ZCCM Ltd v Suya (Appeal 102 of 1997) [1999] ZMSC 58 (4 March 1999)

• IN THE SUPREME COURT OF ZAMBIA (cid:9) APPEAL NO. 102/97 HOLDEN AT NDCLA (CIVIL JURISDICTION) ZCCM LIMITED AND MUKUNDA SUYA CCRAM: HWEUPE DCJ., CHAILA AND CETERA JJS , (cid:9) HELD ON THE 411: JUNE, 1998 AND 4TH MARCH, 1999 For the AppPllant - Mr. Chamutangi, Legal OffirPr For the Respondent - NO Appearance JUDGMENT HWEUPE UCJ., DELIVERED THE JUDGMENT OF THE COURT. This is an appeal against the decision of the District Registrar at Kitwe awarding the Respondent a total amount of K5,710,555.68. The facts of this case are to effect that on the 23rd of August, 1993 the Respondent instituted legal proceedings against the Appellant by way of a Writ of Summons. On 6th JUne, 1996 his Lordship the learned Judge CHITUNDU found in favour of the Respondent and proceeded to award to him damages for breach of contract and special damages claimed under paragraph (c) of the Writ of Sunnons. He also ordered that assessment of damages should be done by the District REgistrar. /2 - J2 - Both parties filed affidavits for and against. The District Registrar considered both affidavits. It was not denied that the Respondent was employed on the pay scale of UGI. He was summarily dismissed. In their submissions the Respondent relied on the case of MWANZA VS. NATIONAL TRANSPORT CV ZAMBIA AND THE racy OF ZAMBIA NATIONAL BRDADCASTING CORPORATION VS PENIAS TEMPO AND OTHERS which cases established the principles to be applied when assessing damages in cases such as the present one. They also referred to the case of comma HAULAGE LIMITED VS KANAYOID. They cited the case of Bridles vs Smith Limited. The District Registrar having considered affidavits by both parties, the authorities cited, proposed to start with the claim for damages for wrongful dismissal He said that according to the affidavit of the Respondent at the time of his dismissal he was getting 1(61,403.62 per month. He further said that the Respondent stated in paragraph 4 of the Affidavit that at the time of the purported summary dismissal he was entitled to three months' notice or three months' salary in lieu of notice. THe District Registrar after considering the evidence on this claim awarded the Respondent K61,403.62 as damages for wrongful dismissal. He then went to consider the claim for retrechment benefits. He awarded the Respondent on this head 1(1,903,513.10 as special damages. As regards the claim for loss of opportunity to purchase house goods, the District Registrar refused to award him anything as the decision to sell household goods was made after the Respondent was dismissed However, the Respondent was awarded 1(3 million in respect of loss of use of lounge suite, dining table with six chairs, the dressing table, single beds and mattresses, chest of drawers, side boards, stool, cooker and fridge. In addition to damages for wrongful dismissal, retrenchment benefits and damages for loss of opportunity to purchase household goods, the Respondent also claimed the following benefits:- 1 x 50kg bag of mealie meal per month; market supplement allowance of 1(9,210.54 per month; education allowance of K20,000.00 per term; and repatriation allowance of 1(500,000.00 The Plaintiff's evidence in relation to these benefits was that as part of. his conditions of service, he was entitled to the items. On the other hand the Appellant exhibited a copy of conditions of service to the affidavit in opposition indicating that the Respondent was only entitled to K200,000.00. The District Registrar awarded the Respondent 1(25,500.00 in respect of 1 x 50kg bag of mealie meal, 1(9,210,00 in respect of market supplement allowance, 1(20,000.00 education allowance, 1(200,000.00 repatriation allowance. He then turned to claim for general damages for breach of contract. Under this head the Respondent claimed 1(5 million. He stated that after he was summarily dismissed, he stayed without work for a year. He further stated that during this period he did some piece work at Londola Transport in Lusaka and later at ZAMOX Limited in Ndola. The District Registrar then went to consider the case of ZAMBIA AIRWAYS VS. GERSHON S. H. MUBANGA where the Supreme Court held the inter alia that it was the duty of wrongly dismissed employee to mitigate his loss. He said although in the instant case the Plaintiff had not disclosed any sums actually earned by him at LOndola Transport and ZAMOX Limited the District Registrar observed that it was not sufficient for the Respondent to simply inform the rsurt that he was engaged in some work since his dismissal. He said in the case of ZAMBIA AIRWAYS CCRPORATION VS. MUBANGA, the Supreme Court held that in the absence of evidence of mitigation of the loss sustained by the Respondent, the Court must do the best to award the Plaintiff a recompense. The Supreme Court rated salary to be for compensation. In the instance case there was evidence of mitingation of loss by the Respon -dent and he accordingly awarded him 8 months salary as general damages for /4 J4 breach of contract instead of 12 months proposed by the Suprtiwc Court in the case cited above. The Respondent was therefore awarded K491,288.96 as general damages. The Appellant, ZCCM now appeal against such awards. The Appellant's lawyer Mr. CHAMUTANGI in the absence of S. S. NDHLOVU lawyer for the Respondent relied on his written submissions. He filed only two grounds: The first ground was that the District Registrar erred in law in awarding damages as he did is aganist the principles governing the measure of damages; ground two: that the District Registrar erred in law in awarding damages as he did in the circumstances of this case and ignoring the evidence of the Appellant by awarding damages in arears where the claim was dismissed. Expanding on that he said that the judgment by Hon. Justice J M C CHITUNDU dated 6th JUne, 1996 restricted the award of damages to endorsement (b) and (c) on the writ of summons and yet the District Registrar included (a) as endorsed on the writ of summons. He said the endorsement on the writ of summons prayed for the following:- declaration that the dismissal was null and void; damges for breach of contract for failure to pay November, 1992 salary in time; special damages for failure to pay November 1992 salry; damages for malicious falsehood; interest at 100% per annum from 12th April, 1993 to date of payment. He said the Court properly refused to grant the claim in (a) and on the evidence the Court refused the claims in (d) and (e). The employment was not permanent but terminable by 1 month's notice. The Respondent was not eligible for repatriation allowance because he had hardly worked for 10 years. The decision by the Appellant to sell household groaa was made in July, about four months after the dismissal of the Respondent. He said the District Registrar appears to have transplanted the Respondent's affidavit into his - judgment without considering or giving reasons for rejecting the affidavit of the Appellant. He submitted that had it not been for the restrictions imposed by the judgment dated 6th June, 1996, the Respondent would have been entitled to an award of damages equivalent to the notice period. Expanding on ground two he said the District Registrar erred in awarding damages as he did in the circumstances of this case and ignoring the evidence of the Appellant by awarding damages in areas where the claim was dismissed. He said the Judgment of the Court dated 6th June, 1996 was very clear. The Court restricted damages to be awarded only in respect of (b) and (c) as endorsed on the writ of summons and (b) and (c) are claims for damages in respect of delay of awarding the November, 1992 salary. Mr. CHAMUTANCT argued that the Court did not include damages for wrohgful dismissal as there is no such claim on the summons. It was therefore improper for the learned District Registrar to include matter which were excluded by the Judgment of the Court. In midition, the learned District Registrar erred in stating that the payment of retrenchment benefits was not disputed by the Appellant. The Appellant listed what was supposed to be due to the Respon- dent. He argued that the retrenchment package was only paid in terms of 5.15(0) of the Employment Act in a redundancy situation and not to a dismissed employee. He said if the District Registrar restricted his assessment to (b) and (c) as endorsed on the writ of summons, this would have been a case of special damages which would have required proof of loss. The Respondent did not prove anything. He therefore submitted that the learned District Registrar erred in assessing damages the way he did. The Respondent responded as follows:- Ground one ,he said in the case of NYAMBE LYONS vs THE COUNCIL OF THE UNIVERSITY, SCZ JUDGMENT NO. 6 OF 1995 and he quotes. "The Supreme Court said that claim should be set up in the statement of claim and that it is immaterial that claims are put in the writ. The Court conluded that if a relief 6/ J6 (cid:9) - endorsed in the writ is not mentioned in the statement of claim it will be deemed to have been adandoned. On page 35 of the record of appears Plaintiff's statement of claim. The only heads under which relief is claimed are: declaration that summary dismissal was null and void; general damages for breach of contract; and interest and costs. On the basis of the Supreme Court authority cited above everything else in the writ which is not repeated in the statement of claim should be deemed to have been abandoned. This being the case, the learned trial Judge should be deemed to have delivered his judgment on the basis of what had been pleaded. Further or in the alternative, the Appellant's head of argument for ground 1 is misconceived for the reason that persual of the Memorandum of Appeal shows that no ground of appeal exists which could be supported by the said argument. It would arin-nr however that the head of argument in question has been advanced in relation to issues raised in the Notice of Appeal. To this he would argue that in the same way that the statement of claim supercedes the Notice of Appeal. Consequently anything which is contained in the Notice of Appeal but not repeated in the Memorandum of Appeal is deemed to have been abandoned. It is submitted therefore that the case as pleaded does not restrict the damages claim for breach of contract. On the argument that the learned District Registrar awarded damages against principles governing award of damages the Respondent would argue as follows:- (1) The Digest, Annoted British, Connonwealth and European Cases 1994 Vol. 17 (2) The learned author at page 249 said that the purpose of damages is to put the party whose rights have /7 • (cid:9) - J7 - been violated in the same position so far as money can do so as if his rights had been observed. On the same page in paragraph 1272 he says:- 'This purpose if relentlessly pursued would provide him with a complete indemnity for all loss de facto resulting from a particular breach however improbable, however unpredictable'. R. VS SECRETARY OF STATE OF EMPLOYMENT (1993)1 ALL E. R. 1022. In this case the Court of appeal of England said that compensation for unfair dismieeal, which is the compensation payable by the employer for the unfair premature termination of the contract of employment, should include any other consideration whether in cash or in kind which the worker receives, directly or indirectly in respect of his employment. BARBER VS GUARDIAN ROYAL =CHANGE ASSURANCE GROUP (1990)2 ALL. E. R. 660. In this case the Court of Justice of European Communities said that any other payment to which an employee would have been entitled if he had not been prematurely terminated is payable to him as part of the compensation. The Court mentioned redundancy payment as one of the payment which should be paid". From the aforesaid, it cannot be said that the learned District Registrar erred in principle. The authorities cited above indicate that all the heads under which the learned District Registrar awarded damages were legitimate head% covered by compensation payable for breach of contract, in particular rendundancy or retrenchment package is payment to which all OCCM Limited employees are entitled if their employmnet is prematurely terminated for reasons other than disciplinary reasons. We have carefully considered the facts of the case and authorities cited by both parties. We are of the opinion that the awrds to the Respondent were not in accordance with the findings of the learned trial judge. The Judge awarded him damages for breach of contract by being wrongly dismissed as contained in the Writ of Summons in paragraph (b) and (c) only. We are upholding the assessment based on (b) and (c). We confirm the award for eight (8) months salary for general damages for breach of contract amounting to K491,228.96 and strike out the other heads. The appeal is allowed to the /8 J8 extent we have indicated above. We have considered the question of costs and we feel this is a case each party must hear its own costs and we so order. BWEUPE B. K. reeurr CHIEF JUSTICE CBAILA M. S. SUPREME CCURT JUDGE CHIRWA D. K. SUPREME COURT JUDGE