Zambia Bottlers Ltd v Banda (Appeal 2 of 1987) [1988] ZMSC 58 (1 September 1988)

IN THE SUPREME COURT OF ZAMBIA . Appeal No. 2 of 1987 HOLDEN AT LUSAKA (Civil Jurisdiction) ZAMBIA BOTTLERS LIMITED Appellant and GEORGE BANDA Respondent CORAM: Sllungwe, C. J., Ngulube, D. C. J., and Gardner, J. S. C. C. Chimansa, Nkwazi Chambers, for the appellant No appearance for the respondent 1st September, 1988. JUDGMENT Gardner, J. S. delivered the judgment of the court. This is an appeal from an assessment of damages by an acting registrar. In this judgment we will refer to the appellant as the defendant and the respondent as the plaintiff as they were in the court below. The facts of this case were that the plaintiff claimed that he had been wrongfully dismissed without adequate notice. A Statement of Claim was filed on behalf of the plaintiff stating that he had been wrongfully dismissed without notice and claiming the following detailed damages Loss of salary for September, 1981 Leave pay for period 1st October, 1980 - 30th Setpember, 1981 TOTAL - ■ = K242.00 K242.00 K484.00 The Statement of Claim terminated with the usual words, that is to say, it reads ”... and the plaintiff claims:- (1) Damages (2) Any other relief that the court may deem fit in the circumstances." When the case came to trial, the learned trial commissioner was informed by the parties that the defendant had consented to judgment. He therefore made an order that judgment would be entered against the defendant by consent and that the question of quantum of damages would be remitted to the registrar for assessment. Prior to the .../J2assessment - assessment of damages the plaintiff filed an affidavit in support of his application. In that affidavit he set out his claim for one month's salary in lieu of notice and leave pay amounting to one month's salary. He then went further and said in paragraph 13 of his affidavit that he had suffered emotional stress, anxiety and humiliation as a result of an improper allegation made against him by the defendant. He further said that he had been detained in police cells for one day as a result of the same allegation. In paragraph 14 of his affidavit, he said that, as a result of his dismissal, he had been unable to take up training in a college of management and he had suffered damages thereby. He further said, in paragraph 16 of his affidavit, that he had not received any reference from the defendant and had, therefore, suffered further damages. He then said that, as a result of his dismissal, he had suffered loss of employment for a $otdl of one year. He set out the exact loss that he had suffered as follows: (a) Salary for month of September (b) One month's pay in lieu of notice (c) Leave pay for thirty days (d) Pension contributions for the period 1st October 1980 to 1st October, 1981 at 5W of the basic salary of K242.00 per - - - K242.00 K242.00 K242.00 (e) (f) (g) month - K240.00 Emmotioflal stress, anxiety and humiliation- K3,500.00 Loss of opportunity for further training - K2.000.00 Loss of prospects for alternative employ* ment from 1st October, 1981 to date at K2,504.00 per annum - K10.016.00 TOTAL DUE K16.440.00 There was no dispute as to one month's salary, the leave pay which was due and the pension contributions which were claimed. At the hearing of the summons for assessment of damages, counsel for the defendant indicated that he Intended to oppose the claims which had not been Included in the Statement of Claim with the exception of the claim for pension contributions. Counsel then indicated that he required an adjournment so that he could put his argument further. The learned acting registrar pointed out that counsel had already had an adjournment and he refused to grant a further one. The learned acting registrar then adjourned the case without hearing further argument and said he would deliver his decision .../J3 later. - J3 - later. When he delivered his ruling, the learned acting registrar said that because there had been no affidavit in opposition by the defendant he would grant the whole of the plaintiff's claim. In consequence, he made a total award of K16.440, Including damages for emotional stress and humiliation, loss of opportunity for further training, and loss of prospects for alternative employment. The defendant now appeals against that assessment. There has been no appearance before us today by the plaintiff's representatives and we therefore, propose to deal with this appeal solely on the arguments put forward in the heads of argument by the learned counsel for the defendant. We are quite satisfied that, when there is a consent judgment after pleadings have been filed, the consent judgment is to the claim as set out in those pleadings and no other. Although it is usual for an affidavit in support of the claim for assessment of damages to be filed, such affidavit Is not allowed to go beyond the pleadings which form the basis of the consent judgment. It follows, therefore, that the plaintiff was entitled to have no more than that which was claimed in the Statement of Claim, that is to say, K484.00 in respect of one month's salary and unpaid leave pay amounting to K242.00. In fairness to the plaintiff however It was indicated by the defendant at the hearing relating to the assessment of damages that there was no objection to the claim for pension contributions. There were set out as being K240.00. For the reasons which we have given, this appeal is allowed. The assessment of damages by the learned registrar is set aside; in its place, we substitute an award as follows: Salary for the month of September One month's salary in lieu of notice Pension contributions - K242.00 - K242.00 - K240.00 Total - K724.00 We take into account the fact that Legal Aid had been granted in this case, and, subject to those circumstances, costs will be to the appellant/defendant in this appeal. A. M. SILUNGWE CHIEF JUSTICE M. S. NGULUBE DEPUTY CHIEF JUSTICE b'.'t'.’gardner" SUPREME COURT JUDGE