Attorney General v Mwale (Appeal 79 of 96) [1997] ZMSC 35 (27 March 1997)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 79 OF 1996 HOLDEN AT LUSAKA SCZ/8/64/96 (Civil Jurisdiction) BETWEEN: ATTORNEY-GENERAL APPELLANT AND KAMOYO MW ALE RESPONDENT CORAM: NGULUBE, CJ, MUZYAMBA AND LEWANIKA, JJS On 30th January and 27th March, 1997 For the appellant - Mr. D. K. Kasote, Assistant Senior State Advocate For the respondent - Mr. E. J. Shamwana, Sc, Shamwana and Company JUDGMENT Ngulube, CJ, delivered the judgment of the court. cases referred to: 1. Miyanda -v- the Attorney-General (1985) ZR 185. 2. Attorney-General -v- Mpundu (1984) ZR 6. 3. Zambia Airways Corporation Limited -v- Gershom Mubanga SCZ judgment •No. 5 of 1993. For convenience, we will refer to the respondent as "the plaintiff' and to the appellant as "the defendant" which is what they were at the trial. The plaintiff joined the permanent and pensionable establishment of the Civil Service in 1972 and rose through promotions and redeployments to become the first Commissioner of the Drug Enforcement Commission when it was established under Statutory Instrument number 87 of 1989. The Regulations provided that the plaintiffs employment could only be terminated for cause, namely inability, misbehaviour or breach of the then leadership code. The 1989 Regulations were amended by Statutory Instrument number 65 of 1993 of 14th April, 1993 which, inter alia, introduced termination upon the giving of three months' notice or payment in lieu. The plaintiffs services were terminated under the 1993 amendments on 18th May, 1993 by a letter dated 14th May, 1993 from the President who is the appointing authority for the position under discussion. It was in evidence that the plaintiff was not given any of his pension and terminal benefits and was told allegedly in rather sarcastic terms that he would get none. The plaintiff sued for wrongful termination, claiming that he had an accrued or acquired right to be separated only for cause and asking for compensation or reinstatement. The evidence was that the plaintiff who was not given the necessary clearance only managed to obtain other employment some sixteen months later. The defendant pleaded and submitted that there had been a proper dismissal and no pension and other benefits were payable. The learned trial judge upheld the plaintiffs claim and, following our decision in MIYANDA - v - THE ATTORNEY-GENERAL (I) adjudged that the plaintiff had an accrued or acquired right to lose his employment only for cause and that the termination of 14th May, 1993 was wrongful. Reinstatement was very properly ruled out. The damages awarded to the plaintiff were ordered to be the loss of salary and other emoluments he would have earned up to the age of fifty-five years (being the retiring age) plus his pension and terminal benefits. Mr. Kasote very fairly abandoned an attempt to argue that there had been a perfectly lawful early retirement of the plaintiff at the instance of the employer when he realised that this was at variance with the position of the state in the court below. He sought to concede that the stance at the trial of defending an alleged lawful dismissal for unspecified misbehaviour had misled the trial court; submitting that the State's position now in this court was that this was an early retirement under the relevant law and the General Orders of the Civil Service. He was in some difficulty and agreed that it was unlawful to retire a Civil Servant without paying him a single ngwee. To his credit, Mr. Kasote graciously informed the court that the ground of dispute was not on the issue of liability anymore but on the quantum of damages. Mr. Kasote submitted that the plaintiff should have been treated as having retired early and given his pension and gratuity, which were rightfully his by law, together with any other terminal benefits. It was Mr. Kasote's submission that in the circumstances of this case, he would not oppose an award of damages for mental distress and inconvenience under the principle in ATTORNEY­ GENERAL - v - MPUNDU (2). Mr. Shamwana responded by quite properly in our view conceding that damages for the wrongful termination cannot simply extend to the rest of the plaintiffs working life up to the retirement age. He submitted that his client was clearly entitled to receive his pension benefits and other terminal benefits which had already accrued and became payable to the plaintiff on termination at the instance of the employer. In addition it was Mr. Shamwana's submission that because it was extremely difficult for the plaintiff to obtain other work, damages calculated on the basis of 12 months' earnings and other perks would be quite adequate. The suggested period accords with the award made in ZAMBIA AIRWAYS CORPORATION LIMITED - v - GERS HOM MUBANGA (3) where a very senior employee suffered an unwarranted dismissal in circumstances where, but for various considerations, the termination which was held to be null and void might have resulted in a reinstatement. The case of MIYANDA - v - ATTORNEY-GENERAL(l) on the consequences of a termination in breach of accrued or acquired statutory rights which was cited both below and here applies to this case. We have given careful consideration to the issues and the submissions. Learned Counsel for the defendant took the commendable course of not attempting to press any unarguable attack on the question of liability and confining the appeal to the issue of quantum. Learned Counsel for the plaintiff equally adopted the commendable stance of conceding on the question of the award covering numerous years to retirement. The duty to mitigate which the law imposes on any plaintiff in the position of the respondent to this appeal precludes an award of the kind which was made by the learned trial judge. The assessment below proceeded on a footing which cannot be supported and which produced a result which was wrong in principle and so high that we consider it to have been an erroneous estimate of the damages to which the plaintiff was properly entitled. We set aside the award of earnings up to age fifty-five years. On the evidence and in the circumstances of this case, the plaintiff was clearly entitled to receive his gratuity, pension and terminal benefits already earned in respect of his pensionable service. We affirm the order that these be paid to him. As the learned trial judge found, the termination was wrongful and the employers did not assist when clearance was not forthcoming so that it took a long time to obtain other work. Following the MUBANGA case hereinbefore referred to, we adjudge that the plaintiff should recover as general damages an amount representing the aggregate of twelve months' salary plus the value of any fringe benefits over the same period such as fuel allowance, housing allowance, and so on, if he was in receipt of such perquisites. We also consider that the plaintiff was entitled to an award of MPUNDU damages for the manner of the separation and for being denied even what he had already earned, including loss of the opportunity to purchase the personal-to-holder car on favourable civil service terms. We award a sum of two million Kwacha under this head. Should there be any dispute over the computation of the other awards, such disputes are to be referred to the decision of the High Court. From the date of issue of the writ to the date of the judgment below, the awards we have substituted and those affirmed will carry interest at 20% per annum. Thereafter, the Statutory rate of 6% will apply, in terms of CAP. 89 as well as S.20 CAP. 92. With regard to the question of costs, we note that the notice of appeal and the memorandum sought to contest liability as well. The defendant set out to defend their position that the plaintiff should get nothing. It cannot be argued that the appellant has been entirely successful. As Mr. Shamwana submitted, they have not really won and the opponent did concede to the reduction of the damages. In the circumstances, the appeal succeeds only to the extent that the quantum has been reduced as already indicated and it is only fair that each side bear their own costs. M. M. S. W. Ngulube CHIEF JUSTICE W. M. Muzyamba SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE