Cacius Mulenga v Annie Lupiya (APPEAL NO. 314/2022) [2024] ZMCA 274 (2 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) - - l~u c o r . . 1()f ·• rt._,, APPEAL NO. 305/2022 BETWEEN: 0 3 OC r 2C24 Cl\ IL R[("l<:. TJ. y 2 ,:,'1 ZAMBEZI PORTLAND CEMENT LIMIT~--_.;_~ APPELLANT AND ANGSON CHANDA MAYELE AND OTHERS RESPONDENTS Coram: Chashi, Makungu, and Sichinga, JJA on 18 September and 3 October, 2024 For the Appellant: Mrs. A Mwalula of Ndemanga Mwalula & Associates, agents of Messrs Central Chambers Mr. A. Ramsey of Messrs Central Chambers For the Respondents: In person JUDGMENT Sichinga JA, delivered the Judgment of the Court. Cases referred to: ,1 • : ' ' ' 1. Bernard Chewe and 11 7 Others v Attorney General, SCZ Appeal No. 197 of 2 015 2. Colgate Palmovlive Zambia Inc. v Abel Shemu Chika SCZ judgment No. 11 of2005 3. Mwape and 61 Others v ZCCM Investment Holdings Limited Plc, SCZ Appea l No. 57 of201 2 4. Attorney General v Achiume (1983) ZR 1 :: 5. Communications Authority of Zambia v Vodacom Zambia Limited (2009) ZR 196 at page 211 6. Standard Chartered Bank Zambia Plc v Kasote Singogo, SCZ Appeal No. 212of2016 7. Aaron Mwiya and 6 Others v Trade Kings (Z) Limited, SCZ Appeal No. 161 of2016 8. African Banking Corporation (Z) Limited v Lazarous Muntete CAZ Appeal No. 51 of 2021 9. The Secretary General and/ or the acting Secretary General of the Zambia Red Cross Society v Charles Mushitu, SCZ Appe al No. 29 of 2016 Legislation referred to: 1. The Employment Act, Chapter 268 of the Laws of Zambia (repealed) Other works referred to: 1. Bryan A. Gamer (Ed), Black's Law Dictionary, 8 th Edition [Thompson West, 2004} 1. 0 Introduction 1. 1 This is an appeal against the judgment of the High Court, Lamb a J, delivered on 15 July 2022, in which she found in favour of the plaintiffs (now respondents) on certain of their claims. Particularly in relation to this appeal, the learned Judge held that the respondents were entitled to damages for pain and anguish. 1.2 The matter b efore the lower court was an employment dispute commenced on the General List of the High Court. The appellant has challenged the resultant judgment, in the first instance as being of no legal effect, owing to want of jurisdiction and, in the second instance or in the alternative, J2 that the lower court erred 1n granting the respondents damages for pain and anguish. 2 .0 Background 2.1 This matter was commenced by the respondents (the plaintiffs in the lower court), against the appellant (the defendant in the lower court), by way of writ and statement of claim on 13 April 2016. By the said writ, the respondents were seeking the following reliefs: (i) A declaration that the respondents' redundancies were wrongful and unlawful and therefore, null and void; (ii) Damages for wrongful redundancy; (iii) An order to pay each of the respondents one month's salary in lieu of notice; (iv) An order that the appellant makes prorated payment for the respondents for the months served in excess of years served, not considered in the calculations; (v) An order for payment of the July 2015 monthly bonus for the respondents; (vi) A declaration that the appellant wrongfully and unlawfully withheld the deductions meant for clearance of loans to Micro Finance Company Limited; (vii) Damages for causing the respondents not to be credit worthy, tarnishing their standing in society, as well as depriving them of the chance to borrow money and conduct businesses; (viii) An order to pay the deducted amounts back to the respondents, with interest; (ix) Damages for pain and anguish suffered by the respondents as a result of the appellant's unilateral and immediate redundancy; J3 (x) Da m ages for withholding of the responden ts' money meant for payment towards loans; (xi) Interest thereon; (xii) Costs; and (xiii) Any other relief that the court would deem fit. 2.2 The r espondents' case before the lower court, as gleaned from the statement of claim on the record of appeal, was that their union had signed a collective agreement with the appellant, stipulating terms of employment. That, in July 2015, the appellant terminated the respondents' employment through wrongful and unlawful redundancy in that: (a) th e appellant replaced most of th e respondents soon after the redunda n cy and failed to follow the laid d own procedure con trary to the provisions of the collective agreement; (b) the a ppellant unilaterally declared th e respon dents redundant, without holding discussions with the union or giving the union one m onth 's n otice of the redundancy as provided under the collective agreement or showing h ow it was possible to do so; (c) the appellant did not follow the principle of first in last out in the said r edundancy; and (d) the appella nt only gave th e respondents redundancy letters a day before the redundancy took effect, without giving them any n otice or paym ent in lieu of notice . 2.3 The respondents, further, alleged that the appellant underpaid them their redundancy packages, by not considering pro-rata payments for the months in excess of the years served, and that the appellant did not also pay the re spondents their bonuses for the month of July, 2015. J4 :: 2.4 It was also the respondents' assertion that they got loans from Micro Finance Zambia Limited, and repayments were made through the payroll. However, without authority from the respondents, the appellant wrongfully and unlawfully withheld all deductions made from their salaries and redundancy packages, and failed to remit the same to Micro Finance Zambia Limited. That, consequently, Micro Finance declared the respondents as defaulters and placed their names on the Credit Reference Bureau (CRB) as bad debtors. That, the respondents' standing in society has been tarnished and they have suffered loss as they are not able to borrow money anywhere , to start businesses to sustain their families , since they are blocked by the CRB. 2. 5 There appears to be no defence exhibited on the record of appeal before us. However, the appellant's defence as gathered from the judgment of the lower court was that the appellant accepted that the respondents were, indeed, declared redundant but their redundancy was not wrongful and unlawful. The appellant averred that all the necessary steps in the collective agreement were complied with. The appellant maintained that the affected workers did not fall under the provisions of Section 26B of the Employment Act, Chapter 268 of the Laws of Zambia (since repealed) . 2.6 The appellant also denied that the notice of redundancy was not given to the respondents, stating that the union was furnished with the same during its meetings with them. JS Further, the appellant denied that the respondents were immediately replaced with other employees soon after separation. Furthermore, although, the appellant admitted that the letters of termination of employment were given a day before cessation of employment, it maintained that the collective agreement did not stipulate the period of giving such notice, thereby, giving the appellant the liberty to serve the notices at the time it did. 2.7 The appellant denied that the respondents were entitled to payment in lieu of notice because the manner of separation from employment requiring notice was different from that on account of redundancy, and in addition, that the collective agreement did not provide for such payment. 2 .8 The appellant denied that the respondents were entitled to July bonuses, with the exception of forty-one (41) of them. Further, the appellant denied that the respondents got loans or that the repayments were through the payroll. The appellant also denied having made deductions for the said repayments and failing to remit them to Micro Finance; and the respondents, thus, being listed on the CRB as bad debtors. 2. 9 When the matter came up for trial before the lower court, the respondents were in attendance, while the appellant was not. The lower court having satisfied itself that there was proof on the record that the appellant was aware of the trial date and had not given any reasons for failing to be in attendance, J6 proceeded to hear the matter without the appellant (defendant in the lower court). 3.0 The Judgment appealed 3.1 The learned trial Judge, after considering the evidence before her, found as common cause that the respondents were employees of the appellant and they were separated from it by way of redundancy. That, from the pay slips and separation letters adduced as evidence, the respondents were given redundancy pay of, inter alia, two months' pay for each completed year of service. 3.2 The learned trial Judge also found , as common cause, that the letters notifying the respondents of their redundancies were only served on them a day before they were to cease working. 3.3 The learned trial Judge, further , highlighted that there was nothing in the testimonies of the respondents' witnesses to show that any of them had written contracts of employment with the appellant. However, the Judge noted that there was a collective agreement between the appellant and the unionized workers, which spelt out the terms and conditions of employment. With this, the learned trial Judge established that what was left for her to determine was whether the respondents were entitled to the claims in their originating process. 3.4 Regarding the respondents' claim that the redundancies were wrongful, unlawful and null and void, the learned trial Judge J7 found that the redundancies were justifiable, notwithstanding the lapse in following procedure, on the part of the appellant. She held that the respondents' claim for a declaration that their redundancies were wrongful and unlawful, thus entitling them to compensation, was misconceived at law. 3.5 As regards the respondents' claim for one month's pay in lieu of notice, the lower court was of the view that the same was applicable even in the case before her, being separation by redundancy. 3.6 The learned trial Judge found no merit in the claim for pro rata payments of redundancy pay for excess months for completed years of service available to the respondents and accordingly dismissed it. The learned trial Judge explained that her view was that provisions in most agreements is generally payment for each completed year of service and in the absence of any provision in the collective agreement, she saw no reason to depart from the norm. 3.7 On the claim for a declaration that the appellant wrongfully withheld deductions meant to liquidate loans and damages for the same, the learned trial Judge found that the appellant, although deducting loan repayments from the respondents, was not remitting them to Micro Finance Limited. The Judge, however, found that the respondents had not adduced evidence to show that they were actually listed as delinquent debtors or that they were unable to obtain loans from other financial institutions because of being delinquent debtors. She J8 was of the view that referral of names of persons as delinquent debtors does not automatically imply that such persons are listed as such. She stated that the respondents needed to have availed proof that they had been listed as delinquent debtors and that, that actually impacted them as claimed. The learned trial Judge, thus, dismissed the claim. She did, however, acknowledge that the monies deducted as loan recoveries were still being withheld by the appellant, and thus, declared that such withholding of monies by the appellant was wrongful and accordingly ordered that the monies withheld be paid back to the respondents, with interest which would suffice for the claim of damages for such withholding. 3.8 Regarding the claim for payment for bonuses, the Judge observed that the appellant, in its defence, stated that only forty-one (41) of the respondents were entitled to bonus payment. Thus, for the respondents whose duty it was to adduce evidence that they were entitled to bonuses, but failed to prove the same, the claim failed. 3.9 As regards the claim for damages for pain and anguish, the learned trial Judge found that it was inevitable that the respondents had been subjected to pain and anguish when the appellant did not notify them of their being declared redundant within reasonable time. The learned trial Judge relied on the case of Bernard Chewe and 11 7 Others v Attorney General1, in which the Supreme Court is said to have pronounced that, because redundancies are planned, an J9 employee needs to be prepared for the loss of their job and that failure of timely notification is considered to amount to bad faith. The Judge went on to find that the respondents' claim for damages for pain and anguish was successful and awarded damages to be assessed by the Registrar, with interest to be deemed appropriate after assessment. 4.0 The appeal 4.1 Dissatisfied with the High Court's judgment, the appellant appealed before this Court, advancing three grounds of appeal as follows: 1. That the trial court erred in both law and fact when it held that the funds held up by the appellant be paid to the respondents when the said funds were for onward transmission to the facilitator of the loans already obtained by the respondents; 2. The learned trial court erred in law and fact when she awarded the respondents damages for pain and anguish, in the absence of evidence to support such award; and 3. The learned trial Judge erred in law and fact when she failed to adjudicate upon all issues in controversy in the action. 5.0 The appellant's arguments 5 . 1 Mrs. Mwalula, counsel for the appellant, relied on the appellant's amended heads of argument in support of its appeal together with the amended record of appeal filed on 1 December 2023. JlO 5.2 Under the amended ground one, the appellant contends that the funds, allegedly deducted and withheld from the respondents (which funds were paid to the third party), were intended for repayment of loans that were already obtained and credited to the third party. 5.3 It was argued that it is not in dispute that the respondents were employees of the appellant at the material time that they obtained loans, particularly unsecured loans on the basis that some would be repaid through the payroll system of the appellant. That all such loans were expressed on each respondent's pay slip and narrated as "Microfinance Loans". Page 92 of the record of appeal referred to. 5.4 It was submitted that an unsecured loan was one that did not require a borrower to provide any collateral. In support of this submission, reliance was placed on Black,s Law Dictionary1 which describes an 'unsecured debt/ loan' as "a debt not supported by collateral or other security." 5.5 The appellant submitted that, in the respondents' desire to obtain loans from a third party, which third party was not a party to the proceedings, there was an arrangement or Memorandum of Understanding (MoU) entered into, that loans would be disbursed to the respondents on the one hand, and repayments would be through deductions effected on the respondents' pay slips by the appellant, on the other hand. That onward transmission of the amounts deducted was an obligation of the appellant. That the debtors (the respondents) Jll had already been credited with the loans and the obligation of effecting repayments lay with the appellant. We were urged to follow the principle enunciated in the case of Colgate Palmolive Zambia Inc. v Abel Shemu Chika2 to the effect that parties are free to enter contracts and the same must be given their intended effect. We were urged to uphold this principle in the present case. 5.6 It was submitted that the order by the learned Judge that the appellant ought to pay the respondents monies meant for loan repayments is misconceived at law as the latter are not entitled to it. It was advanced that if the order is sustained, it would amount to unjust enrichment of the respondents , who obtained and used up their respective loan credits , which repayment was being deducted from them by the appellant for the facilitator of the said loans. 5. 7 We were urged to reverse the order made by the lower court and allow the appeal. 5.8 In r espect of ground two, it was submitted on behalf of the appellant that there was demonstration of the respondents' asserted mental anguish and pain, by way of evidence. That, none of the respondents led evidence at trial to show that they had, indeed, suffered pain and anguish to warrant the granting of damages th ereof. Calling in aid the case of Mwape and 61 Others v ZCCM Investment Holdings Limited Plc3 , it was submitted that he who asserts a claim in a civil trial J12 must prove on a balance of probabilities that the other party is liable. 5.9 It was contended that it was erroneous for the court below to grant damages for pain and anguish when the respondents had not led any evidence to prove the nature of such pain and anguish. That, it was conceivable that employment would at some point end and redundancy is a means of ending a contract of employment. Further, that it had not been demonstrated by medical evidence and what event of shock arose to warrant damages for pain and anguish. 5. 10 We were urged to allow this ground and reverse the Order awarding the respondents damages for pain and anguish as the same had not been proved. 5.11 The third ground of appeal, was that the learned trial judge failed to adjudicate upon all matters in controversy. However, counsel made no submissions regarding the said ground of appeal. 6.0 The respondents' arguments 6.1 The respondents filed in their heads of arguments on 4 January 2024, the gist of which was that this Court should uphold the decision of the lower court, by allowing the award of damages to the respondents, for pain and anguish. 6.2 Submitting in response to ground one, the respondents contended that the order that monies should be paid to the respondents should be upheld by this Court because the J13 undisputed evidence and facts were that the appellant wr ongfu lly withheld d eductions meant to liquidate loans obtained from Micro Finance. 6.3 The respondents, further, submitted t h at the lower court's decision, now assailed, was made with regard to the relevant evidence and facts . Therefore, it would be a departure from the trite position as regards the circumstances in which an appellate court can reverse findings of fact made by a lower court. In th is regard, the respondent s called in aid the cases of Attorney General v Achiume4 and Communications Authority of Zambia v Vodacom Zambia Limited5 • 6.4 The respondents submitted that because the appellant deducted monies as loan recoveries, without r emitting the same to Micro Finance, it is only proper that the monies withheld are paid back to the respondents, as the conduct of the appellant suggested that they had no intention of remitting the monies to Micro Finance, which u ltimately resulted in the respon dents being reported as delinquent at the CRB. With this , the respondents urged this Court to uphold the decision of the lower court. 6.5 In response to ground two, the respond ents argued that the lower cou rt was on firm ground in awarding them damages for pain and anguish. That, the evidence of three of the respondents, at trial, shows that the appellant failed to mentally p repare the respondents for the loss of their jobs when it gave them termination letters on their last day of J14 work, contrary- to established procedure. That, it is against this background that it became inevitable for the respondents to be subjected to pain and mental anguish. 6.6 Citing Black's Law Dictionary1 , the respondents contended that pain and anguish constitute a highly unpleasant mental reaction such as anguish, grief, fright, humiliation or fury that results from another person's conduct. That, the question at hand was whether the instant loss of employment by the respondents did not reasonably trigger unpleasant mental reactions such as anguish, grief, fright and humiliation. It was the respondents' submission that the said question should be answered in the affirmative. The respondents, further, submitted that the fact that they lost their jobs in a blink of an eye must be evidence enough to prove their claim for damages for pain and anguish. That, this Court should take judicial notice of the fact that any person who loses a job in the manner the respondents lost theirs is bound to feel grief, shame, humiliation, embarrassment, anger, worry and disappointment. 6.7 With this, the respondents urged us to uphold the lower court's decision, awarding them damages for pain and anguish. JlS 7.0 Our considerations and decision 7. 1 We have considered the grounds of appeal, the record of appeal and the arguments in support, and in response , thereof. 7.2 On ground one, the learned Judge, with respect to monies deducted as loan recoveries, found and held as follows: "However, since the evidence before me suggests that the monies deducted as loan recoveries are still being withheld by the defendant, it is hereby declared that such withholding of monies by the defendant is wrongful. I order that the same be paid back to the plaintiffs with interest whose rate will be indicated later which in my view suffices for the claim of damages for such withholding." 7.3 At trial, the respondents called three witnesses. PWl, Angson Chanda Mayele, testified with respect to the loans, that the appellant signed an MoU with Zampost and Micro Finance that it would be deducting employee loans from source and remitting the money to the financial institutions. That the respondents' names were referred to the CRB for the appellant's failure to remit the funds. Pages 246 to 248 of the record of appeal ref er. 7.4 PW2, Edward Simukwai, testified that he obtained a loan from Micro Finance and that his pay slip, (shown at page 182 of the record of appeal) confirmed that he was indebted to Micro Finance. He beseeched the court to order the appellant to pay J16 him the money to enable him settle his indebtedness. Pages 249 to 251 of the record of appeal refer. 7. 5 PW3, Morrison Nkhata, gave similar testimony as the other witnesses above . He told the lower court that he equally obtained a loan. That money was deducted from his salary but not r emitted to Micro Finance. Pages 252 to 253 of the record of appeal ref er. 7. 6 At page 159 of the record of appeal is a letter from Micro Finance to the Bank of Zambia, dated 10 July 2015 which reads in part as follows: "In line with a Memorandum of Understanding that was signed between ourselves and Zambezi Portland Cement, they are obliged to deduct at source all loan amounts disbursed to their employees and remit the monies directly to us. As at 30th June, 2015, they have arrears of Kl,904,063.92, which they have deducted from their employees and not remitted to us. In view of the above, we have submitted names of the employees that are in de/au lt to the Credit Reference Bureau." 7.7 While it is not 1n dispute that monies were being deducted from the respondents' salaries pursuant to an MoU executed between the appellant and Micro Finance Zambia, we cannot fault the lower court for ordering the monies withheld by the appellant to be paid to the respondents because the third party/ parties were not a party to the action and cannot ultimately enforce a judgment to which they lack locus. We find no merit in the first ground of appeal. J17 .. 7.8 The second ground of appeal 1s that the learned trial Judge erred in law and fact when she awarded the respondents damages for pain and anguish, in the absence of evidence to support such award. The respondents have argued, in rebuttal, that the court below was on firm ground when it awarded damages for pain and anguish. That, the fact that they lost their jobs in a blink of an eye must be evidence enough to prove their claim for damages for pain and anguish. Further, that this Court should take judicial notice of the fact that any person who loses a job in the manner the respondents lost theirs, is bound to feel grief, shame, humiliation, embarrassment, anger, worry and disappointment. 7. 9 It appears, 1n the first instance, that the respondents want this Court to uphold the award of damages for pain and anguish, simply because their employment was terminated through redundancy and, in the second instance, that we should take judicial notice that persons who lose their jobs by such means, automatically suffer pain and anguish. Proceeding 1n this fashion would entail that we should adjudicate on legal issues , moved by emotions and not persuaded by reason and law. As courts of law, established to administer the law, we would be falling far short if we took such an approach to issues before us. That is why we have several set principles or standards by which parties prove their allegations and convince courts on a balance of probabilities. J18 7 .1 0 Particularly, regarding d amages for p ain and anguish, it was s tated b y the Suprem e Court, in the case of Standard Chartered Bank Zambia Plc v Kasote Singogo6 , that: "Although damages for mental anguish, distress and inconvenience may be awarded in appropriate cases, as was the case in Attorney General v Mpundu, an award of such damages should only be considered where they are pleaded and proved. Nowhere in the writ of summons, statement of claim or evidence has mental anguish, distress or inconvenience been claimed. No evidence was led to prove mental anguish, distress or inconvenience. This claim should not have been awarded by the court on its own motion even under the omnibus head of "any order that the court may deem fit" in the statement of claim." 7 .1 1 In a later case, Aaron Mwiya and 6 Others v Trade Kings (Z) Limited7 , th e Suprem e Cou rt h a d the following to say: "We begin our determination of this issue w ith a consideration of whether he is entitled to damages for anguish, mental stress and torture. The relief was claimed in the writ of summons and statement of claim but it was not specifically pleaded in either documents by way of setting out the contentions in relation to the claim. Further, and as Mr. G. Mulele has argued, no evidence was led by the Fourth Appellant in his testimony in the Court below in support of the claim. There is no reason for us to award these damages as claimed." (Empha sis ours) J19 7.12 What we gather from the two authorities above is that in order for a court to award a party damages for pain and anguish, that party must, firstly, plead it and, secondly, prove it at trial. In terms of what qualifies as pleading pain and anguish, the Aaron Mwiya case, cited above, provides the clarity that this is not merely a party claiming the pain and anguish, but, the setting of contentions in relation to such a claim. In other words, the claimant should provide facts leading up to the pain and anguish, ultimately claimed. Black's Law Dictionary defines a pleading as: "A formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses." 7.13 In conformity with the Supreme Court precedent, in the case of African Banking Corporation (Z) Limited v Lazarous Muntete8 we stated the fallowing: "We note that in enhancing damages or awarding exemplary damages, the courts have taken judicial notice in most circumstances as was the case in the Dennis Chansa case. It must be emphasised to the industrial and labour relations practitioners that if a party is seeking enhanced or exemplary damages, such party must adduce evidence and explain any special circumstances to take his case out of the realm of the ordinary award of the notice period, rather than leaving it to the contemplation of the court. It would even be prudent to plead the same and thereafter lead evidence that the party claiming is entitled thereto. Therefore, the court J20 will only grant enhanced damages if an employee can prove that the manner of the dismissal caused distress that was con temp lat ed.,, 7. 14 Against the backdrop above, we must state, at this juncture, that it was a misconception on the part of the respondents to argue that we should automatically hold that they suffered pain and anguish because their employment was terminated somewhat suddenly. As established above, there is a standard of proof of pain and anguish that must be demonstrated by the respondents, in order to be awarded the damages claimed. This also entails that the respondent's invitation that we take judicial notice that persons whose employment is terminated abruptly suffer pain and anguish, is flawed for requesting the Court to be overly assumptious. 