IN
THE HIGH COURT OF MALAWI

LILONGWE
DISRICT REGISTRY

CIVIL
CAUSE NO. 124 OF 1999

BETWEEN

W.W.M.
MOYO ………………………….……..…………………………PLAINTIFF

-AND-

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

CORAM : T.R.
Ligowe : Assistant Registrar

Chipao
: Counsel for the Claimant

Baziliyo
: Counsel for the Plaintiff

ORDER ON ASSESSMENT OF
DAMAGES

The plaintiff obtained a
default judgment against the defendant on 22^nd
January 2002 for damages to be assessed. This is the assessment of
the damages. He claims his salary from the time he was wrongfully

retired, 31^st
May 1994 when he was 48 years old to the time he would have retired
at the age of 55. He also claims terminal benefits for that
period
and costs of the action.

The plaintiff was at the
material time an Industrial Development Officer in the Ministry of
Trade and Industry. He in accordance
with Government circular No.
PD/104/1/0/VI/6 dated 11^th
June 1991 applied
on 20^th
October 1992 for 50% advance payment of his terminal benefits to
retire at the end of May 1994. Later on 15^th
November 1993, Government issued another circular reference No.
PD/104/1/0/VI/149 revising the retirement age from 50 to 55. The

circular further stipulated that officers, who had received their
terminal benefits pending retirement, be given an option to retire
or
not before the date of retirement. In his letter dated 11^th
March 1994, the plaintiff indicated his intention not to retire at
the end of May1994. But the defendant in a letter dated 17^th
June 1994, informed the plaintiff that he was deemed to have retired
on 31^st
May 1994 because of service and that his option not to retire could
not be entertained. The plaintiff avers that he was 48 in May
1994
and it was wrongful for the defendant to deny him the option not to
retire as it had been clearly stated in the circular.
He was entitled
to retire at 55.

Hearing of the assessment was
done in the absence of the defendant as he did not attend and gave no
reason for the non attendance
despite having been duly served with
the relevant notice.

In his evidence the plaintiff
confirmed the facts stated in his statement of claim. He tendered the
circular Ref. No. PD/104/1/0/VI/6,
his letter applying for 50%
advance payment of terminal benefits, circular Ref. No.
PD/104/1/0/VI/149, his ;letter indicating his
intention not to retire
at the end of May 1994, the defendant’s letter denying him the
option not to retire and his pay slip
as of April 1994.

The default judgment entered on
22^nd
January 2002 settled all matters with respect to liability. By making
default in giving notice of intention to defend the defendant
admits
the all allegations in the statement of claim. See Cribb
v. Freyberger
[1919] W.N. 22,C.A. My only duty at this juncture is ttherefore to
assess the damages as ordered in the judgment.

This is a claim I can
categorize as a claim for damages for wrongful dismissal. It was held
in J.F. Chanza v
Southern Bottlers Limited
Civil Cause No. 4 of 2000 (unreported) that the starting point in
considering damages in cases of wrongful dismissal is the contract

between the parties. McGregor
on Damages 15^th
Edition at
paragraph 1167 states:

“The measure of damages for
wrongful dismissal is prima facie the amount that the plaintiff would
have earned had the employment
continued according to contract
subject to a deduction in respect of any amount accruing from any
other employment which the plaintiff,
in minimizing damages either
obtained or should reasonably have obtained.”

In this case the plaintiff was
wrongfully retired at the age of 48 in 1994 when he should have
retired at the age of 55 in 2001.
He lost his salary for seven years
and those seven years should have been considered in calculating his
terminal benefits. The
pay slip exhibited shows the plaintiff was
getting a gross pay of K1 591 per month. No evidence has been given
as to how terminal
benefits would be calculated from that. And
counsel promised to file written submissions but he has not done that
up to date. I
will therefore only award the plaintiff the salary he
lost in the seven years. I award him K133 644 plus costs of the
action.

Made in chambers this ………day
of June 2006.

T.R. Ligowe

ASSISTANT REGISTRAR