Zambia National Commercial Bank Ltd v Phiri (SCZ Appeal 101 of 1998) [1999] ZMSC 57 (27 April 1999)

IN THE SUPREME COURT OF ZAMBIA (cid:9) SCZ APPEAL No.101 OF 1998 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEE N: ZAMBIA NATIONAL COMMERCIAL BANK LIMITED (cid:9) AND RAPHAEL PHIRI (cid:9) APPELLANT RESPONDENT Coram: Sakala, Chlrwa and Muzyamba, JJS For the Appellant: B. S. Miaze, (cid:9) Lisimba and Company For the Respondent: S. S. Phiri, (cid:9) S. S. Phiri and Company 30th March and 27th April 1999 JUDGMENT Itayamba, J. S. delivered the judgment of the court. AUTHORITIES REFERRED TO: ZAMBIA NATIONAL BROADCASTING CORP. V PENIAS TEM80 AND OTHERS 1995/97 Z. R. 68 ACT No.30 OF 1997 JAMES MATALE V ZAMBIA CONSOLIDATED COPPER MINES LTD 1995/97 Z. R. 144 This is an appeal from a decision of the Industrial Relations Court deeming the respondent to have been retired early with full benefits. The facts of this case are that at the time the respondent was summarily dismissed on 24th January 1996 he was working for the appellant as acting Senior Operations Officer. (cid:9) Under the conditions of service applicable to him at the time he was entitled to medical treatment at the appellant's expense. This facility extended to his wife and children. In June, July and September 1995 he was treated by a Clinical Officer at Home Care Clinic in Lusaka. He paid cash and obtained some receipts which were produced in evidence. In all he paid 1(527,000. He later submitted a claim to the appellant for a refund. The appellant became suspicious and instituted some investigations. At the conclusion of those investigations the respondent was served with a disciplinary charge of making up a claim and asked to exculpate himself. He did this but his explanation was not accepted and on 24th January 1996 he was summarily dismissed. Before then, on 1st September 1994 the respondent applied for early retirement, citing the appellant's circular No.1/94 dated 31st August 1994. The appellant did not respond. Following his dismissal the respondent filed a complaint in the Industrial Relations Court for a declaration that his dismissal was null and void and for reinstatement. He called the Clinical Officer, Mr. Kulula as a witness to prove that the receipts he obtained were genuine and that he treated him. Mr. Kulula affirmed the respondent's evidence. The court believed him and found as a fact that the receipts were genuine. The appellant appealed and filed 7 grounds of appeal, the 7th being In the alternative. The first 6 grounds related to findings of fact and when we drew the attention of Counsel for the appellant to Section 97 of the Industrial and Labour Relations Act, Cap 269, which provides that no appeal lies against findings of fact, the learned Counsel abandoned the 6 grounds and argued ground 7 which reads: "7 The Court below erred in ordering retirement with full benefits effective from the date of purported dismissal when three months notice pay would have been appropriate in the circumstances of this case." He argued that the award of damages was excessive and should be reduced to either three months salary, which was the notice period required to terminate the respondent's employment or 12 months salary in line with this court's decision in Penias Tembo case (1). In reply Mr. Phiri argued that the award was proper because, unlike in Penias Tembo case (1) where the complaint was filed under Section 108 of the 1973 Industrial and Labour Relations Act wnich provided only for reinstatement and damages or compensation, the complaint in this case was brought under Section 85 as amended by Section 70 of Act No.30 of 1997 which empowered the Court to award damages as it did and more so that the respondent had applied for early retirement but the appellant never responded. We have considered the arguments by both Counsel. In Penias Tembo case (1) the respondents brought a complaint under Section 108 alleging that they were discriminated against on the ground of their political affiliation with ONIP, the loosing party in the 1991 Presidential and Parliamentary General Elections. The trial court upheld the complaint and ordered that the respondents be reinstated and also awarded them damages. On appeal to this court the order of reinstatement was set aside and the award of damages enhanced from 3 months salary to 12 months salary for each respondent. In the instant case however, the complaint was brought under Section 85. This Section has since been amended by Section 70 of Act No.30 of 1997 (2) by the insertion of a new Section 85A. This Section provides: : .13 : 85A. Where the Court finds that the complaint or application presented to it is justified and reasonable, the Court shall grant such remedy as it considers just and equitable and may - award the complainant or applicant damages or compensation for loss of employment; make an order for reinstatement, re-employ- ment or re-engagement; deem the complainant or applicant as retired, retrenched or redundant; or make any other order or award as the court may consider fit in the circumstances of the case.' The Act was assented to on 18th December 1997, two days after the Judgment was delivered and therefore, contrary to what Mr. Phiri said, the Act does This not apply to this case. (cid:9) notwithstanding, we said in !fatale case (3) that under Section 85 the court Nor did the court below apply it. (cid:9) is required to do substantial justice and in the circumstances of this case we cannot say that the award was in any way wrong or excessive because the respondent had worked for the appellant for 24 years and had applied for early retirement in terms of the appellant's circular but the appellant did not respond. It was therefore only fair that the court should deem him to have been retired early so that he did not loose out. To this end the court administered substantial justice. We would therefore dismiss the appeal with costs to the respondent to be taxed in default of agreement. E. L. SAKALA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE