Times Newspaper (Z) Ltd v Nyirenda (SCZ Appeal 146 of 2000) [2002] ZMSC 144 (31 May 2002)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 146/2000 HOLDEN AT LUSAKA (Civil Jurisdiction) TIMES NEWSPAPER (Z) LIMITED APPELLANT AND ESTHER NYIRENDA RESPONDENT Coram: Lewanika, DCJ., Sakala and Chibesakunda JJS., 19th March and 31st May, 2002. For the Appellant: For the Respondent: Mr. I. Zulu of L M. Zulu and Associates. Mr. P. Chisi of Chifumu Banda and Associates. ___________________________ JUDGMENT___________________________ Sakala, JS., delivered the Judgment of the Court. Cases referred to: J. Zambia Airways Fs Mubanga (1990/1992) ZR 149 2. Zambia National Broadcasting Corporation Fs. Penias Tembo, Edward Ckileshe Mulenga and Moses Phiri, (1995/1997) ZR 68 This is an appeal against an assessment of damages by the Deputy Registrar for wrongful dismissal. According to the record of appeal, after the Respondent had given evidence in chief, judgment was entered in her favour by consent; damages to be assessed by the Deputy Registrar. The assessment before the Deputy Registrar was pursuant to that order. At the hearing of the assessment, the Respondent gave evidence in which she explained her conditions of service and set out all her entitlements. The : J2 : Appellant too called a witness on its behalf. The learned Deputy Registrar considered the evidence and held that the trial court’s judgment was for damages for wrongful dismissal. On the question of the proper measure of damages, the Deputy Registrar rejected the Respondent’s approach that damages should comprise her salary for the last fourteen years together with gratuity, housing allowance and repatriation. The learned Deputy Registrar pointed out that since the judgment of the trial court was not an order for reinstatement, the question of awarding salary over a period of fourteen years did not arise. The Deputy Registrar further pointed out that even if the trial court’s order was for reinstatement, on the principle of the case of ZAMBIA AIRWAYS CORPORATION VS MUBANGA(I), he could not award salary during the period that the Respondent had not been in employment. Although the court agreed with the Appellant that the usual measure of damages was salary for the period in which notice was required to be given, it pointed out that the circumstances of this particular case demanded that a much larger measure be awarded. These circumstances were that the Respondent had been transferred to the Appellant’s Holding company in a lower position. When she queried this, the Appellant’s Holding Company transferred her back to the Appellant who refused to take her on. She was then left in suspense. The court noted that there : J3 : was no formal termination of her services or any disciplinary proceedings against her. For that reason the Deputy Registrar felt that the Respondent was entitled to an award such as the one in the ZAMBIA AIRWAYS CORPORATION LTD VS MUBANGA case. Thus, the Respondent was awarded damages comprising one year salary at the present salary in her scale. To this award was added allowances of a permanent feature on her monthly emoluments. She was also awarded leave days commuted to cash which she had accrued during the period of one year. She was further awarded all the benefits she would have received if she left employment otherwise than on disciplinary ground. In the end, the Plaintiff was awarded housing allowance per month for one year. She was also awarded gratuity, separation bonus and repatriation allowances. The court rejected a claim for damages for mental distress as the same had been adequately covered in the general damages awarded comprising one year’s salary. The grounds of appeal filed on behalf of the Appellant were substantially a criticism and complaints against the various awards made by the learned Deputy Registrar. Thus, it was argued in the first ground that the learned Deputy : J4: Registrar erred in law by holding that the Respondent was entitled to all the benefits which she would have received had she left employment otherwise than on disciplinary grounds. It was submitted on this ground that this being a case of wrongful dismissal, the measure of damages should have been those that would have restored the Respondent to the original position by the Appellant giving the prescribed notice for termination. Counsel however, conceded that in certain circumstances like in the case of ZAMBIA NATIONAL BROACASTING CORPORATION VS PENIAS TEMBO AND 0THERS(2), the court had ordered one year’s salary at the rate appropriate at the time of termination. But it was submitted that there were no aggravating circumstances in the instant case contending that since the termination was without notice, the Respondent was only entitled to one month salary and not one year’s salary as awarded herein. Ground two criticized the award of gratuity of three months on basic pay over seventeen years served. The contention was that there was no basis at law for awarding gratuity for an employee who was dismissed. This contention overlooked the fact that judgment was by consent; the effect of which was that the dismissal was wrongful. The rest of the grounds criticising the various awards were all dependent on the arguments advanced in grounds one and two. : J5 : On behalf of the Respondent it was pointed out that the assessment was as a result of a consent judgment by the parties and that the consent judgment was based on all the claims as pleaded in the writ of summons. We have anxiously considered the judgment by the learned Deputy Registrar as well as the evidence on record supporting the same. In our view,we agree with the learned Deputy Registrar that the case presented special circumstances, which as a matter of law, the learned Deputy Registrar was entitled to take into account when making the award. The Respondent was certainly unfairly and ill treated. Here is an employee who had served the Appellant for over fifteen years. She was transferred to a Holding Company which took her on but in a lower position; when she queried, she was transferred back to the Appellant who did not also take her on. No assignment was given to her and no disciplinary action was taken against her. She remained, according to the Deputy Registrar, in suspense until she commenced these proceedings. Judgment was entered in her favour by consent. The Respondent deserved compensation of more than damages equivalent to one month’s notice, particularly bearing in mind that the judgment was entered in her favour by consent. We find no basis for criticizing the awards made by the learned Deputy Registrar. The evidence clearly supported the various claims awarded. The appeal is dismissed with costs to be taxed in default of agreement D. M. Lewanika, DEPUTY CHIEF JUSTICE E. L. Sakata, SUPREME COURT JUDGE SUPlfe^^O^^^DGE