ZESCO limited v Cyprian Chitundu and Anor (Appeal No. 67/2017; CAZ/8/0062/2017) [2018] ZMCA 613 (1 February 2018)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CJtaf $ / ()7) G z I Q__fJ 17 AppealNo.67/2017 BETWEEN: ZESCO LIMITED AND CYPRIAN CHITUNDU ATTORNEY GENERAL 0 1 APPELLANT 1 STRESPONDENT 2ND RESPONDENT Coram: MCHENGA, DJP, MULONGOTI and SICHINGA, JJA On the 1 st day of February, 2018 For the Appellant: Mr. S. Mambwe of Mambwe, Siwila and Lisimba Advocates For the 1st Respondent: Mr. E. K. Mwitwa of Mwenye and Mwitwa Advocates For the 2 nd Respondent: Mr. F. Imasiku- Principal State Advocate, Attorney-General's Chambers JUDGMENT Sichinga, JA, delivered the Judgment of the Court Cases referred to: 1. Zambia National Commercial Bank Limited v. Kapeka Button Mhone SCZ No. 30 of 2000 2. Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 172 3. Georgina Mutale T/A G. M Manufacturers Limited v. Zambia National Building Society SCZ No. 5 of 2002 4. Kitwe City Council v. William Ng'uni (2005) ZR 57 5. YB and F Transport Limited v. Supersonic Motors Limited (2000) ZR 6. Tweddle v. Atkinson [1861JEWHC J57 7. General Nursing Council of Zambia v. Mbangweta (2008) ZR 105 8. J. K. Rambai Patel v. Mukesh Kumar Patel (1985) ZR 220 (S. C.) 9. Dennis Chansa v. Barclays Bank Zambia Plc, SCZ Appeal No 11 2011 10. Chilanga Cement PLC v. Kasote Singogo (2009) ZR 122 (SC) 11. Dunlop Tyre Co. Ltd v. Selfridge (1915) AC 847 12. Daniel Payela v. Zambia Consolidated Copper Mines, SCZ Appeal No. 8 of 2014 13. Scherer v. Counting Investment Limited (1986) 1 WLR 615 14. Collet v. Van Zyl Brothers Limited (1966) ZR 65 (CA) 15. Swarp Spinning Mills Plc v. Chileshe and Others (2002) ZR 23 (SC) 16. Zambia Privitisation Agency v. Matale (1995 - 1997) ZR 157 (SC) Legislation Referred to: 1. The Companies Act Chapter 394 of the Laws of Zambia 2. Section BSA of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia Other Authorities 1. Black's Law Dictionary, 10th Edition at page 1771 -J2- This is an appeal against a Judgment of Industrial Relations Court division delivered on 9 th March, 201 7. The salient facts of the case are that in or about October, 2011 the 1st respondent was appointed Managing Director. of Zesco, the appellant company by its Board of Directors on a three year contract, which was subsequently renewed for a further term of three years effective 4 th October, 2014. On the 15th of February 2015, the Minister of Mines, Energy and Water Development (hereinafter referred to as 'the Minister') placed the 1st respondent on forced leave pending redeployment. However, he was never redeployed. Instead, seven months later, the Minister terminated his employment in national interest. The 1st respondent sued on grounds that the Minister had no authority to terminate his contract, as it could only be terminated by a resolution of Zesco's Board of Directors (hereinafter referred to as 'the Board'). He did not receive any form of communication to this effect from the said Board of Directors. He further averred that at the time of the purported termination, the Minister had dissolved the Board in February 2015 and as such, he could not have -J3- recourse to the Board to convey his grievances 1n relation to the Minister's decision to terminate his employment. The 1st respondent's claims that the purported termination of his employment by the Minister was unlawful, wrongful and null and void ab initio, as it was not authorized by either his contract of employment, the Articles, the Board Charter or the General Conditions of Service. He sought the following reliefs: (i) A declaration that he was still an employee of the appellant company; (ii) A declaration that the purported termination of his employment by the Minister of Mines, Energy and Water Development was unlawful, wrongful and null and void ab initio; (iii) An order reinstating him as Managing Director of the appellant company; (iv) An order for payment of his monthly salaries and all accrued benefits from 7 th September 2015, being the purported date of termination to the date of the determination of this matter; -J4- (v) In the alternative, damages for unlawful and wrongful termination calculated at 36 months' gross pay in line with judicial precedent; damages for mental anguish and embarrassment; contractual gratuity and all other benefits under the contract or the law. (vi) Interests and costs. For its part the appellant averred that the Minister's termination of the 1st respondent's employment was in the national interest and is an acceptable mode of termination. As such , the Board did not have the option of taking any action, since it was not in existence at the time of the termination. That the Ministry which is a shareholder in the appellant company, acting through the Minister, stepped in and exercised its right to terminate the 1st respondent's contract of employment. Further, that the 1st respondent was paid his benefits in full by the appellant company in accordance with his contract of employment. The 2 nd respondent's position was that there was no Board in place at the time of the termination of the 1st respondent 's employment and therefore, the shareholder represented by the Minister -JS- terminated the 1st respondent's contract in the national interest, and that the Minister had delegated authority from the Minister of Finance as shareholder to supervise ZESCO, including appointment of the Board. In its Judgment dated 9 th March 201 7, the trial Court made reference to Part X of the Companies Act1 which deals with the appointment of Directors, their powers and responsibilities. The court found that the Board, and not shareholders, had the power to recruit employees and terminate employment contracts. Thus, when the Minister terminated the 1st respondent's contract of employment, he acted in contravention of his statutory duty thereby rendering the dismissal unfair. The court also found that the termination was wrongful because the procedure for termination as set out in the contract was not followed. The trial Court observed that there were no special circumstances that would warrant an order of reinstatement, and such an order would not be appropriate considering the interest of both parties. The court then awarded twenty four (24) months gross salary as compensatory damages for unfair dismissal to be paid by the -J6- appellant. He was of the view that the termination was done with impunity and in abrogation of the law and basic tenets of good corporate governance. Additionally, the trial Court found it befitting to depart from the normal measure of damages, as he found that the termination of employment could be said to have been inflicted in a traumatic way, which caused undue distress or mental suffering on the 1st respondent. In this regard, the Court ordered that the 1st respondent be paid nine (9) months' salary including allowances that he was entitled to as compensation for wrongful dismissal. As regards the 1st respondent's claim for leave pay, the Court ordered that the same be paid for the period during which he was on forced leave. The appellant was ordered to pay all moneys due to the 1st respondent. Being dissatisfied with the Judgment of the Court below, the appellant has appealed before this court, advancing the following grounds of appeal: 1. Havi.ng found that the 2 nd respondent through the Minister of Minister of Mines, Energy and Water Development terminated the 1st respondent's contract of -J7- employment, the Court erred in law and in fact by ordering the appellant and not the 2 nd respondent to pay the damages for unfair and wrongful dismissal. 2. The learned trial Judge erred in law and in fact when he failed to consider the uncontroverted evidence to the effect that the 1st respondent had been paid gratuity as if he had served his full contract in line with his contract of employment and could therefore not be due any damages from the appellant. 3. The Court below erred in law and in fact by failing to consider that the appellant had discharged all its obligations under the contract between the parties by paying gratuity when the 1st respondent stopped reporting for work. 4. The learned trial Judge erred in law and in fact by ordering the appellant to pay leave-pay to the 1st respondent when the 1st respondent had conceded that he had been paid this in Ju ll and had abandoned the claim. 5. The learned trial Judge erred in law and in fact by failing to indicate which of the two respondents in the court below was liable to pay costs of the matter. -JS- 6. Alternatively, the learned trial Judge erred in law by awarding 33 months as damages as this was excessive. Counsel for all the parties filed in written heads of argument upon which they indicated they would rely. Under ground one, Mr. Mambwe, learned counsel for the appellant, argued that it is not in dispute that the appellant played no role in the termination of the 1st respondent's employment. The Minister who terminated was infact sued through the Attorney-General, who is the 2 nd respondent to this appeal. Counsel contended that the Court below, without advancing any reasons, found that the termination was wrongful in that the procedure was not followed by the 1st respondent (now appellant) in terminating the 1st respondent's contract of employment and went ahead to order the appellant to pay as damages a total of 33 months salary without making any order against the 2 nd respondent whose client, the Minister, was responsible for the termination. Counsel submitted that it is a trite principle of justice and equality that a party is responsible for its own actions, and that it is patently unfair to order a person to pay for the wrong doing of another person unless -J9- there was joint comm1ss1on of the wrong. The case of Zambia National Commercial Bank Limited v. Kapeka Button Mhone 1 was cited in this regard. He reiterated that the appellant played no role in the dismissal of the 1st respondent and cannot be held accountable for the alleged wrong actions of a third party, in the name of the Minister. Under ground two, Mr. Mambwe argued that Zesco pleaded in the Court below that following his termination, Mr. Chitundu was paid as though he had served the full contract, and that this evidence including the computation of his terminal benefits and proof of transfer of funds, was not challenged at trial. Counsel indicated that the 1st respondent, in fact admitted in his testimony by conceding to having been paid gratuity, though the tax should have been borne by Zesco. In this regard, it is argued that the trial Court's failure to take into account this critical evidence, and indeed to consider what effect it had on the complainant's claims, was a miscarriage of justice, and that had it taken this evidence into consideration, it would have arrived at the inevitable conclusion that Zesco was not liable to pay anything to the 1st respondent. The case of Wilson Masauso Zulu v. Avondale -JlO- Housing Project Limited2 was cited to advance the position that a trial Court is obliged to determine all issues brought into contention so that as far as possible the matter is fully determined. The Supreme Court in that case held that: "The trial Court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality." He submitted that the failure of the trial Court to determine the effect on the awards of the payment of a full gratuity to the 1st respondent as if he had served his full contract resulted in an injustice to the appellant. In developing his arguments, counsel referred us to the evidence on record that the 1st respondent has stopped reporting for work, and as such the critical office of Managing Director could not remain vacant. A new Managing Director was appointed in the 1st respondent's stead. He therefore submitted that the appellant then utilized clause 7 (iii) of the contract of employment which mandated it to pay the 1st respondent his full gratuity as if the contract period had been served in full. -Jll- He concluded that it is a trite principle of law that parties are bound by their terms of contract. That when the 1st respondent stopped reporting for work, the contract terminated under the said clause 7 (iii). He added that this compelled the appellant to abide by the terms of the said clause and pay the 1st respondent as if he had served the full contract. The third ground of appeal was argued as a supplementary to ground two. The appellant added that the 1st respondent's contract of employment envisaged three types of termination; by notice, by disciplinary grounds, and on grounds other than misconduct. As the termination was not by misconduct or by notice , the applicable clause in the contract- clause 7(iii) necessitated the payment of gratuity as if the contract had been duly completed. The 1s t respondent having been fully paid, there could have been no question of breach of contract or wrongful termination, as the employment contract was fulfilled. It was submitted that the failure by the trial Court to consider this resulted in a miscarriage of justice on the part of the appellant. The case of Wilson Masauso Zulu (supra) was cited in support. -J12- In ground four, Mr Mambwe pointed out that evidence from the record, particularly in the 1st respondent's written submissions filed in the court below, to the effect that he had conceded to having been paid his accrued leave days in full, and that he no longer had any claim against the appellant company for payment of his accrued leave days. Counsel submitted that the court below was clearly wrong in ordering the appellant to pay the 1st respondent's leave pay, as this was against the weight of available evidence to the contrary. The fifth ground of appeal relates to the trial Court's om1ss1on to state which one of the two respondents in the lower court was to pay costs, as the learned trial Judge merely stated that "costs awarded to the Complainant." Mr. Mambwe submitted that there was need to establish who between the two parties is liable to meet the costs. In this regard counsel relies on the case of Zambia National Commercial Bank Limited v. Kapeka Button Mhone (Supra). He argued further that costs are ordered at the discretion of the Court, which discretion should be exercised judiciously by ordering the liable party to pay costs. Additionally, that there should be some blame to attach to the party who is ordered to pay -J13- costs. The case of Georgina Mutale T/A G. M Manufacturers Limited v. Zambia National Building Society3 was cited in support of this position. There is no blame that can be reasonably attached to the appellant when it played no role whatsoever in the termination of the 1s t respondent's contract, but in fact acted reasonably by paying his gratuity, and this is hardly a basis upon which to be condemned in costs. The sixth ground of appeal was argued in the alternative, that in the event that we find that Zesco played a part in the termination of the 1s t respondent's contract of employment, we should find that the trial Judge's award of a total of thirty three (33) months' salary as compensatory damages was excessive, as the 1st respondent was paid gratuity as if he had served his contract in full. The case of Kitwe City Council v. William Ng'uni4 , was cited wherein the Supreme Court held that it is unlawful to award pension benefits for a period not worked for because such an award has not been earned and might properly be termed as unjust enrichment. Counsel submitted that notwithstanding this holding, the 1st respondent was paid gratuity for the period not worked for because it was specifically provided for in the contract of employment and -J14- adding a further thirty three (33) months in damages is not only contrary to the terms of the contract but also amounts to unjust enrichment. Counsel further argued that the trial Court's approach of awarding two types of damages over one and the same dismissal, that is; 24 months' salary for unfair dismissal and 9 months' salary for wrongful dismissal was unprecedented and this is what resulted in the excessive damages. In response to ground one, counsel for the 1st respondent, Mr. Mwitwa argued that although the evidence on record shows that the termination of the 1st respondent's employment was initiated by the 2 nd respondent through the Minister, but the appellant unequivocally acquiesced to the termination or endorsed it, as evidenced from the appellant's conduct, pleadings and from the record. For instance, the appellant stated in its Answer to the Notice of Complaint that the mode of termination was acceptable and was not open to the Board to question it. The appellant further proceeded to appoint or recognize another person as its Managing Director following the termination of the 1st respondent's contract. -J15- Counsel referred us to the case of Tweddle v. Atkinson5 in which the doctrine of privity of contract was espoused. It is argued that the 2 nd respondent could not be held liable to the terms of the contract between the appellant and the 1st respondent. However, the appellant could and was rightly held liable in damages as it was privy or a party to the contract with the 1st respondent. As to the appellant's contention that the learned trial Judge gave no reason for ordering the appellant and not the 2 nd respondent to pay the damages awarded to the 1st respondent, counsel invited us to consider the portion of the impugned judgment where the trial Judge addressed the question whether or not the termination of the 1st respondent's employment was wrongful, unlawful and unjustified, and in this vein concluded that the correct and contractual procedure in terminating the 1st respondent's contract of employment was not followed. Learned counsel submitted, in the alternative, that should we find that the appellant is not liable to settle the dues payable to the 1st respondent, we should order the 2 nd respondent to pay the said dues on the basis that the wrongful termination was occasioned by the 2 nd respondent through the Minister. -J16- In response to grounds two and three, Mr. Mwitwa argued that the appellant only raised the issue of payment of gratuity in the Court below as an objection to the 1st respondent's claim for an order of reinstatement, as at the time of payment of the said gratuity, Zesco was operating under the mistaken impression that it had properly and lawfully terminated the 1st respondent's employment. Having found otherwise, the trial Court was entitled to overlook the fact that Zesco had paid the 1st respondent gratuity as though he had worked for the entire duration of the contract, especially that the Court below was determining the matter pursuant to the provisions of Section BSA of the Industrial and Labour Relations Act2 • In sum, counsel submitted that being a court mandated to administer substantial justice, the court below was within its statutory right to award the 1st respondent damages for unfair and wrongful dismissal notwithstanding any terminal benefits that Zesco paid to the 1st respondent since he was unlawfully relieved of his duties. Under ground four, it is submitted that the learned trial Judge was duty bound to consider whether the 1st respondent was in fact and in law entitled to any leave days notwithstanding that he -Jl 7- acknowledged having been paid his accrued leave days up to 7 th September 2015. It is counsel's contention that the court below is clothed with the statutory authority to make any order or award it may deem fit in the circumstances of the case as per Section BSA (d) of the Industrial and Labour Relations Act (supra). Counsel pointed out from the Notice of Complaint on record that the 1st respondent asserted that he was entitled to all benefits accruing to him from 15th February, 2015 to the date of the termination of the contract, 7 th September, 2015. The said benefits included his accrued leave days during the period of his farced leave, in view of the fact that the forced leave was not supported by the contract or the law. In the period between 15th February, 2015 and the date of termination of the contract, 7 th September, 2015, the 1st respondent was therefore entitled to and was accruing leave days. Counsel further referred to pages J2 l to J22 of the Judgment and submitted that the learned trial Judge did address his mind to the question of the effect of the forced leave on the 1st respondent's leave entitlement because the Court held that the 1st respondent -J18- continued accruing leave days during the period of forced leave. He submitted that the court's finding was also premised on the letter from the Minister dated 15th February, 2015 which stated that the 1st respondent was placed on forced leave pending redeployment elsewhere on full salary and other applicable conditions of service he was enjoying. In sum, it is submitted that the learned trial Judge was on firm ground when he ordered the appellant to pay the 1st respondent for the said leave. In response to the ground five, Mr. Mwitwa submitted that the principle that costs follow the event is very well entrenched in this jurisdiction, and in this regard relied on the case of YB and F Transport Limited v Supersonic Motors Limited6 wherein the Supreme Court held that; "The general principle is that costs should follow the event; in other words a successful party should normally not be deprived of his costs, unless the successful party did something wrong in the action or in the conduct of it." The cases of General Nursing Council of Zambia v Mbangweta7 and J. K. Rambai Patel v Mukesh Kumar Patel8 were also cited by -J19- the 1st respondent's counsel to reiterate the same principle that costs follow the event. He argued that the appellant, being the party that was held liable to pay damages and accrued leave days to the 1st respondent, and having been in support of the 2 nd respondent's action to terminate the 1st respondent's contract of employment, should be liable for costs as it is the party that was found to have breached its contract with the 1st respondent. Counsel contended further that the appellant was as much to blame as the 2 nd respondent but since the 1st respondent's contract was with the appellant, it is the appellant that is liable to pay the damages and costs. Counsel argued, in the alternative, that if we are persuaded by the appellant's arguments, we should order the 2 nd respondent to bear the costs of this appeal and those in the court below on the basis that this action was occasioned by the 2 nd appellant's action to terminate the 1st respondent's employment, which action was supported by the appellant. He submitted that in any event, the 1st respondent should not be deprived of his costs regardless of which party as between the appellant and the 2 nd respondent is liable to bear them. -J20- In response to the sixth and final ground of appeal, Mr. Mwitwa submitted that the lower court was on firm ground when it departed from the normal measure of damages and awarded the 1st respondent 24 months ' salary for unfair dismissal and nine (9) months' salary for wrongful dismissal, as this order is consistent with the remedies that can be awarded by the court below under Section BSA (b) of the Industrial and Labour Relations Act (supra). Counsel made reference to the case of Dennis Chansa v Barclays Bank Zambia Plc9 in which the Supreme Court upheld the trial court's award of thirty six (36) months' salary as damages for wrongful dismissal. Our attention was further drawn to the case of Chilanga Cement PLC v Kasote Singogo10 in which the Supreme Court held as follows: "When awarding damages for loss of employment, the common law remedy for wrongful termination of a contract of employment is the period of notice. In deserving cases, the Courts have awarded more than the common law damages as compensation for loss of employment." -J21- Responding to the appellant's argument that the award of damages for unfair dismissal in addition to damages for wrongful dismissal over the same dismissal is unprecedented, counsel submits that there is no law that proscribes the court below, whose jurisdiction from granting awards emanates from the provisions of Section BSA of the Industrial and Labour Relations Act (supra), from granting an order of such a nature, thereby overlooking the appellant's payment of gratuity as it deemed the circumstances leading to the termination of the 1st respondent's contract of employment as aggravating or exceptional. Counsel further points out that the said damages were in lieu of reinstatement, which the appellant objected to in the court below. The learned Principal State Advocate, Mr. Imasiku, submitted on behalf of the 2 nd respondent that the learned trial judge was on firm ground when it ordered the appellant and not the 2 nd respondent, to pay damages for wrongful dismissal. Particularly, in response to the appellant's argument that it is the 2 nd respondent that dismissed the 1st respondent and the appellant played no role in the dismissal, counsel submitted that the question for determination 1n ascertaining liability under the contract of employment is, who had -J22- the capacity at all material times to terminate the 1st respondent's contract of employment? To this effect, the learned Principal State Advocate submitted that the principle of law which answers the foregoing question is the doctrine of privity of contract as espoused in the case of Dunlop Tyre Co. Ltd v Selfridge11 , and which was also acknowledged in the case of Daniel Payela v Zambia Consolidated Copper Mines12 wherein it was held that; "The principle of privity of contract is a fundamental principle of law of contract in that a person who is not a party to a contract cannot sue or be sued under the contract." Counsel submitted that the 2 nd respondent, through the Minister, was not privy to the contract between the appellant and the 1st respondent. The appellant, being a company limited by shares, has a personality distinct from its shareholders thereby capable of being bound by the burdens and benefits of a contract. With respect to grounds two, three, four and six, the 2 nd respondent offered no arguments in response. -J23- In response to ground five it was argued that the learned trial Judge was on firm ground to the extent that he did not order the Attorney General to bear the costs of the proceedings in the court below. The learned Principal State Advocate cited the cases of Scherer v Counting Investment Limited13 and Collet v Van Zyl Brothers Limited14 in advancing the position that the award of costs in an action is at the discretion of the trial judge, and such discretion should be exercised judiciously. Counsel submitted that having already argued in response to the first ground of appeal that it is in fact the appellant that dismissed the 1st respondent and not the Attorney-General, and urged this Court to exercise this discretion in favour of the 2 nd respondent by condemning the appellant to costs. In sum, the learned Principal State Advocate urged us to uphold the Judgment of the Court below and dismiss grounds 1 and 5 of the appeal. Having analyzed all the evidence on record and considered the heads of argument and the Judgment of the Court below, we shall consider grounds one, two and three together of appeal. Considering the circumstances of this case, and indeed the arguments advanced by all the parties herein in relation to ground -J24- one , we are inclined to agree with the 2 n d respondent's position to the extent that the 1st respondent was employed by the appellant at all material time and not the 2 n d respondent. It is by virtue of this contractual relationship between the two that the appellant was ordered to pay damages for wrongful and unfair dismissal. To this extent, we are in agreement with the arguments on the principle of privity of contract advanced by the learned Principal State Advocate. Further, we are of the view that the appellant supported and/ or endorsed the Minister's action of terminating the 1st respondent's employment by invoking clause 7 (iii) of the contract. Clause 7 of the contract is captioned "Notice of Termination". Under clause 7 are three sub clauses. Clause 7(iii) provides: "Where the company terminates the contract on grounds other than misconduct, the company shall pay the employee full gratuity (excluding monthly salaries and allowances) as if the contract period had been served." It is clear to us that Zesco terminated the 1st respondent's employment though the Minister initiated it. Mr. Mambwe's arguments in this regard files in the teeth of the evidence and clause 7 (iii) . If anything, Zesco stated in its Answer that -J25- termination by the Minister was acceptable and not open to the Board, showing that it sanctioned the termination and gladly paid the 1st respondent in accordance with clause 7(iii). Zesco even appointed someone in the position of the 1st respondent. Furthermore, we take the view since there was no Board in place at the time, the Minister in conjunction with Zesco, acted as the Board (which he appoints) and exercised its powers to terminate, by notice which necessitated Zesco to invoke clause 7 (iii) of the contract. Seeing as no issues of misconduct arose in this matter, we hold that the 1st respondent was properly paid his dues as provided in the contract of employment and to this extent, the appellant did abide by the terms of the contract. However, the basis of an action for wrongful dismissal such as the matter in casu is the manner in which the termination is occasioned, notwithstanding that other provisions of the contract were complied with. To this extent, the 1st respondent's acceptance of gratuity did not legally bar him from commencing an action against the appellant for the manner in which the contract was terminated, that is; contrary to the provisions of clause 7 of the contract of employment. The Minister -J26- terminated him in the national interest, contrary to the contract as afore-mentioned. Clause 7 (i) required the contract to be terminated by notice period of not less than three (3) months previous notice in writing to this effect. In the same vein, the payment of gratuity did not absolve the appellant from liability for payment of damages in the event of it being found liable for wrongful and/ or unlawful dismissal as is now the case. On the issue of the measure of damages in relation to the notice of termination, we are fortified by the holding in the case of Swarp Spinning Mills Plc v Chileshe and Others15 wherein it was held inter alia that: "(i)The norm.al measure of damages applies and will usually relate to the applicable contractual length of notice or the normal reasonable notice where the contract is silent. (ii) The normal measure is departed from where the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering." In the instant case, the learned trial Judge found it appropriate to depart from the normal measure of damages which is the notice -J27- period of three months and went on to award nine months' salary as damages for wrongful dismissal, as he was of the view that the manner in which the 1st respondent's contract was terminated was traumatic and caused him distress. We cannot fault the learned trial Judge for finding that the 1st respondent's termination was done in a traumatic fashion and caused him distress. The 1st respondent was placed on forced leave pending redeployment two days after the contract was renewed. Then he waited for six months without being redeployed. The termination occurred not too long after this without redeployment. The evidence that he suffered shock was not challenged in cross-examination and on these facts we agree. Further, the events leading to the termination of the 1st respondent's contract were played out in the public domain, on the national broadcaster. The trial Judge was therefore on firm ground when he awarded 9 months salary for wrongful dismissal. He properly guided himself following the Supreme Court decisions in Zesco Limited v. Rhodnie Paul Sisala, supra. We, therefore, agree with the learned trial Judge's finding that since the appellant breached term of the contract to terminate with notice per clause 7 (i) and abruptly -J28- terminated his employment, it amounted to wrongful termination of the 1st respondent's contract, for which he is entitled to damages . We thus uphold the award of nine (9) months' including allowances as compensation for wrongful dismissal. Accordingly, grounds one, two, three and six are dismissed. With respect to the award for damages for unfair dismissal, we ~tated earlier that the Minister had assumed the position of the Board and exercised its powers. It is trite law that unfair dismissal deals with breach of a statutory right. We find that the trial Judge misdirected himself when he held that the 1st respondent's termination was unfair because it was in breach of part X of the Companies Act. As rightly stated by the Judge Part X of the Companies Act provides for powers, responsibilities and appointment of Directors, not statutory right of unfair dismissal. We opine that in this case the appellant was guilty of wrongful dismissal which arises where the employer does not follow the procedure for terminating enshrined in the employee's contract of employment. We have already alluded to the fact that termination here was done contrary to the contract, hence wrongful. We have upheld the award of damages above the normal measure of notice period due to traumatic fashion of the termination. On the facts of -J29- this case, the question of unfair dismissal does not arise. We are therefore inclined to reverse the award of 24 months salary for damages of unfair dismissal. We also must state that in upholding the 9 months damages for wrongful dismissal we are fortified by the Supreme Court decision in Swarp Spinning Mills Pie v. Chileshe and Others 15 that compensation paid outside court proceedings (gratuity to end of contract in casu) be considered in determining the quantum . We would therefore allow ground six though it is in the alternative, it addressed the payment of 33 months salary as damages as a total in light of the appellant having paid gratuity to the end of the contract. Accordingly, the award of 24 months salary as damages for unfair dismissal is set aside. The 1st respondent should repay this money, if it has already been paid to him. In sum, the 1st respondent is entitled only to 9 months salary for unfair dismissal. On the basis of the reasons stated earlier, we find no merit 1n grounds one, two, and three but allow ground six of appeal. -J30- ,, • With respect to ground four, the appellant argued that the trial Judge should not have ordered it to pay leave pay to the 1st respondent for the period he was on forced leave, as the 1st respondent had conceded in his submissions in the Court below that he had been paid this in full and abandoned the claim. We note that the letter dated 15th February, 2015 pursuant to which the 1st respondent was placed on forced leave indeed states that he was to continue to be on full salary and other conditions of service he was enjoying at the time. We have also had sight of the relevant portion of the 1st respondent's submissions wherein he conceded to having been paid his leave pay and accordingly abandoned the claim. We are not swayed by the 1st respondent's argument that notwithstanding that he conceded to having been paid the leave pay, the trial court was still duty bound to consider his entitlement for leave pay. A perusal of the lower Court's Judgment reveals that the trial Court, in considering the issue of leave pay, did not address the fact that the 1st respondent had conceded to having been paid and abandoned this claim. He may have simply overlooked this. We are of the view that had he addressed his mind to it, he would have undoubtedly had no difficulty in finding that the claim to leave pay was one which he ought not to even have -J31- considered, as there was no longer any such claim by the 1st respondent by virtue of his having abandoned the claim. We therefore find merit in this ground of appeal and accordingly allow it. Under ground five, it appears to us that the appellant's argument that the 2 nd respondent should be held liable for costs is tied to its argument under ground one that the appellant played no role whatsoever in the termination of the 1st respondent's contract. This is further confirmed by counsel's reference to the case of Zambia National Commercial Bank Limited v Kapeka Button Mhone (Supra) where it was held that there should be some blame to attach to the party who is ordered to pay costs. We indeed agree with this reasoning and we are therefore accordingly guided by the cited case. In this vein, having found that the appellant in fact did play a significant role in the termination of the 1st respondent's contract of employment, it goes without saying that there is a considerably large amount of blame that is attributable to the appellant in this regard, so as to warrant its liability for costs as the erring party. To this extent, we agree with the appellant that the learned trial Judge erred when he omitted to state which of the two parties between the appellant and the 2 nd respondent was liable to -J32- pay the 1st respondent's costs of the action in the lower Court. The trial Court ought to have explicitly ordered the appellant to pay costs to the 1st respondent in the same manner it was ordered to pay damages for wrongful and unfair dismissal. We accordingly order that the 1st respondent's costs of the action in the Court below be borne by the appellant. We find merit in ground five and allow it. In conclusion, the appeal having substantially failed, each party shall bear its own costs in this court and below costs remain as ordered. C. F. R. MCHEN DEPUTY JUDGE PRESIDENT r J .z. MOLON TI COURT OF APPEAL JUDGE - ........ .. .. . ........... . -J33-