The Respondents were, prior to retirement, employees of the Appellant Company serving in different capacities and based in Kitwe. The Respondents were not satisfied with the computation of their pension benefits and commenced an action claiming underpayment of terminal benefits, interest on the amounts found due and costs. Though the issue of loss of interest on the retirement benefits was not pleaded by the Respondents in their amended statement of claim, Ms. Sylvia Chali did state in her evidence that interest was lost because the accrued benefits were remitted in 2001 instead of 1998. The Appellant did not object to this evidence being admitted. Similarly, repatriation which was not pleaded by the Respondents, but was raised for the first time in evidence by Mr Anthony Chate. The Appellant did not object to this statement either. Although the trial judge dismissed all the claims by the Respondents, they were awarded repatriation and interest on accrued terminal benefits. The employer appealed.
Held:
- Where a party refers to evidence not pleaded, the proper course is for the other party to object immediately to this reference, thereupon it would be the duty of the court to decide whether or not it is necessary to grant an adjournment to the other party and whether to allow an amendment of the pleadings subject to an order for costs against the defendant.
- In considering whether an issue raised amounted to a new allegation or a mere variation of the original pleading, the test is that; if the allegations had been made upon the pleadings in the first place, namely allegations based upon the facts as they have now emerged, would the defendant’s preparation of the case, and conduct of the trial, have been any different?
- In applying the test to the appeal, had the Respondents pleaded lost interest and repatriation in the first place, the Appellant’s preparation of the case and the conduct of the trial would have been the same. The trial judge was therefore entitled to consider the testimony regarding the Respondents’ entitlement to lost interest on the accrued terminal benefits as well as repatriation.
- With regard to the claim for repatriation, the trial judge erred when she awarded the Respondents repatriation in the absence of evidence to substantiate the claim for repatriation. The Respondents did not adduce evidence showing that they were employed from a place outside of Kitwe as required by Section 13 (1) of the Employment Act Further, the Respondents did not produce the collective agreement in place at the time of their retirement, in support of their claim for repatriation.
- It is a settled principle of law that a successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted costs.
- Costs are awarded in the discretion of the court, such discretion is however to be exercised judicially. Costs usually follow the event. Having found for the respondents in the court below, the learned trial Judge properly exercised her discretion in awarding them costs because they were the successful party.
