Zambia Telecommunication Company Ltd v Mutambo (Appeal 52 of 2001) [2002] ZMSC 155 (5 March 2002)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 52/2001 HOLDEN AT NDOLA/LUSAKA, (Civil Jurisdiction) ZAMBIA TELECOMMUNICATIONS CO., LTD., APPELLANT AND DANIEL MUTAMBO RESPONDENT Coram: Ngulube, C. J., Sakala, J. S., Mambilima, Ag. J. S., 4th December, 2001 and 5th March, 2002. For the Appellant: For the Respondent: Mr. W. Mvvale of Mwale & Musonda Associates. Mr. T. T. Shamakamba, Legal Counsel. _____________________ JUDGMENT_____________________ Sakala, J. S., delivered the Judgment of the Court. This is an appeal against a Judgment of the High Court dismissing the Appellant’s claim for the sum of KI7, 779,276.82 being money owed by the Respondent after being dismissed from employment. The appeal is also against the Judgment entered in favour of the Respondent on the counter-claim. The facts of the case were that the Appellant sponsored the Respondent to the United Kingdom first for a Degree Course of three years. After completing his first Degree Course in 1991, the Respondent applied to do a Masters Degree. He : J2 : was then granted paid study leave. After completing the Masters Degree, he applied to do a Doctorate. The Appellant gave him an extension of 18 months at his own cost. The Respondent’s period of study was from 1988 to 1997. He was supposed to return to Zambia and report for work, on 1st August, 1997. There was evidence that the Appellant allowed the Respondent to pursue his studies up to 3Tl July, 1997 when the Doctorate Degree Programme was anticipated to come to an end. However, the Doctorate Programme was extended, thus, the Respondent did not return to commence work on 1st August, 1997. There was also evidence that the Appellant knew about the extension of the Programme through correspondence to which they did not respond. But on 20th October, 1997 the Appellant terminated the Respondent’s services with immediate effect on ground that the Respondent had failed to return back to Zambia on 31st July, 1997 when his paid study leave had expired. The Appellant commenced an action by a Specially Endorsed Writ claiming the total sum of money spent by the Appellant on the Respondent’s studies. The Respondent counter-claimed that due to the unlawful termination of his : J3 : employment and eventual withdrawal of his sponsorship, he suffered financially, mentally and physically. He prayed that an award of damages be assessed. The learned trial Judge considered the evidence and identified the issue for consideration to be whether the Appellant acted reasonably and lawfully in terminating the employment of the Respondent. The trial court thereafter looked at the whole scenario in which the Appellant assisted the Respondent to acquire the first and second Degrees and the PHD. In the view of the court, one expected that the Appellant would have allowed the Respondent to extend his study period for the requested duration of two months. The court accepted the Respondent’s contention that the termination was frustrating after having been allowed to go that far in his studies. The court noted that the Appellant never responded to the Respondent’s request for extension of time and that the Respondent was never warned of the impending termination. The court found no merit in the Appellant’s claim pointing out that the Respondent did not deserve the termination of his employment which resulted in unnecessary anguish in a foreign country. The Appellant’s claim was dismissed with costs. The Respondent was awarded damages on the counter claim. : J4 : On behalf of the Appellant, Mr. Shamakamba filed written heads of argument based on two grounds namely; that the court below was wrong in law and fact when it held that there was no merit in the Appellant’s claim and that the court erred in law and fact when it awarded the Respondent damages on the counter claim. We heard submissions on the first ground that the Appellant was on firm ground in law and fact to have terminated the Respondent’s services as the Respondent had absented himself from work for a number of days. According to counsel for the Appellant, the permission granted to the Respondent to do his second and third degrees was on condition that his study leave was to end in July, 1997. His services were terminated on 20lh October, 1997 due to the fact that he failed to return to resume duties. But Counsel conceded in his submissions that the Respondent made a request for extension of time up to October, 1997. We heard arguments on the second ground that the Respondent should not have been awarded damages on the counter claim because he breached the conditions of the study leave. : J5 : On behalf of the Respondent, Mr. Mwale also relied on written heads of argument. He submitted that on the evidence on record, there was no basis upon which the trial court can be faulted. He contended that on the evidence on record, the Appellant voluntarily sponsored the Respondent and the Respondent never breached any of the sponsorship terms and whatever expenditure was spent on the Respondent was lawfully done. On the counter claim, counsel submitted that the Appellant’s witness in court supported by the Respondent himself was that the Respondent was permitted to be on study leave from 1988 up to 31st July, 1997. He also pointed out that there was evidence from the witness for the Appellant and the Respondent himself that the Respondent had requested for an extension of his absence from work after 31st July, 1997, Counsel submitted that it is trite law that before an employee’s services are terminated, he must be given a fair opportunity to be heard. Counsel also submitted that in the present case, the Respondent was not warned of the impending harsh disciplinary action contending that the Appellant’s decision to terminate the Respondent’s employment was arbitrary, high handed and unjustified. Counsel concluded that the learned trial judge was : J6 : on firm ground in upholding the Respondent’s counter claim. He urged the court to dismiss the entire appeal. We have examined the facts on record and the Judgment of the trial court. We are satisfied that the whole stay of study of the Respondent in the United Kingdom from 1988 to 1997 had the blessings of the Appellant. We accept on the evidence on record that the Respondent had applied for an extension of his study period to enable him to defend the Doctorate thesis. The response by the Appellant to the Respondent’s request for extension of his study period was a letter of termination of employment without giving the Respondent an opportunity to be heard. We find on the facts that the termination was harsh. In our view, while the Appellant educated the Respondent at great cost, by dismissing him, they lost out. But in the circumstances of this case, they cannot be entitled to a refund of the cost spent on his education. The appeal against the dismissal of the claim is dismissed. On the counter-claim, we take note that despite the harshness of the dismissal, the Respondent benefited greatly at the cost of the Appellant. In the circumstances, we find that there was no justification in awarding the Respondent : .17 : damages on the counter-claim. The appeal against the award of damages on the counter-claim is allowed. On account of the outcome of this case, whereby the Appellant has lost on the main claim and succeeded on the counter-claim, we make no order as to costs. M. M. S. W. Ngulube CHIEF JUSTICE. E. L. Sakala, SUPREME COURT JUDGE. I. C. Mambilima, SUPREME COURT JUDGE.