7.15 We have perused the respondents' statement of claim at pages 30 to 32 of the record of appeal and are not satisfied that it tabulates contentions that form the basis for the respondents' claim for pain and anguish. In any event, the respondents' claim for pain and anguish as it was expressed in the statement of claim, appears to be anchored in their belief that their redundancy was unilaterally and immediately effected by the appellant. This was rejected by the lower court, which essentially found that the redundancies were, in fact, justifiable and the declaration sought by the respondents that their redundancies were wrongful and unlawful was a misconception. J21 • 7.16 This pronouncement was made by the lower court, on one hand, while on the other hand it acknowledged that there were lapses in following procedure on the part of the appellant. We find that these two pronouncements are directly contradictory because our understanding is that for something to have been 'wrongfully' done, it must have been done in a manner that is inconsistent with some laid down procedure. Blacks' Law Dictionary, to this end, simply defines the term 'wrongful' as something that is contr ary to law or unlawful as is the case in wrongful termination. It is, therefore, confusing wh en, in one breath, the learned trial Judge says that procedure was not properly followed, and in the next, says that the lapses in fallowing the procedure was not wrongful. 7.17 To make matters worse, the lower court, despite acknowledging the a ppellant's lapses in following procedure and, further, disqualifying the said lapses from being wrongful, proceeded to hold as follows , regarding the claim for pain and anguish, at J16: "Over the claim for damages for pain and anguish, it is inevitable that the plaintiffs were subjected to that when the defendant did not notify them of their being declared redundant within reasonable time. As was stated in the case of Bernard Chewe & 117 Others v Attorney General, SCZ Appeal No. 197 of 2015, that because redundancies are planned, an employee needs to be prepared for the loss of their job. In fact, it is trite that such failure of timely notification is considered to amount to bad faith. Therefore, the plaintiffs' claim under this head is successful. Damages J22 are to be assessed by the honourable Registrar with interest as shall be deemed appropriate after that assessment. " (Emphasis ours) 7. 18 It appears the lower court's stance on the wrongfulness or otherwise, of the procedure employed by the appellant prior to declaring the respondents redundant, and the subsequent consequence is of the same characteristic as shifting sand. As an appellate court, we would not be aiding the situation if we were to uphold such uncertainty. 7 .19 As earlier stated, apart from being specifically pleaded, pain and anguish must also be demonstrated by evidence. We have perused the proceedings before the lower court and examined the testimonies of three of the respondents, who testified on behalf of all the respondents . Unfortunately, the witnesses' testimonies have not demonstrated any detailed account of how the respondents suffered the pain and anguish they were alleging or, indeed, even the symptoms they may have experienced. 7.20 Further, the witnesses did not produce any documentation in the form of medical reports from mental health professionals, to corroborate the alleged anguish suffered and that it was significant enou gh to impair the respondents' normal functionality and quality of life. The respondents could have also adduced evidence through testimonies of their colleagues or family members, demonstrating any disruption to their daily life, as a result of the alleged pain and anguish suffered J23 .. due to the appellant's conduct. The respondents, in our view, failed to substantiate their claim for damages for pain and anguish, to the standard above. Their case was simply not compelling. 7 .21 In view of the foregoing, we are of the view that the respondents in the lower court, did not only fail to plead pain and anguish , but also failed to substantiate their claim or establish a causal link between the conduct of the appellant and the alleged pain and anguish suffer ed. We, therefore, find merit in the app ellant's second ground of appeal and accordingly set aside the portion (at page J16) , of the Judgment assailed, by which the lower court granted the respondents' claim for damages for pain and anguish. 7.22 The appellant listed a third ground of appeal 1n the memorandum of appeal, being that the learned trial Judge erred in law and fact when she failed to adjudicate upon all issues in controversy in the action. Unfortunately, there were no submissions made in respect of the said ground in the appellant's heads of argument. 7.23 The above being so and on the guidance of the Supreme Court in the case of The Secretary General and/or the acting Secretary General of the Zambia Red Cross Society v Charles Mushitu.9 , we shall take it that ground three of the appeal has been abandoned and we so hold. J24 • 8 .0 Conclusion 8.1 In sum, th e appeal partially succeeds. The holdin g that the respondents are entitled to damages for pain and anguish, to be assessed by the Registrar, is accordingly set aside. 8.2 Given the partial success of the appeal, we order each party to bear its own costs. COURT OF APPEAL JUDGE C. K. Makungu COURT OF APPEAL JUDGE COURT OF APP J25