IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO. 598 OF 2004

BETWEEN

E.
CHAPASUKA……………..……………………………PLAINTIFF

-AND-

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

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Mapila
for the plaintiff

Kayuni
for the Defendant

Chulu 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 28^th
day of April 2005. During the assessment hearing two witnesses
testified, including the plaintiff.

The
claim before me was for damages for loss of salary, pension and
gratuity, which were supposedly due to the late Edward Chapasuka,
who
was apparently forced to retire from the police in 1997. It was the
testimony of Pw1, who introduced himself as the late Chipasuka’s

friend, that, to his knowledge, the deceased never applied for
retirement and that at the time that he was retired he was 54 years

old, six short of the mandatory retirement age for police officers of
60. Pw1’s evidence was also confirmed by the plaintiff.
In essence
then this was a claim unlawful dismissal from employment.

Having
failed to defend the matter, the defendants did attend the assessment
hearing. However apart from cross-examining the plaintiff,
they never
offered much during the assessment hearing except to concede to the
plaintiff’s claim. I should of course state that
their concession
was based on the fact that their client, the Police Service, was not
forthcoming with any information which could
have enabled counsel to
defend this claim; a development which I believe was unfortunate.

In
terms of the damages that the plaintiff is entitled to, it is well
settled law that the measure of damages for wrongful dismissal
is the
amount the employee would have earned has his employment continued
subject to any deduction accruing from other employment
which he had
or should reasonable have obtained in mitigating his loss (see Press
(Agencies) Ltd v Mkwawira t/a Chimwemwe Enterprises
9 MLR 110). In the present instance it was the plaintiff’s
submission that had her husband’s employment continued up to the

age of 60, he would have been a salary, pension and gratuity for six
years, which fact I do not doubt. However, apart from being
told that
the deceased was earning a salary of K56, 892 per annum and that at
the time he was a Chief Superintendent, there was
no evidence adduced
as to how much gratuity or pension he would have earned during the 6
years. In this regard therefore, we cannot
say that the plaintiff
proved her claim regarding the pension and gratuity. Indeed the lack
of evidence does also apply to the
issue of prospective salary
increments and promotions. On this note then the court cannot award
any damages as doing so would be
based on assumptions and
speculation. Having said this then, the court proceeds to only award
the plaintiff the sum of K341, 351
representing the salary that he
would have earned for the remaining six years of his employment.
Considering that at the time of
his forced retirement the deceased
was 54, it was the view of this court that he could not have been
reasonably expected to mitigate
his loss by getting another job as
most companies or organizations would be unwilling to employ a person
at that age, especially
in his field. In view of this I am not going
to make any deductions to the award. Suffice to say that the award is
subject to income
tax.

Finally
the plaintiff is awarded costs of this action, which are to be
assessed if not agreed.

Made
in Chambers this………….day of……………………………………2007

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR