Zambia National Building Society v Mwandenga (Appeal 32 of 2001) [2002] ZMSC 154 (17 May 2002)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 32 OF 2001 HOLDEN AT LUSAKA [CIVIL JURISDICTION] BETWEEN: ZAMBIA NATIONAL BUILDING SOCIETY - APPELLANT AND MUDFORD ZACHARIAH MWANDENGA - RESPONDENT Coram: Lewanika DO, Mambilima JS, and Chitengi JS on 2nd May, 2002 and 17th May, 2002. For the Apellant : Mr. C. Muneku, of Charles and Charles Associates. For the Respondent: Mr. M. L. Mukande, of M. L. Mukande and Co. JUDGMENT MAMBILIMA JS, delivered the Judgment of the Court. Authority referred to: (i) Attorney-General vs Kamoyo Mwale Appeal No. 79 of 1996 This is an appeal against an assessment of damages by the Deputy Registrar. The Respondent in the lower Court had on a Writ of Summons claimed damages for breach of a contract of employment, payment of long service bonus, redundancy payments, refund of rentals, interest and costs. At the trial of the matter, the Respondent gave viva voce evidence in support of his case while the Appellant did not call any evidence. On 17th December, 1998, the Court entered Judgment in favour of the Respondent and referred the matter to the Deputy Registrar for assessment of damages. The Appellant did not attend the assessment before the Deputy Registrar. The Respondent on his part gave viva voce evidence and filed an affidavit to which he attached a computation of the damages he was claiming. The Registrar awarded him the heads of damages as claimed, that is, K100,800,000.00 for salary, K17,200,000 for Long Service Bonus, K10 million as damages for emotional distress and a further K50,000,000.00 for aggravated damages. The Deputy Registrar seems to have awarded the damages as claimed on the ground that there was no.... to the same by the Appellant. Before us the Appellant has advanced 7 grounds of appeal as follows: 1. That it was a misdirection and erroneous at law for the Hon. Deputy Registrar to assess damages in this matter without giving the Appellant an opportunity to oppose the application on the merits. 2. That it was a misdirection and erroneous at law for the Hon. Deputy Registrar to find ex-parte that the Respondent's conditions of service with the Appellant had been breached. 3. That it was erroneous at law for the Hon. Deputy Registrar to find that the Respondent's service with the Appellant had been terminated by the Appellant when the Respondent secured full time employment at Zambia Privatization Agency where the Appellant had seconded him. 4. That it was erroneous at law and a misdirection for the Hon. Deputy Registrar to accept the Respondent's affidavit evidence in its entirety without affording the Appellant an opportunity to challenge it. 5. That it was erroneous at law for the Hon. Deputy Registrar to make figurative assessments in favour of the Respondent for salary, long service bonus, emotional distress, aggravated damages and house rent refund without affording the Appellant an opportunity to challenge the Respondent's claim on the said points. 6. That it was erroneous at law for the Hon. Deputy Registrar to find that the Appellant owed the Respondent pension benefits up to his retirement age. 7. That it was erroneous at law for the Hon. Deputy Registrar to award interest on the amounts he had assessed in favour of the Respondent at 25% per annum until date of payment. In his submissions before the Court, Mr. Muneku conceded that this being an appeal against the assessment of damages by the Deputy Registrar, the grounds of appeal which touch on issues of liability are untendable. To this effect he relied on two main arguments which are; that the Learned Deputy Registrar ought not to have awarded the Respondents benefits up to the date of his retirement and that the Respondent was not also entitled to the other claims which were awarded to him by the Court together with interest. On the award of K100,800,000.00 for salary, Mr. Muneku submitted that the Appellant was not entitled to this award, which was in fact a salary up to the date of his retirement. He went on to state that all that the Respondent was entitled to was a refund of his pension contributions calculated up to the time when he left the Appellant's employment. On the award of K17,200,000 for Long Service Bonus, Mr. Muneku submitted that the Respondent was not entitled to this payment because he had only been in employment for about 7 years. For one to claim a Long Service Bonus, he must have served the Organisation for 10 years and above. On the amounts awarded for emotional distress and aggravated damages, Mr. Muneku submitted that the Respondent could not have suffered emotional distress and could not be entitled to aggravated damages because he left the employment of the Appellant to join the Zambia Privatization Agency which was paying a better salary. In reply, Mr. Mukande submitted that the Respondent was seconded to the Zambia Privatization in 1991 , He only procured a permanent appointment with the said Agency in 1993. According to Mr. Mukande, at the time when the Respondent left the employment of the Appellant, he had problems in that during the period before he could get a new contract with the Agency, he had nowhere to go. He went on to state that the manner in which his employment was terminated led to a period of emotional distress and he had even to pay rentals from his own resources which money should be refunded to him by the Appellant. We have considered the evidence which was before the Deputy Registrar and the submissions by the learned Counsels before us. It is common cause that in 1991, the Respondent, while in the employment of the Appellant was seconded to the Zambia Privatization Agency. It is also clear that the Respondent's employment with the Appellant was on permanent and pensionable conditions of service. The said employment was terminated on 31st March, 1993. According to a letter on page 40 of the record of appeal, the Respondent took up an appointment with the Zambia Privatization Agency on 1st April, 1993. It is clear from these dates that there was no time during which the Respondent was out of employment. He walked out of one job into another. On the claims as awarded by the Deputy Registrar, we find that firstly, the award of K100,800,000.00 for salary is for future earnings encompassing a salary which the Respondent could have earned up to the age of his retirement. As we found in the case of the Attorney-General vs Kamoyo Mwale (1) such an award is wrong in principle because the law imposes a duty on any claimant to mitigate his damages. In this case, the Respondent did mitigate his damage by getting another job. Although the Appellant did not contest the assessment, the Court below ought not to have made an award which was wrong in principle. In the circumstances, the award of K100,800,000.00 for salary is set aside. On the evidence in this case, the Respondent is entitled to a refund of his pension contributions comprising his own contributions and those of the employer up to the date when he left the employment of the Appellant. On the award of K17,200,000.00 for Long Service Bonus, we are again at pains to find the basis on which this award was made because according to page 34, paragraph (j) of the Record of Appeal, the Respondent had only served the Appellant for a period of 7 years. To qualify for his benefit, he ought to have worked for 10 years. On the awards of K10,000,000.00 and K50,000,000.00 respectively for emotional distress and aggravated damage, we again find no basis for the awards because according to the documents and evidence on record, the Respondent left one job for a better paying job within 24 hours of leaving the employment of the Appellant. We are not persuaded to find that the Respondent could suffer any emotional distress and be entitled to damages for having been out of a job. * From the foregoing, the Respondent is only entitled to a refund of the pension contributions to be paid to him with interest at the average short term deposit rate from the date of the Writ up to judgment in the court below and thereafter, at the average lending rate as determined by Bank of Zambia. In the circumstances of this case, we order costs against the Appellant for the reason that it chose not to attend the hearing on assessment of damages where it could have presented its side of the story and counteracted the claim by the Respondent. Having slept on it's rights, necessitating this appeal, we condemn it in costs. D. M. LEWANIKA I. M. C. MAMBILIMA DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE P. CHITENGI SUPREME COURTJUDGE