David Banda v The Attorney General (APPEAL NO. 233/2020) [2023] ZMCA 312 (23 January 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO . 233/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CORAM: Makungu, Sichinga and S iavwapa JJA On the 25th day of August, 2022 and on t he 23rd day of January, 2023 For the Appellant: Mr. D. B Mupeta of D. B Mupeta and Company For the Respondent: No appearance JUDGMENT MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. Times Newspaper Zambia Limited v. Lee Chisulo ( 1984) Z. R 83 2. Ireen Chinjavata v. The Attorney General (2004) ZR 184 3. Joseph Chintomfwa v. Ndola Lime Company (1999) ZR 172 4. Swarp Spinning Mills PLC v. Sebastian Chileshe and Others (2002) ZR 23 5. Chilanga Cement PLC v. Kasote Singogo SCZ Judgment NO. 13 of 2009 6. Kawimbe v. Attorney General (1974) ZR 244 7. Dennis Chansa v. Barclays Bank Zambia PLC SCZ Appeal No. 111 of 2011 8. Josephat Lupemba v. First Quantum Mining & Operations Limited CAZ Appeal No. 120/ 2017 9. African Banking Corporation v. Bernard Fungamwanga CAZ Appeal No. 148 of 2020 10. Paul Roland Harison v. The Attorney General ( 1993-1994) ZR 68 11. Wilheim Roman Buchman v. The Attorney General (1994) S. J 76 (S. C) Legislation referred to: 1. The Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia. . ◄ 1.0 I. NTRODUCTIO. N 1.1 On 5th May, 2020 D. Mulenga., J of the High Court, Industrial Relations Division delivered a judgment in which the appellant was awarded 36 months·' salaries, at the rate of the current Accounts Assistant in the Ministry of Finance and Economic Development as damages for wrongful dismissal. The appellant escalated the matter to this court as he 1s dissatisfied mainly with the quantum of damages awarded. 2.0 BACKGROUND 2.1 On 17th February., 2017 the appellant who was the complainant in the lower court, commenced an action for wrongful dismissal against the respondent in the Industrial Relations Division of the High Court. He claimed damages for wrongful dismissal, salary arrears from date of dismissal, accrued benefits up to t he date of Judgment, accrued leave days, interest, costs and any other rebef. 2.2 The brief facts, which were not disputed were that; On 5th November 1999, the appellant was appointed as an Accounts Assistant in the restructured Ministry of Finance and -J2- Economic Development and deployed at Ndola Provincial Administration office . 2.3 On 11 th August, 2008 he reported for work only to be served with a verbal notice of forced leave pending investigations by the Permanent Secretary, Mrs. Jenifer Musonda. On 21 st August, 2008, he was formally charged with the offence of obtaining money by false pretences. The charge was predicated on an audit carried out by the Auditor General's Office on the Copperbelt Provincial Administration for the year ending 31 s t December, 2007. It was alleged that he had misappropriated funds amounting to K24,640,000.00 (24 ,640.00) meant for the poverty redu ction programme (PRP). 2.4 The appellant averred that the charge of obtaining money by false pretences was not provided for in the Disciplinary Code and Procedures for Handling Offen ces in the Public Service. That he however, responded to the allegations by exculpatory letter dated 2nd September. 2 .5 On 4:h October, 2 008 the appellant was summoned by the Permanent Secretary to appear before the Ad-hoe committee concerning the same charge. He refused to appear before the -J3- said committee as the Drug Enforcement Commission (DEC) had commenced criminal investigations in the same matter and the Disciplinary Code provided under clause 57 that no other disciplinary proceedings should run concurrently with criminal investigations. 2.6 Before the criminal investigations were concluded, on 3 rd November, 2008 the appellant received a suspension letter from the Permanent Secretary. By letter dated 18th December, 2008 he was dismissed from the civil service with effect from 4 th December, 2008. The letter further read that the half salaries withheld during the period of his suspension would be paid back to him; and that he would be "surcharged for the sum of K24,640,000.00 which he misappropriated," and that monies owed to the government would be recovered from his terminal benefits. 2. 7 Later, he was cleared by DEC and turned into a state witness. After being cleared by DEC, the appellant expected to be reinstated on the basis of clauses 29 and 60 of the Disciplinary Code but he was not, so he lodged his appeal against the dismissal on 19 th January, 2009. -J4- 2. 8 Clause 32 of the Disciplinary Code provides that appeals to the Public Service Commission are to be disposed of within 30 working days. This procedure was not adhered to, as the respondent refused or neglected to respond to his appeal within the stipulated time despite constant reminders in person and in writing. 2. 9 On 20th April, 2016 the appellant's advocates, Messrs Caristo Mukonka Legal Practitioners, wrote to the respondent concerning his appeal. On 18th November, 2016 in reply, the dismissal was upheld. 2.10 The respondent did not file an answer and affidavit in opposition to the said complaint. After, several adjournments on account of the respondent's none appearance, the lower court proceeded to hear the appellant's case. 2.11 At trial, the appellant relied on the affidavit 1n support of notice of complainant and his oral evidence was on the same lines. -JS- 3 .0 DECISION OF THE LOWER COURT 3. 1 As regards the claim for wrongful dismissal, the learned trial judge found that at the time that the Permanent Secretary summoned the appellant to appear before the disciplinary Ad hoe committee for a disciplinary case hearing, he was under going criminal investigations by the DEC anti-money laundering unit. That, the respondent had breached regulation 57 of the Disciplinary Code and Procedures for Handling Offences in the Public Service which makes it mandatory that no disciplinary proceedings should be instituted against an officer upon any ground which 1s subject of criminal proceedings instituted against him. 3.2 The court noted, that DEC had made the appellant a state witness in respect of criminal proceedings based on the same facts for which the respondent dismissed him from employment. 3.3 The trial court further found that the respondent was in breach of regulation 32 (c) of the Disciplinary Code and Procedure which required that appeals lodged at the Service Commission be heard within 30 days, in that, the appellant -J6- appealed to the Service Commission on 19th January, 2009, but the respondent only upheld his dismissal on 8 th November, 2016, 7 years and 10 months from the date of the appeal. The court found the delay to be inordinate. 3.4 Based on the foregoing, the judge was satisfied that the appellant had proved his case on a balance of probabilities and held that he was wrongfully dismissed and that he had consequently suffered damages. 3.5 In awarding the appellant damages for wrongful dismissal, the court took into account the fact that he had worked for 9 years and that since his dismissal he had remained unemployed. The court also took into consideration the manner in which he was dismissed and that finding employment in the sector in which he was employed would be very difficult given the reasons advanced by the respondent for his dismissal; misappropriation of K24, 640,000.00. 3.6 In light of the above, the judge saw it fit to award him 36 months salaries as damages for wrongful dismissal from employment. The salary to be used in computing the damages was ordered to be that of a serving Accounts Assistant. -J7- 3. 7 The judge dismissed the claim for salary arrears from the date of dismissal to the date of judgment as the complainant had not performed any service for the respondent during the said period and therefore such an award would amount to unjust enrichment. 3.8 The appellant was awarded leave days accrued upto the date of dismissal. The award to carry interest at the short term commercial deposit rate as approved by the Bank of Zambia from the date of complaint until full payment. Costs were also awarded to the appellant. 4.0 GROUNDS OF APPEAL 4.1 The appellant has advanced three grounds of appeal framed as follows: 1. The honorable court erred in law and fact in failing to consider the respondent's conduct when awarding damages to the appellant: i. Incautiously, heedlessly and unjustifiably dismissing the appellant whom the DEC's investigations found innocent and later used -JS- him as a state witness in the trial of those found wanting and in full face of the Civil Service Disciplinary Code Rules and procedures. ii. The respondent's office through its counsel displayed embarrassing disloyalty and disrespect to the court by ignoring all notices of hearing until the court was left with no option but to hear the appellant's version and delivered judgment in default so to speak. 2. Though not pleaded or complained of, the court has a discretion in terms of section 85 of the Industrial Relations Court Act, on its own motion, in an ideal case such as this one, to order re instatement of the appellant or retirement in national interest. 3. The appellant has been unemployed for 12 years now since his dismissal, awaiting promised re employment and clearance by a court of law and -J9- 36 months (3 years) salary does not match his loss of employment and prospects of getting a pension. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 The appellant relied on the heads of argument filed on 23rd November, 2020 wherein grounds 1 and 3 were argued together as follows: 5.2 The quantum of damages, which is 36 months salary is too low. Counsel contended, that it did not match the injury of 12 years of unemployment caused by the respondent. 5.3 That the DEC treated the appellant as a state witness and even promised him employment, therefore the respondent was cruel to the appellant. He went on to state that generally, in civil matters where a party has displayed harsh or demeaning conduct towards another, courts have imposed additional damages as exemplary damages. Citing the case of Times Newspaper Limited v. Lee Chisulo, 1 he urged us to find that the award is too low and to interfere with it. He further relied on the case of Ireen Chinjavata v. The Attorney General2 where it was held inter-alia that: -Jl0- "Where there has been inflation, a plaintiff who has been deprived of something must be awarded realistic damages which will afford him a fair recompense for his loss." 5.4 To this end, it was submitted that the 36 months salaries against 144 months of unemployment is not fair compensation. 5.5 On ground 2, counsel referred to rule 55 of the Industrial Relations Court Rules to advance the argument that even though the appellant did not pray for reinstatement, the court could have ordered re-instatement. That, since the lower court did not order re-instatement despite taking note of the difficulty of getting employment, the damages should have been increased. 6.0 OUR DECISION 6.1 We have considered the record of appeal as well as the arguments made on behalf of the appellant. 6.2 We shall deal with grounds 1 and 3 together as they are related. The appellant's main grievance under these two grounds is that the award of 36 months salaries as damages for wrongful -Jll- dismissal is inadequate as the lower court did not consider the respondent's repressive conduct towards him. 6.3 The Supreme Court has in a plethora of cases including Joseph Chintomfwa v. Ndola Lime Company Limited,3 Swarp Spinning Mills PLC v. Sebastian Chileshe and others4 and Chilanga Cement PLC v. Kasote Singongo5 held that the normal measure of damages for unlawful/wrongful dismissal is the notice period at common law but that in deserving cases, the notice period can be exceeded depending on the circumstances of each particular case. 6.4 The circumstances under which courts can exceed the normal measure of damages abound. They include harsh or inhuman treatment causing inconvenience, distress, mental anguish, trauma and grim future job prospects to the ex - employee. 6.5 We shall recount a few precedents below: In the 1999 case of Joseph Chintomfwa v. Ndola Lime Company Limited,3 the brief facts were that an engineering clerk had been coerced into taking early retirement under a clause in the contract which did not even properly apply. The -J12- learned trial judge held that the appellant had waived clause 7.3.3 (c) of his conditions of service. The appellant appealed to the Supreme Court. 6.6 The Supreme Court held that the trial judge had misdirected himself as there was evidence of the appellant's unwillingness to go on early retirement. That, it was the respondent who unjustifiably wanted him to waive clause 7.3.3 (c). 6.7 The Supreme Court therefore substituted the order for damages equal to on<; year's salaries and perquisites which the appellant was awarded by the court below, with an award of 2 years' salaries and perquisites on the ground that the appellant was going to find it extremely difficult to find employment as an engineering clerk. 6.8 In the 2002 case of Swarp Spinning Mills PLC v. Sebastian Chileshe and Others, 4 the brief facts were that the respondents were employed by the appellant as security guards. Being dissatisfied with the levels of pilferage going on within the company despite the presence of the in house security guards, the appellant decided to terminate the services of all its security guards at a meeting called on a Sunday. The -Jl3- respondents launched proceedings for damages for wrongful or unlawful dismissals. The learned trial judge held that the dismissals were wrongful and awarded each one of them damages equivalent to two years salaries and perks, less what had already been paid. The court took into account the scarcity of jobs and the manner in which the dismissals were made. 6.9 On appeal, the Supreme Court upheld the lower court's consideration of the summary fashion 1n which the respondent's employment was terminated at a meeting called on a Sunday, without any notice at all, and in circumstances making it difficult to explain the loss of employment for purposes of obtaining alternative similar work. The court stated that this justified the departure from the normal measure of damages. 6.10 However, the awards of two years earnings were upset as the lower court had erred to simply adopt the quantum of damages in the Joseph Chintomfwa v. Ndola Lime Company Limited3 case when the circumstances did not lend themselves to the drawing of parallels. The court noted the principle that an appellate court should lightly interfere with assessment of -J14- damages except for good cause shown, as discussed in cases such as Kawimbe v. Attorney General. 6 The court stated that categories of work differ and drew the difference between senior managerial jobs and the more modest posts which are relatively more abundant and therefore readily available. 6.11 The Supreme Court went on to determine that the Chintomfwa case involved a senior managerial job while the Sebastian Chileshe case involved a modest post of a security guard. Under the circumstances, the respondents were instead awarded 6 months salaries and perquisites as "Mpundu damages" 1e damages above and normal measure. The normal measure of damages which was already paid was not disturbed. 6.12 In the 2009 case of Chilanga Cement PLC v. Kasote Singogo,5 the brief facts were that the respondent who was employed in the appellant company as a Credit Controller was declared redundant. The respondent claimed that the redundancy emanated from TAP Limited where he had gone to perform his duties and received racist remarks from a Mr. Sirinivasan which irked him. That the employer decided to declare him -JlS- redundant soon after he had reported the matter to his boss and the police. 6.13 The trial court found that the termination of employment was not by reason of redundancy but a constructive dismissal. The appellant was awarded 24 months salaries and perquisites as damages in view of the embarrassment, physical and mental torture he had suffered as a result of the abrupt loss of a job. 6.14 On appeal, the Supreme Court, upheld the said award because of the abrupt loss of the job and the harsh or inhuman manner in which the appellant was treated. 6.15 In the 2011 case of Dennis Chansa v. Barclays Bank Zambia PLC,7 the Supreme Court in upholding an award of 36 months salaries as damages for wrongful dismissal, had this to: "The court in Zambia Airways Corporation Limited v Geshom Mubanga awarded 12 months salaries as damages in 1992. Seven years later, in Chintomfwa v Ndola Lime Supra, we awarded 24 months. The lower court seven years later in the appeal -J16- before us awarded 36 months salaries as damages. The rationale is; as global economies deteriorate, the chances of finding employment even by graduates are dimmer. There should be a progressive upward increase in damages as it is bound to take longer to (i.nd a iob in the current domestic and global economic environment. For what we have said, we cannot fault the lower court for awarding 36 months salaries as damages. The award was not wrong in principle." 6.16 Six years later in 2017, this court dealt with the case of Josephat Lupemba v. First Quantum Mining and Operations Limited,8 where the appellant's employment was terminated just five days after taking up his appointment. We upset an award of 4 months salaries as damages and replaced it with an award of 24 months salaries after taking into account that the appellant was given a contract which he -J17- accepted and nearly a month later he had submitted his silicosis certificate. That the respondent having induced him to resign from his job by offering him a job which he accepted, it would have been unjust to allow the respondent to only pay the appellant 4 months salaries. We found that the termination was abrupt and for this reason the appellant must have experienced shock and trauma and so we held that the case fell under the exceptions to the common law normal measure of damages. 6.17 In the 2020 case of African Banking Corporation v. Bernard Fungamwanga, 9 the brief facts were that: the respondent was employed as a cashier in the appellant bank and rose to the position of team leader for branch operations. It was discovered that there were some shortages in funds meant for replenishing the ATMs. The respondent was charged with gross negligence for failing to ensure that ATM transactions were reconciled and subsequently dismissed from employment. This was despite the appellant having informed management of the unavailability of journals that were needed to complete the ATM reconciliations. -J18- 6.18 The trial court found that the problems were well known to the appellant and the respondent could not be blamed as he had communicated the challenges he had faced and suggested solutions. The trial judge concluded that the dismissal was wrongful and awarded the respondent 36 months gross salary taking into account the difficulties associated with finding jobs at the respondent's level and the strictness of the banking profession. 6.19 We upheld that award, taking into account the respondent's grim prospects of finding a job in the banking sector and being mindful of the constant depreciation of the Zambian currency. 6.20 We echo what we stated in the case of Josephat Lupemba v. First Quantum Mining and Operations Limited8 that: "It is a requirement that the trial Judge gives reasons for awarding a measure of damages, either as the period of notice, when the award is within the common law measure or justification for an award which exceeds the common law measure." -J19- 6.21 In the present case, in deciding to award 36 months salaries as damages for wrongful dismissal, the court below took into consideration that, the appellant had served the respondent for a period of nine (9) years and he had remained unemployed for numerous years after his dismissal. The court also took into account the respondent's senous breach of the Disciplinary Code and Procedures. 6.22 We adopt the reasons given by the lower court in exceeding the normal measure of damages as we observe that the dismissal was unjust. It must have caused the appellant mental distress when he was not reinstated after being cleared by DEC and to wait for over 7 years for a response to his appeal when the appeal ought to have been heard and determined within 30 days after it was made. Moreover, it would be very difficult for him to find a similar job in this economy where there is so much unemployment even for university graduates. We take judicial notice of the high unemployment rate. 6.23 In line with the authority of Dennis Chansa v. Barclays Bank Zambia PLC supra, we are of the firm view that this is an appropriate case for an increase in damages for the following -J20- reasons: firstly, the Zambian economy has deteriorated over the years leading to very high unemployment rates. Secondly, the respondent's actions towards the appellant were indeed oppressive to say the least. Thirdly, the facts of the matter are very different from the cases cited above where awards of 36 months salaries and perquisites were granted for wrongful dismissal in that, in those cases, the appellants were treated by their employers better than the appellant herein was treated by his employer and, fourthly, the unemployment rate was not as high as it is now. 6.24 We do not agree with the appellant that exemplary damages should have been awarded, because a claim for exemplary damages must be specifically pleaded in order to be claimable as per the case of Paul Roland Harison v. The Attorney General. 10 The appellant in this case did not plead exemplary damages and he cannot raise the issue now. We do not agree with counsel for the appellant that the learned trial Judge did not consider the respondent's conduct in the process of awarding damages to the appellant. In fact, he did, and it was -J21- ' that consideration that prompted him to exceed the normal measure of damages. 6 .25 However, he did not take into account the socio-economic changes that have taken place over the years leading to a very high rate of unemployment and therefore ground 3 succeeds .. 6.26 We apply the principle that appellate courts should lightly interfere with assessment of damages except for good cause ( see the case of Kawimbe v. The Attorn,ey General6 as we find good cause to interfere with the award made by the lower court. Consequently, the lower court's award is hereby set aside, instead, we award the appellant 42 months salaries and perquisites, reimbursement of withheld salaries and reimbursement of the surcharge if at all it was effected. We also award the appellant interest at the average short t erm deposit rate from the date of the complaint to the date of the judgment, thereafter at the current bank lending rate until full settlement. 6 .27 In ground 2, the appellant contends that th e lower court should have invoked its inherent jurisdiction to order his re instatement or retirement in the national interes t . We do not -J22- wish to belabor this point as these issues were not pleaded or raised in the court below. We are fortified by the case of Wilheim Roman Buchman v. The Attorney General11 where it was held that: "A matter that is not raised in the court below cannot be raised before a higher court as a ground of appeal." 6.28 We thus find no m erit in ground 2. 7.0 CONCLUSION 7 .1 In sum, for the avoidance of doubt, grounds 1 and 2 fail, while ground 3 succeeds. We enhance the award of 36 months salaries and perquisites to 42 months salaries and perquisites as damages for wrongful dismissal, taking into account the oppressive treatment the appellant was subjected to, the harsh socio-economic situation in this country and the high rate of unemployment. We also order that he be reimbursed the withheld salaries and th e surcharged amount if at all it was effected with interest. 7 .2 The order made by the court below for leave days is upheld. -J23- 7.3 Each party will bear its own costs as this appeal emanates from the Industrial Relations Court and neither party is guilty of misconduct in the proceedings. C. K. MAKUNGU COURT OF APPEAL JUDGE • •••••••• .... D. COUR A,SC LJUDGE .................. J ................... . M. J. SIAVWAPA COURT OF APPEAL JUDGE -J24-