Banda v Medical Council of Zambia and Attorney General (Appeal 116 of 2012) [2016] ZMSC 7 (26 January 2016)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil ~'urisdiction) APPEAL NO. 116/2012 BETWEEN: WILFRED WELUZANI BANDA AND MEDE::AL COUNCIL OF ZAMBIA ATIORNEY GENERAL APPELLANT I ST RESPONDENT 2ND RESPONDENT CORAM: Mwanamwambwa DCJ, Muyovwe and Kaoma, JJS On 14th July, 2015 and 26th January, 2016 For the Appellant: For thE Respondents: Mr. M. L. Sikaulu - Messrs. SLM Legal Practitioners Mrs. M. M. Kawimbe - Chief State Advocate, Attorney General's Chambers JUDGMENT Mwanamwambwa D. C. J., delivered the Judgment of the Court LEGISLATION REFERRED TO: (1) THE MEDICAL AND ALLIED PROFESSIONS ACT, CHAPTER 297 OF THE LAWS OF ZAMBIA CASES REFERRED TO: (1: JONATHAN MUSIALELA NG'ULEKA V FURNITURE HOLDING LIMITED (2008) Z. R. 19 (2) (3) (4) JOSEPH CHITOMFWA V NDOLA LIME COMPANY LIMITED (1999) Z. R. 172 SWARP SPINNING MILLS PLC V SEBASTIAN CHILESHE AND OTHERS (2002) Z. R. 23 ZAMBIA CONSOLIDATED COPPER MINES V JAMES MATALE (1995-1997) Z. R.144 (5) KITWE CITY COUNCIL V WILLIAM NG'UNI (2005) Z. R. 57 J2 (6) (7) (8) CHILANGA CEMENT PLC V KASOTE SIN GOGO (2009) Z. R. 122 JACOB NYONI V ATTORNEY GENERAL (2001) Z. R. 65 KAWIMBE V ATTORNEY GENERAL (1974) Z. R. 244 This is an appeal against the decision of the Industrial Relations Court, to award the appellant a four months' net salary, as damages for unlawful termination of his contract of employment, by the 2nd respondent. The brief facts leading to this appeal are that, the appellant was employed by the 1st respondent as its Registrar. He entered into a three year contract with the 1st respondent on 9th February, 2006, which was due to expire on 30th April, 2009. However, contract was prematurely that terminated. By a letter dated 1st March, 2007, Ms. Angela Chifire, as Minister of Health at the time, informed the appellant that she had terminated the appellant's contract with immediate effect. The Minister was purportedly actir.g in accordance with Clause 17 of the appellant's contract of service as well as the powers vested in her under Cap 297 of the Laws of Zambia. as Chairperson of the Medical Council of Zambia, following the end of tenure of office for the 11th Council. She further informed the appellant that he would be paid a one month's salary in lieu of notice, together with his full benefits. Fcllowing the decision to terminate the appellant's contract of employoent, he filed a complaint against followingrelief: the respondents, seeking the (1) A sum of K1,320 366 028.00, being gratuity and terminal benefits due to the complainant in respect of his contract of employment with the 1st respondent. (2) Interest (3) Any other relief which the court may deem fit. J3 During the proceedings in the court below, the appellant informed the court that the I st respondent had fulfilled its obligations to him. As such, he no longer had any claim against it. To this effect, a consent order was execu:ed for the discontinuance of the appellant's claim against the lSt respo::1dent. What remained to be determined by the Industrial Relations Court, was the appellant's termination of contract. claim against the 2nd respondent, for unlawful Upon hearing the parties, the Industrial Relations Court held that the termination of the appellant's contract of employment by the Minister of Health was unlawful. This was because, the contract of employment was made tetween the appellant and the I st respondent. As such, the appellant was an employee of the 1st respondent, and not an employee of the Ministry of Heal:h. Therefore, the power to appoint and remove the appellant from office vested in the 1st responden t. The trial court was of the view that there was no privity of contract between the Minister of Health and the appellant because the Minister of Health was not party to that contract of employment. It was :m this basis that the Industrial Relations Court held that the termination of the appellant's contract of employment by the Minister of Health was unlawful. Having so found, the trial court considered the cases of Jonathan Musialela Ng'uleka v Furniture Holding LimitedllJ, and Chitomfwa v Ndola Lime Company Limited(2J, and decided to award the appellant damages. In this regard, it awarded him a four months' net salary, with interest, because he had already been paid his dues by the 1st responde::1t, The appellant was not satisfied with this award, he appealed to this Court, advancing one ground of appeal: That the Honourable Court erred in law and in fact by only awarding the appellant four months' salary on account of the appellant having been paid his dues by the Medical Council of Zambia. J4 Based on this ground of appeal, the parties filed written heads of argument which they relied on. Submitting on behalf of the appellant, Mr. Sikaulu argued that the trial court erred in only awarding four months' salary, against the established legal principles on the award of damages. He submitted that the trial .~ourt should have considered the circumstances and the facts surrounding the termination of the appellant's contract of employment, such as the length of the notice of termination, future job prospects, and the menta. upset and distress suffered by the appellant. Counsel argued that the COl:.rtbelow should have considered the reasoning in the case of Swarp Spinning Mills PIc v Chileshe and Others(31, in which it was stated that when c.ssessing damages, the court should consider the circumstances and justiceJf each case. And relying on that case, Mr. Sikaulu submitted that the court should depart from the general rule which precludes the award of non-pecuniary damages like exemplary damages or damages for injured feelings. if the termination of employment was done in a traumatic fashion, which causes undue distress or mental suffering to the employee. It was submitted that in the present case, the contract of employment with the 1st respondent provided for three month's notice of termination by st the 1 respondent, but the Minister of Health terminated the contract upon giving one month's salary in lieu of notice. He argued that the appellant was not given due notice and as such the termination was unlawful, improper and tral:.matising. Counsel cited the case of Chitomfwa v Ndola Lime Company Limited Ltd(21, in which the appellant was awarded two years' salary a::'ter considering that the appellant would not find alternative employment. Mr. Sikaulu submitted that even in this case, the appellant has very slim chances of finding another job considering his age and the position he held whilst working for the 1st respondent. J5 It was counsel's further submission that the court below should not have rigidly used the payment of the appellant's dues by the 1st respondent, as a yardstick for awarding damages, because he was entitled to them. According to Mr. Sikaulu, the guiding principles in considering the damages to be awarded should have been the two more years of the appellant's contr".ct period of service which remained unserved, taking into consideration his age, the previous record of service and the sudden burden of joblessness few months into the contract. This, he argued, was similar in principle with what was held in the case of Zambia Privatisation Agency v James Matalel4J the unserved period of the contract may be paid as that , damages in addition to the benefits that were paid to the appellant. Mr. Sikaulu also relied on the case of Jonathan Musialela Ng'uleka v Furniture Holding Limitedll ), where the appellant was awarded 24 months' salary includi:lg all allowances and other perks he was entitled to at the time of termination. To this effect, Mr. Sikaulu urged us to interfere with the amount of compensation that was awarded to the appellant in the court below, by awarding a much more favourable portion of damages. He urged us to aLow this appeal with costs. In opposing this appeal, Mrs. Kawimbe, on behalf of the respondents, submitted that the reasoning behind the trial court's decision was that the appellant had already been paid his dues i.e. gratuity and terminal benefits, by the Medical Council of Zambia. She supported the decision of the lower court because the appellant had already been fully compensated by his employer for the entire duration of the contract, and what was awarded to him was in addition to what he was already enjoying under his contract. In counsel's view, that was sufficient compensation for unlawful termination of the employment contract. In addition, Mrs. Kawimbe pointed out that the appellan: was already well over the retirement age of 55 years, at the time he was engaged as Registrar at the 1st respondent. J6 It was counsel's further submission that even if the appellant's contract had been lawfully terminated, he was only entitled to three months' notice or in the alternative, the payment of three months' salary in lieu of notice. In this regard, she insisted that by the award of four months' salary, the appellant was duly compensated by being paid for one month, over and beyond what he was contractually entitled to. She further relied on the case of Kitwe City Council v William Ng'uni(5), in submitting that it was unlaw:ul to award a salary or pension benefits, for a period not worked for because such an award had not been earned and could properly be termed as UEjUSt enrichment. Mrs. Kawimbe stated that she had read the authorities which the appellant had cited and she was alive to the factors that 2Te considered when dealing with compensation for unlawful termination of contract. In this regard, she submitted that each case must be determined on its own merits. It was her argument that the factors which had been specified by the appellant have no role to play in this appeal. She conduced by submitting that this was not a proper case in which findings of fact cO".lld be reversed. Her prayer was that we dismiss this appeal with costs. We have examined the submissions and the authorities cited by counsel for the parties. In our view, this appeal presents a narrow issue for determination. We say this because there is no dispute that the appellant's contract of employment was unlawfully terminated by the Minister of Health. And as a result, the Industrial Relations Court held the opinion that the appellan: was entitled to damages. In the process of assessing the damages to award the appellant, the trial court had regard to the fact that the appellant was already paid his gratuity and terminal benefits by the 1st It, therefore, considered it fit to grant the appellant four months respondent. net salary with interest, as damages for unlawful termination of employment. It can be gleaned from the ground of appeal and the supporting arguments, that the appellant brought this appeal simply because he was not satisfied with this award. He is contesting the quantum awarded. He now wants more damages. J7 For this reason, we felt the need to consider the law on the measure of damages in cases of unlawful termination of employment, in order for us to fully determine whether the award by the lower court was adequate. The general rule is that the normal measure of damages in cases like this one, is usually computed based on the notice period required under a contract, or the national reasonable notice, in cases where the contract is silent on the notice period. However,this general rule has some exceptions. Some of those except::ms to the normal measure of damages have been set out in the case of Swarp Spinning Mills Limited v Sebastian Chileshe and Others(3), which '""as cited by Mr. Sikaulu. In that case, we said that the court can only depart from the normal measure of damages where the circumstances and the ju~:ice of th:: case so demand. In this regard, the court will usually conside:- situations where the termination is inflicted in a traumatic fashion which causes undue distress or mental suffering. Loss of employment opportu:lities is equally considered. For instance, in the case of Joseph Chitomfwa v Ndola Lime Company Limited(2i, a 24 months salary was awarded to compensate for loss of employment opportunities. In the case of Chilanga Cement PIc v Kasote Singogol61, we held that enhanced damages are meant to encompass the inconvenience and any distress suffered by the employe::as a result of the loss of employment. In this case before us, it is clear that the appellant's desire was for the court be::Jwto depart from the normal measure of damages which it did not do. Through this appeal, he wants us to so depart. To this effect, he has advanced a number of reasons. Mr. Sikaulu on his behalf argued that the trial cou:i should have considered factors like the length of the notice of termination which was given in this case, the appellant's future job prospect~, as well as, the mental upset and distress that the appellant J8 suffered. However, a review of the evidence clearly shows that there were only two valid reasons which justified the award of damages to the appellant in this case. The first being that his contract was not terminated by his employer, the 1st respondent, but it was unlawfully terminated by the Minis:er of Health, who did not have power to do so. And the second being that :"1ewas not given due notice in accordance with his contract of employment, which provided for a three months notice of termination, but instea:i the Minister of Health terminated the contract upon giving a one month salary in lieu of notice. In our view, these were the reasons which warranted an award of damages. From the evidence, there were no other justifi&.blereasons. Moreover, this was a case in which his employer, the 1st respondent had already paid the appellant his dues. In our considered view, an aW2Tdof four months net salary as damages, was an adequate remedy in this ca,e. We have already shown above, that there are certain cases where the circumstances and the justice of the case demand a departure from the normal measure of damages. We do not think that this is one such case. Much as we agree with some of the principles of law cited by Mr. Sikaulu, we do not -:hink they apply to this case. We do not think that, on the evidence on reco::-d,the termination of the appellant's employment was inflicted in a traumatic fashion, which could have caused undue distress or mental suffering. There is also no substance in the argument that the appellant has very sliD chances of finding another job considering his age, because age is a natur2. I consequence of life. And we have noted that the appellant was well over the retirement age. In effect, he was in the twilight of his career. In our view, this was something that could not justify any departure from the normal neasure of damages. Similarly, we are disinclined to agree with Mr. Sikaulu's argument that the trial :;ourt should have considered the appellant's remaining period of J9 servic~. We say this because, authorities show that in cases of this nature, the award of damages is rarely computed on the basis of the remaining period of service. This is what we said in the case of Jacob Nyoni v Attorney Generall7J, in which we held that: "In a case of wrongful termination, the award of damages is rarely computed on the basis of remaining period of service. Damages awarded range from the notice period required under a contract to the equivalent of two years." In addition, it is important to note that an appellate court rarely interferes with a finding of a trial court when it comes to the amount of damages, merely because it thinks that if it had tried the matter in the first instance, it would have awarded a different sum. There are limited circumstances when we can interfere. In the case of Kawimbe v Attorney Genera1l8J, we held that: "An appellate court should not interfere with the finding of a trial court as to the amount of damages "merely because they think that if they had tried the case in the first instance they would have given a lesser sum" (per Greer, LJ, in Flint v Lovell All, at page 360). Before this court will interfere it must be shown that the trial court has applied a wrong principle or has misapprehended the facts or that the award was so high or so low as to be utterly unreasonable or, in the words of Greet, LJ., in Flint v Lovell [2] 'an entirely erroneous estimate of the damage to which the plaintiff is entitled'." In the present case, we do not think that the trial court misapprehended the facts or that it applied a wrong principle. We equally do not think that the award of four months' net salary as damages for unlawful terminati.:m of employment, was so high or so low as to be utterly JlO unreasonable or to be an entirely erroneous estimate of the damages to which the plaintiff is entitled. In fact, we are satisfied that the appellant was adequately compensated by the damages which were awarded to him, in addition to the dues which were paid by his employer. We must add that considering the evidence on record, we think that the circumstances and the justice of this particular case did not demand any departure from the normal measure of damages. We fully support the award by the trial court. We find no merit in the sole ground of appeal and it accordingly fails. For the foregoing reasons, this appeal is dismissed for want of merit. The pa:ties shall bear their respective costs. .............................. E. N. C. MUYOVWE SUPREME COURT JUDGE = ~~~ .. C ~ R. M. C. KAOMA SUPREME COURT JUDGE