Zuberi v Attorney General (Civil Case No. 579 of 2003) ((Civil Case No. 579 of 2003)) [2005] MWHC 48 (01 January 2005);

Share

IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CASE NO. 579 OF 2003


BETWEEN

SUMAISI ZUBERI…………..……………………………PLAINTIFF


-AND-


THE ATTORNEY GENERAL….....………………….DEFENDANT



CORAM: MANDA, SENIOR DEPUTY REGISTRAR


Mapila for the plaintiff


Baziliyo Court Clerk


ORDER ON ASSESSMENT OF DAMAGES


This matter came for assessment of damages following a default judgment that was entered by the court on the 4th day of November 2003. During the assessment hearing only one witness testified and that was the plaintiff himself.


The claim before me was for damages for unlawful dismissal from employment. Having failed to defend the matter, the defendant also did not attend the assessment hearing. In the latter case this was done despite the defendant acknowledging notice of the hearing. Being duly satisfied that the defendant was aware of the proceedings, I proceeded with my assessment.


The facts of this case are that sometime in September 2001, the plaintiff was offered employment as a driver for the National Local Government Finance Committee on a three-year contract. From the facts presented, the activities of the Committee, including purchase of motor vehicles for which the plaintiff was recruited, were to be financed using donor funds (DANIDA). However, the donors withdrew from the project with the result that the Committee was unable to acquire any vehicles. Following this development, the Executive Secretary for the project, a Mrs. K. Kaluma, wrote the plaintiff a letter terminating his services.


It was the plaintiff’s evidence that there was a clause in his contract of employment which provided that after the expiry of the project; he would be employed on full time basis by Ministry of Local Government. The plaintiff also told the court that after his services had been terminated he was alleged informed by his colleagues that interviews had been conducted for his position and that someone had actually been employed on his former position. According to the plaintiff he did confirm this development when he went to their offices


There being a default judgment, this assessment proceeds on the premise that the defendant are liable for wrongful dismissal and as such I will proceed with my assessment of damages which the plaintiff has suffered as a result of the defendant’s action. I should of course mention the fact that there had been an application by the defendant to have the default judgement obtained by the plaintiff set aside on account that they had a defence. The defence that was being propounded by the defendants was that the termination of the contract with the plaintiff was legal in that it complied with the terms of the contract which provided that the plaintiff be given three months notice pay. Suffice to say however that the application to set aside the default judgement was dismissed with costs for want of prosecution, on the 29th day of September 2005.


Briefly the facts of this case are that the plaintiff was employed by the defendant on a three-year contract as a Communications Officer. The contract term was to run from September 2001 and should have expired in September 2004; however the plaintiff resigned from NAC on the 28th day of May 2004. The plaintiff’s resignation allegedly followed accusations by NAC’s management that he had, among other things, altered a contract that NAC had awarded to Top Advertising to produce brochures. From the plaintiff’s evidence, after a sample of the brochures had been produced, the plaintiff, in his capacity as a Communications Officer, made some suggestions on the quality of the brochures, which suggestions were taken into account by Top Advertising. Following the plaintiff’s suggestions Top Advertising did indeed produce brochures as per the plaintiff’s suggestions but at the same time they raised a supplementary invoice of K250 000, which they asked NAC to pay. Apparently NAC did pay this amount to Top Advertising but since management felt that they did not authorize this extra expenditure, they sought to recover this amount by deducting from the plaintiff’s salary the sum of K37 500 in monthly installments until the amount of K250 000 was fully liquidated. Presumably these deductions were to be made up to the expiry of the plaintiff’s contract.



In assessing damages for wrongful dismissal, the measure of damages is prima facie the amount the plaintiff would have earned had the employment continued according to contract subject to a deduction in respect to any amount accruing from any other employment which the plaintiff, in minimizing damages, either had obtained or should reasonably have obtained (see Beckham v Drake (1849) 2 H. L. C. 579). The law considers that employment in any ordinary branch of industry can be obtained by a person competent for the place, and that it is the duty of the servant to use diligence to find another employment.


The amount that the plaintiff would have earned under a contract is the salary which the defendant agreed to pay and according to the case of Lake v Campbell (1862) 5 L. T. 582, includes any bonus. In this instance the plaintiff told the court that he was getting the sum of K213 750 per month as his salary. When he resigned in May 2004 he still had four months in which he would have earned the total sum of K855 000 in terms of salary. There is no indication that apart from the salary the plaintiff was earning any other benefits whilst in employment. Further, upon termination of his employment, the plaintiff seems not to have found any other alternative employment as he apparently had to move to Thondwe, in Zomba. When he was leaving, the plaintiff was allegedly not paid anything in terms of severance pay and that he had to pay for his own transport to Zomba, incidentally that was also where he was recruited from while working for the Malawi institute if Education. The plaintiff did however not state how much he had spent on transport back to Zomba. In any case I would think that that amount should have been specifically claimed since it was obviously liquidated. Indeed such amounts are recoverable as consequential losses to the wrongful dismissal.


Regarding the issue as to whether the plaintiff could have found an alternative job to mitigate the damages, it is my view that the principle can not apply to this instance in view of the fact that what is in issue in this instance is a specific amount that the plaintiff would have earned under the three year contract. It is my considered opinion that there should be a difference between a long term or permanent contract from a short term one. This is in the sense that in the former it would be right to expect someone to mitigate the damage by finding an alternate job while awaiting the outcome of the trial because in such a case there might be uncertainty in terms of the amount of damages an employee would be entitled to by the end of the day. This is taking into account factors like salary increase and promotions, just to mention a few. However, where the amount that the employee would have earned has been specifically agreed to and the contract of employment is for s short period, it is my view that the plaintiff ought to be entitled to the full amount that he would have earned under the contract had it not been for the breach. I would thus award the plaintiff the full amount of K855 000, which he would have ordinarily earned has his contract not been terminated.


The plaintiff did also state that in his evidence that his contract with NAC would have been renewed since NAC had been provided with funds from the Global Fund. In the sense the plaintiff was trying to ask this court to awards him damages for possible future earnings. However, it is the view of this court that the fact that NAC had been provided with the Global funds alone would not have guaranteed that the plaintiff’s contract would have been renewed. Indeed there would have been a number of factors, which would have had to be taken into account before the contract was renewed, one of which would have had to be the plaintiff’s performance. In any case these damages were not part of the plaintiff’s initial claim.


In the final analysis then the plaintiff is awarded the sum of K855 000 as his damages for wrongful dismissal. The plaintiff is also awarded costs of this action.


Made in Chambers this………day of……………………………………….2005.









K.T. MANDA

SENIOR DEPUTY REGISTRAR