deputy Registrar erred in Law and fact when he allowed a simple interest caJculation Accidental Slip on the face of the Order of Damages. b. That the Learned Deputy Registrar erred in Law and fact when he awarded a disproportionate and dismal Kl00,000.00 for the Respondent's Zambia State J4 Insurance Annuity and Endowment policies instead of their purchasing power parity value. c. That the Leanred Registrar erred in Law and fact when he denied the Respondent an award for inalienable Fundamental Human rights and Entitlements as per Conditions of Service, namely, accommodation, marriage/upkeep, batman, water and sewerage, electricity, education, health etc. as promulgated and enshrined in Zambia Anny classified documents. d. That the Learned Deputy Registrar erred in Law and fact when he awarded Respondent 40 days per annum accrued instead of 42 days as stipulated in the Conditions of Service. e. That the Learned Deputy Registrar erred in Law and fact when he awarded Respondent the short tenn deposit rate of 20 percent instead of 34.5427 percent the Bank of Zambia Treasurey Bill rate as at September, 2003 percent on the Order of Assessment of Damages. f. That the Learned Deputy Registrar erred in Law and fact when he awarded the Respondent arrears from 1980 - 1984 instead of the period from date of writ in 1980 to date of judgment in 1987. g. That the Learned Deputy erred in Law and fact when he awarded the Respondent damages equal to one (I) year instead of the two (2) years. . T 5 h. That the Learned Deputy Registrar erred in Law and fact when he failed to award the Respondent Pension as per contract of service. 1. That the Learned Deputy Registrar erred in Law and fact when he failed to award the Respondent compensation for cost of education at the University of Zambia. In dealing with this appeal we intend to consider the appeal grounds in the mafo appeal simultaneously with those which are interrelated to the grounds of appeal in the plaintiffs cross appeal. Both the plaintiff and the respondent submitted written heads of argument which they augumented with oral submissions. The gist of the defendant's submission on the first head was that the damages awarded to the plaintiff were purely speculative. The award of 48 months salary at the current serving lieutenant's salary was wrong 111 principle and if anything he was only entitled to 24 months salary as damages. This argument is in relation to the defendant's second and third grounds of appeal. The plaintiffs grounds of appeal on this head are contained in grounds (f) and (g). Much of his submissions on this were outside the scope of this judgment. We shall only consider his case from the context of his grounds of appeal. The question is whether the plaintiff was entitled to damages worked at the current salary scale received by an officer serving as a lieutenant, the rank the plaintiff held at the time his services were terminated. Liability was not in dispute but what was in dispute was the rate at which he was to be paid and the length of time that was to be taken into account. J6 It is now an established principle that where one loses a chattel the value of that chattel shall be its value at the time of the loss and not at the time of judgment. In matter of damages for unlawful dismissal the period shall not exceed two years. This court has clearly laid down guidelines on how an issue like this one must be approached. This was done in the cases of Chintomfwa vs. Ndola Lime Company Limited(]) and Swarp Spinning Mills PLC vs. Sebastian Chileshe and Others (2). In both cases it was held that the plaintiffs were entitled to two years salary as damages. The two year period is however, not mandatory unless it can proved that the plaintiff shall have no future prospects of finding another job. In the present case the Learned Deputy Registrar found as a fact that at the time of his judgment the plaintiff had been in employment. In our view we feel the plaintiff was only entit1ed to 12 months salary at the rate of the salary last received. We have awarded him 12 months salary as at the date of his dismissal and not at the current salary for that post, as we did in Ndili vs. Attorney-General (3) because we intend to award him interest from the date of the writ at the current short term bank deposit rates to the date of judgment and thereafter at the current bank lending rate until the debt shall be paid. In order to take care of the inflation that has since taken place, this award shall attract interest at the current short term bank deposit rate from the date of the writ to the date of judgment thereafter at the current bank lending rate to the date of payment. In this regard the plaintiffs grounds (t) and (g) of appea] fail because there was no basis for him to be paid up to the date of the judgment in 1987 from 1980 as he claimed. The award of 48 months salary it set aside. We find no basis for the award of the 12 months sa1ary by the lower court. We have no doubt this has been taken care of in the award above. J7 This award is therefore set aside. In like manner we find no basis for the award of K2 million. This award is also set aside because it was not supported by any cogent evidence. We now come to the second award which was the subject of the first ground of appeal by the defendant and ground (b) by the plaintiff. The Learned Deputy Registrar acknowledged in his ruling as follows:- The only difficult I find here is that Mr. M utale has not exhibited any documentary evidence to support his claim that insurance was a Condition of Service in the Zambia Army at the time he joined. The Deputy Registrar having made this finding of fact, we are left to speculate from where he drew the inference that the defendant was obliged to compensate him for this loss. The taking out of insurance policies is a matter of individuals between themselves and the insurance companies. It is different situation if such a policy forms part of one's conditions of service. This was not the case here. The plaintiff having failed to prove this claim as observed by the court below the court ought to have dismissed it, as we clearly stated in the case of J. Z Car Hire Limited vs. Maloni Chala and Another (3). We said in that case that where a party makes a claim for any damages, then he must prove such damage. The plaintifrs first ground of appeal is allowed in toto. The award of Kl 00,000 is set aside. Having dealt with all the defendant's grounds of appeal in the main appeal it remains to us now to consider the plaintiff's grounds of appeal in the cross appeal which we have not dealt with concurrently with those filed by the defendant. The plaintiffs first ground of appeal is on interest which the Learned Deputy Registrar awarded him. It is our well considered view that we have adequately dealt with this issue above under the damages which the plaintiff was entitled to. We have clearly stated the interest which shall be applied on his award. His fifth ground of appeal, 1 ike his first one, was well covered under the award we made to the plaintiff. This ground has no merit as well. Grounds (c) (h) and (i) were not supported by any cogent evidence and the Learned Deputy Registrar's finding cannot be faulted in any way. We find no merit in them. Under his fourth ground, (ground (d)) the plaintiff appealed against the award of 40 days per annum instead of 42 days. He was awarded damages equivalent to his accrued days to the date of judgment. It appears to us the plaintiff was deemed to have been in employment until the date of judgment. The plaintiffs services were terminated on 15th December, 1980. His damages were based on the fact that he was unlawfu11y terminated from employment. The date of termination remained 15th December, 1980 and not the date of his judgment. It is therefore, logical that his leave days must have been as accrued as at 15th December, 1980. He was not entitled to leave days going up to the date of judgment. His leave days shall therefore be worked out at his proper rate in accordance with the Conditions of Service applicable to him at the time his services were terminated. The payment due to him must be at the rate of his salary last received at the time of the termination of his employment. This award shall also attract interest at the current bank short term deposit rate from the date of the .1 9 writ to the date of this judgment and then at the current bank lending rate until the judgment debt shall be paid. In_ summary the main appeal has been successful and the crpss appeal has failed. We make no order as to costs. ~ D. K. Chirwa SUPREME COURT JUDGE SUPREME COURT JUDGE AG. SUPREME COURT JUDGE ,. ,I ~ ,.,,• . ..... "'~ .