Constable Flywell Botha v Attorney General (1988/HP/1373) [1993] ZMHC 112 (26 November 1993)

I1f TU 111.lR COUR'f !Oil Z. JJSU HOLT>;.;rJ AT LUSAKA 1988/JIP/1 }7) BI 'f VB E Bl OOJfSTABLS ft. NELL OO'rH.t ud 'l"I~ &T'l'ORNr.f GE:NtliWi. L Def•DdllDt Befon the Roao\ll'll"e Nr. J•ati.•• B. L !h,ea,- ill Chaaltere at Lu:aka oa the 26th BoYea•er• 199, at 0910 Jsouoa. For tla• Petitioael" l'or tbe De-teiada■t lb-. L Mwe!!p, Jou lutlka Is C.,..,. l ... D. f.aaote, State AdYOate JV. DGll&BT la tbi• . . . . , th• Plaiatif't•• elaill i• tori 1. A 4nlarati01I that the Detesia11t•• ••tioa to cU.aeharp tbe P.laiatiff troll the Poli•• J'oNe oa the croud that la• bad Ian• »rofe.uioaal ta .o:dn.c l• that •ther noh ltonn vho tanaed ,rotemeul are •till ea:,l.07ed _,.., the Deteadant u Po11 . . •· :~ett±G.e:re: .2. Aallalaat at the .. u clffiatoa, •tHharcto-c the Platatitf trae the .t>ollM Foree• ud J. Costa to ancl iuidatal to W.. att. l!arlBc heard tbe Plaiatitt ud hu vlt••- l>Wi! aJtd the I>efuda11t1 l •• . . uafi .. that tlae P.laia-tttt•• diccharce boa hi• .. '1oyaent ~ ~·utttled. 1be ta.eta •:r that the PJ.aiatitt ,_. ... Ued ••d btemeved 1t7 a llr. L. A. tfalenp aad· ,ernaded h111 to •tQ ~xilll• i'bta i■teniew llll8 follewd ~7 • lette-r So. Pil151t/. Y16"9 dated 0.t-c,kr 11, 1985 i.a l!dd.•ll be . . . eba.rpd tOP tunbac •:rof••ioaal aiul vaa ct Ya 1i. ciaye hi whl•b to eu.i,-te 1n . . . u. tile Pla1•Uff retvaed to e.u-.1.,at• hillael.f. 'llie tnwa of 8"tioa 1J of Ca-• 1'3 are Yery clur. S..tioa 13 atatff alld I C1110hl "1lo Peli .. otftffl" aball, wltho11t the eoue•t ot tile Jlim.a,te.r, a-111.llce hi a117 ..,1oyweat U' otti•e ldlataoeYez- otber than b aNOrdaa•• witll bi• chltiu 1111der thi• .wt•. Ia hi• eddn•• tlle PlaiDtltt a.daitted that he,... "1Hbar1e4 llie .. 11ae • Mi• .... 1• aot aup,oeed to ~•coae • ,rote•rioul .oxer aade-r Seetioa 13 of a.,. 1)J. - \ I J2 I lie reh•ecl to ••••JJt the req•e•t lt7 tbe laSJector 0-.ral of Poll•• to stoy fl"Of•aetoul ~ ... lie 414 1101 de ao neaa•• proteaaoul. Mxi.a& wu ,aytac Id.a aore th.all llhat be .,.. settiac . . • Poliee Otti•er. Aa I ai4• diaaieaal waa j... Uf1e4 alld l~vill 411a1•• tile cld.11 with eoate to the Defudallt api■at the P.lailltUt. B . L~ J11DG!l IH TH£ SUPaEN! COURT 0, LU-mfA HOU)!N AT LUSAKA (Chll Jurlsdlctlon) APPfAL NO. 8 Of 1\J93 BETWEEN: ZAMBlA AIRWAl'S COIPOAATTON LINIT!O Appellant and FLORA ftUIUt>LO COMM: Hplube C. J.. Girdner and Oltrwa. JJ.s. et Lusaka on 25th February and 14th Stoteaber, 1993. For ttHJ Appellant: Mr. A. G. Kln1riw1la, Legal Stl"'Ylces Con.)t)r&t1on. for the ftespoROMt: Mr. M .. H. Ndhlo~u. H. H. Ndtovu and COIIPtny. JUOGME•t ChJrwa J.s. daJtvered judgmtnt or tht Court:~ Cases ntftrred to:- (1) Mumtla ~s Zambi• PUl>lis~tng CCIGlptnY (1982J l. A. §3 t nfor••tt on from ln 1967 as'an air -ti'osteBr;- 1nd Th• h I st0r1 of th 1 s met ter 1 s tru t the rtspond•nt w•s •111ploy9d by the appellant. ,1t tne ti~• of her ter•ination of her e~ployaent •~• rose to tne rank of Supervisor atr hostess. somttl~• in 1987 thf appellant got the StCU?'i ty wt ngs of tl'lt sovarnnient 1oine thal the respond&nt was tnvol•ed In drug iraf,tcklng, Sne w11 lnvestigatlng tht put on susotnslon whl I• the 1ppellant was th• respondent had a allegetlons. aeetlng with some of'f'lct1l1 of th1 Personnel Manager ~~o WI$ defence wltnass in th, Court below. The ineoung was aboot th, allegattons of tl'le respondent• s tnvolv~..nt In took soantth1e ao<S during the moettftQ drug ttu1 respondent was told thet Jn Yiew of the seriousness of the 111,011.ttons she should resign or she would be dls11tt1sed. t!'H 1pp•lt•nt it1elodlng tn ••rly 1988 The N«tttns Sometime tr-•fflcktng. /2 ... After the Af c.er th~ mftet ing ahe w•nt home and i,rrote a lette.r deterl 2nd May. l~Ot> coaignlns rJue to dow,•tic prol..leme vhici, ahe vantec lo eort out. and l1andeo thia lettei: t.o the Personnel uf[ker of the oppellont.. Theratt'ter she went t.o aeek leg■ l advic• uh.ere she was adviaed to wu.hdraw the lelLel" ~f reeignelion ,mo in l t.• place tend et a letter of 1.·ttt i remon t... She wrote t hu l~tter of C'ettreMnt aa adv.ieed by het· lawyera and egein t.ook th1A lett.oc to the Personnel Officer and 111,aked to \.11thdreir het ~arller ltitter ot resig11ation buL tbe feraonhel u{ticer ,old her Lh1H. tut W<Julc, fot·ward her aocond letter but .r@fuaed to eurrendar tho resignation letter. On l)th June, l~&a Lbe Appel lent, tt1rough t.he Per•onnel Hansg•r urote t.he reapondent 1tccepting her resignation and wa• told 1.:hat her tennJ.nal ben•fitM woul~ w, calculaLeu up LO 27th September. 198d. Being dia~alietieG witri th• decieion, the respondent B1Jecl 1..he eppellanl in the H iah Court. The er,<lot"se1Nnt. ()n c.he \Ir 1 t cld imeu for a dee lars t ton th•ts .. (a) ~he had not resigned from Aervjces with the deCendant \8ppellanc) and ae such th• defendant'& accept8nce of the ~•sianatton wae null and voidi (b) the d•ciaion of the defendant (appellant) ~o back date the reatgnation iB null and vold. l'he loar-ned t.r ial judgu aft:et" • Lt .lal fuund that. tho t: h:curn s ta.n~e& under which the responc.ieint .,,.. aade to write the letter of resignal ion were noL free ana volunt.e1·y ·1n chat ahe "•• given 11n opti,)n of 1·e•igning or c;o be diami••ed and he aran'ted the doclarat ion that her pu~pot'LecJ teaignat.ion wai. null end vahJ and ~he dec1eion to back-date the letter waa also null anu vo1d. Uc he.waver ~tdereo \.hat & lnce the ·t•espondeoL could not Le f:oi-c•c.i bock, into employra1ent she- \lail entitled to damagae as claimed to be e& ■es1ed 1.>y tho Doputy .l\J~f&i&tc-,n4 t.1ona th.at the lt 111 •&•inst these declu·a- appollant has appealed. • -J3- Mr. Kinariwala for the appellant argued two grounds of appeal. The first ground was to the effect that the learned trial Judge erred in g·ranting the declarations that the letter was written under coercion and duress in that her evidence to that effect at trial was not just a mere variation of the pleadings but a totally different case altogether and as such she was not entitled to the declarations granted. The second ground of appeal was that the learned trial Judge erred in holding that the resignation letter was not free and voluntary in that there was no evidence proving that fact. In reply Fp r the respondent it was submitted that what they claimed was a declaration that the respondent had not resigned so that if that was granted the respondent should have been treated as having retired ao that she enjoys certain privileges such as free air travel wherever the appellant operated like others of the like of Mrs. Adame. It was also submitted that they were claiming damages for wrongful dismissal in this case three (3) months pay in lieu of notice. case was different from that as pleaded, it was submitted that the appellant raised no objection to the evidence being led which was not in line with the pleaded case. In reply to the argument that the respondent's We have considered the arguments advanced by the parties . We note that the case for the respondent as pleaded was for a declara tion that she did not resign from her employment because the letter purporting to be the letter of resignation was withdrawn. We further note that in her evidence the respondent stated that she was given a choice to resign or to be dismissed and that because the two choices were both detrimental she considered this as duress. Taking her evidence, we agreed with Mr. Kinariwala that the case as pleaded was not supported by evidence that could have earned her the declara tions she sought . We would regard her evidence as not a variation or modification but a radical d,eparture from her case which, as we said in Mumba v Zambi a Publishing Company (1) would not entitle 3/her to •..•. -J4- eucceed. Her case was that she had withdrawn her resignation letter but the learned trial Judge considered the matter on the basis that she did not have a free will when she wrote the letter and because of this the letter was null and void ab inition. This total departure from the pleaded case cannot be supported by an argument that there was no objection from evidence being led establishing a totally different case. On the case as pleaded, the respondent having written a letter of resignation, which decision wasa unilateral one on the part of the respondent, and the letter having been received by the appellant and acted upon, that conclusively terminated her employment. As the trial Judge correctly stated, the respondent could not be forced to work, the appellants could not have rejected the respondent's letter of resgnation. The best any party can fall on in situations of unilateral decisions such as terminatiQn of employment or services is damages measured in terms of length of notice required to be given before terminating employment if none is provided for, tben a reasonable period of notice. Having said:thie, we agree with the appellant's argument that the learned trial Judge erred in granting the declaration that the letter of resignation was null and void. The resignation letter was valid and effectively terminated the employment. The respondent infact was fortunate in that she was given three months before her services were terminated and that wae reasonable notice. We therefore set aside the declarations granted and hold that. the resignation letter was valid. We therefore allow this appeal with coats both in this Court and the court below. . . . . . . . . . . . . . . . . . . . . M •. s •. w. NGULUBE CHIEF JUSTICE . ... .. ... .. " .... ... . ». 1' •• GiilillNEll SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE