Malcom Morgan Walubita & Others v The Attorney General & Another (Appeal 5 of 2016) [2018] ZMSC 316 (7 September 2018)

SELECTED1 JUDGMENT 'NO .. 3'7/2018 P 1339 I - THE SUPRE E COURT Ci il Iur'sdict'.on) AN WALU TA ,& 67 0 APPE,LLANT AND PER!,U. NENT s:EcRETARY_, MINISTRY OF ',NANCE ADD NATIONAL PLANNI,NG CORAM.· Ha n.aundu , · aon1a. and able: k On _., h p ·.em her O 18 and 7 h S ptcmber: 20 JJS . POR THE APP'ELLANTS .. r , Wis-hhnanga · ,M Wood FOR THE RESPONDENTS . N/ A JUDGME:NT KABUBA J , deli ered the Jud. J 2 P . 1.340 Cases referred t o : L Khali<l Mohi:trntd "The Attomey·Gcnernl {1 9&21 Z. R. 49 (SC). 2 . Brown v JJunn, f> R. 67 (ll. L). 3. Gnruunia Farrns Limited vs National Milling CompatLy Limited and Nuliunal . Milling Corporation Limited (2004) ZR l (SC). ~- ZCCM Jnvestrnents lfoluirlgs v Sichlmwi, Appeal No. t 72/2014 ]20171. 5. Khwe City Council vs Willi,am l\(g'uni f2005) ZR 57 fSC) . Legislation and other works TeferTed to: 1. The Constitution, of Zambia, Cap. 1, Article 124. 2. The Public Service Pension.\> Act, Sedion 39. 3. Public Service Commission Regulation S.1. No. 319 of 1965, n:gulation 43A "I . General Order 4,q und .q 5 S. Phip$on on Gvlcle1tcc, 1411' l.!:dltlo1,, Common Low Library The High Court delivered a ji.idgment dated 19 11• Octobe;, 20 l S, in ,vhich the learned High Court Judge found that there was a re organisation in the Ministry of Finance from 1994 up to 1999. Tbal as a result of that re-organisation, the appellants were retired irt the nntional interest, pursuant to Qeneral 0 .rdet 44 (b) and paid their retireinent benefits for their various periods of service. Accordingly , th<.: trinl oourt fi;Jrther fou nd that their claim for payment of the ,13 P .1 3 41 illfference between what they received and the pension bencfirs which could have bet!n due to them upo11 reaching the retiren1ent age of 55 could not be sustained and dismissed it. The appellants have ,,ow con1c to this Court on appeal against Lhat dismissal. The facts of the case are that, fhe appellants were on diverse dates c1nployed as civil servants in the Ministry of Finance under the Income Tax and the Ctistoms. and Excise Departinents. ln 1994; the said departments were abolished ,and the Zambia Reve111.1e Authority (ZRA) establis hed in t heir place. Following this developn1ent, lhe ni:,pellants wbo w~te nol tal<en on by ZRA wt!re referred back to the Ministry of FinaJ:tce for redeploy1r1e11t within the civil service, As it turned out, tl'le Ministry of Finance did not redeploy the appellants and, whilst waiting to know their fate, lhcy continued to receive theit salaries for a period of five years fro1n 1994 until January, 1999 .. On 14'" January, 1999 the appellanr.s were, r.hrough a lerter :>.uthored by the Acting Permanent Secretary, Public Service Me.nage,nent Division finally informed, that after consultatiohs and f'ollowii1g approval by the Public Service Comrnissior'l, they were P. 1342 n:tired fro1n the Civil Service with effect from 31•1 December, 1998. Tb1s was done pursuant to thee: ,provisions uf General Order No 44 (bl I\S read with Public Service Commission Regulation No . 4 3 A for the reorganisation of the Ministry of Finance, and the appellants were ta receive their reti:re1nent benefits as prescribed under section 39 of the Public Service Pensions Act The appellants contention on chis decision was tnat, si11ce n1ey ha.d already been reterred k1 1 he Ministry of Finance for redeployment, lhey could not be retrospectively retired in 1999, b,ised on a re-organisation that had taken place five years earhcr in I 994_ The appellants contended that, the respondents' said action was wrongful, unlawful arid in breach of their contracts of cn,ployrncnt. as tbey were arbiu·arity retired fro1n the civil service before they attained tht> retirement age o! 55. In the premises, the appellants churned that the retirement benefits paid to them under s ection 39 of the Public Service Pensions Act only amounted to a 111:irtial payinent and they were entitled to be paid the full rctin;:rn~nt • J :'i P.1 34 3 b<"nefits they would have received upon a ttaini11g the retirement age of 55 years. The appellants and otht:r similarly circ1,.unscanced e mployees llud i111tlally separatel)1 commenced their said actions in cause numbers 2003/H?/10[ 7 and 10011/HP/]048 , which in s1~bslance, were premised on the same fa cts and raised tne same issues. Ji'olloWi!lg a consolidation of the actions in !2008. an a mended statement of claim was filed by the appellarits, seeking several reliefs namely; a declaration that the appel!Eints be dee1ncd to have continued in cn1 ploymcnt until attaining the m a ndatory re-tfrem e nt age of 55 years; an order that tl1e appellants be paid aU terminal benefits which would have been due to tbem had they continued in employment unril their mandatoiy retirement age .of 55 years.; pension and other entitlements; terminal benefits in the sum of Kl9 597. 23 rebased; accrued leave pay; housing allowances as per the e,cisting conditi())')s of service; other enli.tlernents; damages for breach of contract; and interest on the stuns found due at the average short , I fl P. 1344 term deposit rate per annum, from the date of writ to the dll te- of judgment. In defence of those claims,. the respoadents' contention was that, the appella nts' reti r e rnent in the n a tional interest was n of retrospective as alleged, as the reoi:ganisa,t.ion of thP. public sel'. Vice had already commenced and t hat lhe provisions of General Order No. 44 (bl did apply to their situation. ·rhe respondents asked the triaL judge to take judiciaJ 11otice of (he StructuraJ Adjus tment Program (SAP) that influenced t he reorganisation that took place in th~ Ministry of Finance and, lliat this was done 111 the nat ional interest. The a.ppcllants' ret'iretnent was said lo be in accordance with the provisions of the law as contained in General Order No. 44, thel r employmen t contracts and the Civil Service guidelines. lt was furthei· conteoded that, the appellants acknowledged that they were:: paid what was due to them at the time of retirement and they were s till receiving pension payments at the time of their claln1. After considering the evidence presented a nd the arguments by ,J7 P.1345 counsel on both !'<ides, the Je:arned judge noted I.hat, 1t was common cause that the departments in which the appellants were employed wert' abolished in J 994, when the Zambia Revenue- /\uthorily was created. As a result, some employees s uch as the appellants, were refei red back to the Ministry of F'inancc for redeploy1nent into new roles, but this drd not h appen . The learn ed Judge also made a finding of f<iCt that, when this was not possible, illl the appellants received letters retiring them in the national interest The trial judge identified the issue lo be determined as. whethc.:r the appellants could b e :retired for reasons of national interest, in light of the prevailing con.rlitions of restructuring that existed in 1998 and 1 <J99. On the evidence before him , the learned judge found that, a1Lhough the appellants were refer-red back to the Ministry or Finance, they were never redeployed as t hey were nevc>r assigned any work. The learned judge observed tha t, the re was no direct evidence on how long the reorgani$atlon of tbe Ministry took, but that it was ·still on-going when the appellants were retired. That ha.ct the reo1gar1isal100 been cond1ltlt:d, all the appellants would have b<;cn J8 P.1346 pla.<.:ecl. jp .so111e clcpa1 tmenl in I he Ministly of Finance or elsewhere within the civil se 1cvice, The cotirt further found that, in light of uncontroverted evidence that reorganisation had continued until 1999 , the re:;pondents' decl,':lion to invoke thl! provisions of General 0Tders No. 44 and 45, retirrng the appellants in 1 he n ational interest, ca,nnot be faul ted as having been illegal. The lean1ecl judge rejected tb,e appellants' contention that the -rcspondent had e mployed other people in their positions and cited the case of Kh11,lid Mo hame~ v The Attorney Gene,;a.11 in finding that, the appellants had failed to bring any evirlenc::c to pro1te this allegation. The ltarned judge accordingly round, there was indeed a reorganisat ion that was taking place within the Ministry of Finance A l the t:itne the appellants were retired, and that the appellants we.re not entitled to have their dues calculate.cl as though they had reached ~tirement age. Pre1nised on his finding that the retirement was legal, AU the appellants c lnin,s failed and their matter w~)s rusmissed. Jg P.1'347 Dissatisfietl wlrli r.he findings made by the leai·ne<l Ju<lge,, the appellants fil~d nn E\DpeE\I to this Court, on the following grounds: 1. that the learned judge misdirected himself In law and fact when he dismissed all the appellants claims after finding that there was a reorgani,;ation of the Ministry of Finance between 1998 and 1999 contrary to the evidence on record; 2 , that the learned triai Judge misdirected himself in law and in t'act by failing to differentiate bet ween t.hce appellants and the plaintiffs under cause no. 2004/ HP/1048; 3 . that the learned trial judge misdirected himself in law and fact when he found that there was no evidence that the Ministry of Finance was still employing people in the samt ~apaoltie& as the appella nts, e.ontrary to the evidence on record \ 4. that the teamed trial judge misdrrecte d h imself It\ law and ract whep be failed to tiAd that the appellants. were not paid according to the provisions of section 39 of the Public Service Pensions Act . Heads or argu_rr1enl Wf!rt: filed by the appellants in support of their grounds of appeal. lJJ ground one, the appellants contended thal t11e lea coed judge misdirected hunselfby fincl1ng that there was a reorganisation <>f tl\e Minist 1·y of Finance between 1998 and 1999. It was argued that , the lea.rncd judge should not have relled on the Jrulurc by the respondents to give rhe m wnrk. clt1rii1g 1 he period they ,}10 P.1348 were redeployed, as the basis for finding that there was a restructuring exercise stiJJ 1..1nden'l<_ly. The a ppeJlants maintained tha t rhc (estn1ctul'lng only tock place in 199•l. when they were redeployect . The appellants relied on General Orde-r No.44 (b) in advancing the argun1en t that, an otTicer wonld only be required to retire for purposes of facilitating reorganisatio n of a Ministry to Which the officer belonged. For the said reason, the res pondents we.re precluded fro1n relying on a reorganisation that haci already taken place in 1994, to retire the appellants in 1999. In ground two, the appellants faulted lhe learned judge for nor differentlaOng between the appellants in tbe present a ppeal and the plaintiffs under cause number 2004 /HP/ 1048. That the letters on !he record of appeal were a ddressed to the plaintiffs and their Witnesses had testified that some of the appelh1nts had not received such letters. According to the appellants , this was an indication thar there was no reorganisation of the Mtnistry ofD'inance. ~J 11 P . 1349 In ground three, It waa contc:nded that the respondent bn.d continued tt1 employ people 1n the same positions held by the ~ppella11ts Tha t being the case, ii could nol he sa id ~hat there was any on-going ~organisation of th~ Ministry of Finance. The submissio11 wns tha t, the appellants' said evidence had remained unchaltenged and as a r u le, the court ought to lake such evidence as undisputed . Phipson on Evidence, 14t1, Edition, Common Law Library and Bro,vn v Dunni were cited in support of the submission. Lastly. on ground four, the appellants maintained that tl,e learned Judge misdirected himself in failing to find that the appellants had ueell underpaid . contrary to the provisions of Article 124 of the Constitution of Zambi a and Section 39 of the Public Service Pensions A.ct. It was argued that? according to U1e Constllutiou, pension benefits paid to a person must not be any less favourable t.han what they :ire entitled lo, as provided by the taw applicable at the elate that the benefits are granted. The appellants referred to section 39 (2) oft.he Public Service Pensions Act No. 35 of 1996 and argued that. the teamed judge failed 10 c:;1,ni;ict~r Lbe ~vidi:nc:c.- JJ i P.1350 showmg the computation of benefirs tr whlch, the appellants are entitled. Under that section, according to the appellai)ts, an officer was entitled to a ll benefits he would have received had hi> contiriued to bold the position .a,t r·he date of retirement_ In that regard, the appellants contended tbat, the learned trial judge did not consider that they were underpaid their retirement benefits in contravention of section 39 of the Act. Io their submis!\ions in response, the respondents on ground Vl\e referred to General Order 44, which forn1ed part of the conditions of st-rvicc of tht: appellants, in the Public Service, and the t·devartt part of which 1·eads as follows: "an appropriate commission may require an officer .serving on petcmanenf and pensionable terms o r service to retire; (a.) ...... ~., •• ~ (b) For the purposes of facilitating re-organisation of a minlst-ry or province to which h e belongs by which g1eater efficiency or economy may be affected.'' Counsel ro, the responden ts argl•ctl that, the above provision ,'l'llncs into plsy when there ls need for n.>·Ol'gan1sa don IJ1 a ministry • JL3 P.1351 or province. so as to achieve greater efficiency or economy, and was properly relied upon by the trial judge, as it is abundantly clear that cJ1t!re was ongoJng re-organisation in the Ministry of Finance. In s 1.1pport of that proposition , and as eviden ce of the re urga:r11sat1on. c:ounsel for lhe resr.iondent polnted to the fact that. up1Jn being referred back 1.o the Miniso-y of F'insnce the appellants continued to receive their salaries until 1998- 1999 , alfhough thP.y were not actually workln g. That the reason was that 1 there was no.where for the appellants to be re-deployed in the public service to continue their employmen(. On the appellants' contention based on letters appearing at pages 167 - 328 of rhe record of appeal, which were issu.ed to th~ plaintiffs under Cause No. 2004/ HP / 1048; that, the re-orga11isation of the Ministry of Finance only occurred in 1994; and the· proper retirements were done or ought to have been done in 1994, the respondents submitted that, those letters i.n fact confirm that the1-e was Indeed a 1·e-oi-ga.11isatlon per General Order 44 (b) .. Th11 said • . J 14 P .1352 !etrers \Vere wnlten to the plaintiffs in Cause No. 2004 /HP/ 1048 from 1995 to 1997 and were not issued in 1994 or at fh e same t ime. 1'hese letters according to the respondents. were conltn\:.lally issued m the said plaintiffs on varying dates but were all ba.sed on lhe f-act c:,f the abolish1nenl of their respective departments. So that, while the appellants only receive(J their letl'ers of n::iire1nent In ! 999, they were St1H affected by the same plight of the non-existent departments . The submission in this respect was that, notwithstandmg lhat lht: appellants received their letlers slightly later than the plaintiffs 1t1 Cause No. 2004 /HP/ L048, the fact reJnainecl that re-ot'ganisatJon of the Mioistry still continued. On ground two, the respondents submitted that the circumsuinces of U1c appellants a nd plaintiffs und er Cause No. 2004 /HP/ 1048 W!!re similar. as both parties were affected for the snt11e rCO$On, wbi<:h is the rt:•organisation of the Ministry of Finance. That the letter pl'oducecl by the appellants at page 5 1 of the record or appeal. cle&i.rly shows thO.t the appt.:llunls were no longer required • J15 P. 1353 because the Ministry ,was u ndergoing re-organi~ation, ·which was 1'he S:!lme reason givcl'l to the platntiffs under Cause· No. 200<4 /HP/ I 048. save for I he fact that, their letters came earlier than those of the appellants. Further, that the runended Statenrnnt of Claim dated 2nd September, 2013 at pages 37 - 41 of the record of a ppt.n. J. s hows that the appellants and the plaintiffs were siJnilarly circumstanced, he.nee, the consolidation of their claims before I.he trial judge. Counsel alluded to the facr. that, it is unclear as to why the ap pellants would now on appeal wo\nt to detftch the1nselvcs frorn Uie plaintiffs under Cause No. 2004/HP / 1048 . The submisslon was that, t11e tdal judge was un firrn groqnd wheh he considered them to b e sim ilarly circumstanced. On ground three, leaxned counsel for the respondeni:.s referred t(') the evidence of the appellants' first witn1:ss, PW 1. t hat, uthere wa.s lln re ,r,t ganisa.tion beca.u.se the Ministry of Finarice still e mploys s uppnrt staff," and :ilso that of PW2 at page '152 of the recotd or nppeal (li ne 13 - l6) were he said . " ... the post of assistant cleri.cal officer. The depo.rtme nt I used to wor/, for' is nor there in the Ministry. u • P.l 354 The submission was that, the witness PWl merely sugg<:-sted that the Ministry of Pinance was still employing support St<,1ff wil'llOul stating in which departn1cnts the support staff weJ·c being employed, nor their specific positions; while that of PW2 only shows that the department in which she was t!l'l1ployed no longer exists m the Mjnistry. thereby mak1ng it i.1npossible for unyone to be employed. The s u b1nission on that evidence was to the effect that, a re organisation d,~es not stop rhe MinJMty frorn lillit,g nevJJy created vo.cancies which could be for people with different skill sets from those of tJ1e appeUants . In any event, that the appellants d id not lead evidence: to prove the allegation thal other people were being hired by the Ministry in tl:Jcir pos itio11s, l1nder the san1e departments, The s ubmission oo that point was thal the perceived failure by the rcspondent.s to cross-examine or impeacJ1 the a.ppell~nts' testimony does not in itself cntil'le the <-1ppellar, ts to judgment. That the appellants had a duty to set up a good case supported by unimpeachable evidence to s~1ccecd_ The i;ase of Galaunia Farms Limited v National Milling3, was re.lied on as held tha,t, a p13i1'1tiff • Jl7 P. 1355 rn1.1st acb .. ~ally prove his case and failure to dt> so, does not entitle him to judgincnt on account of mere fa.ilun.: by the opponent to raise a defence, Finally, on ground four. attacking the rrial judge for having fai.lcd 'to find that the appellants were not paid according tu the provision s of section 39 ol the Public Service Pensions Act, counsel argued that, the appellants acknowledged they had been paid their dues at the lime they were ret1red in accordance with their conditions of service. The a p pellants ulso acknowledged they were paid part of their pen sion up to the date of retirement and now receive thei'r monthly pension payments. The appellants further accepted, U1a l they received payment in l iet1 or notice. At page 437 of-the record of appeal (starting from line 6)i however, PW 1 testified that their bl·nefits were partially paid . The appellnnts' ma.in contention was: that, lhey should have been paid as though they had worked up to thr. -age of 55 years, as their proper ai;e of retire!l1ent. Jn essence, co unsel for I.he n:sponden ts argued th,)t, U1e uppellants are seeking the court to t1rtier tl,at they be paid even for • ,J 18 P.1356 years that thc_y had not worked for in the public service. In this regard, it was argued that, a pension being a contributory benefit fro1n both the employee and employer, there can be no valid claim for entitlement to payment if the appellants have not made any contributions for Lhe years they have not actually worked and earned ,t wagt: . The submission in conclusion was that, since the appeUants were properly retired in line with their condiHons of service and paid their tennine l benefits for the period served, inclusive of three months' pay in liet.t of notice, they would not be entitled to any other payments. The case of ZCCM Investments Holdings v Sichimwi<l was relied upon for U,e submission. When tht' a1)peal ca111e up for hearing th~re was no appearance for the respondents. Counsel for the appellants who was prese11t LrHimated. that the state advocate handling the matter had logistical problems truvelling fron1 l..usaka. Having considered that. the respondents had 1lonelheless filed written heads of argument on record, we prucC!c:ded ln hear the appeal. Coun sel for U1e appellants· • . J 19 P.1 357 relied on his heads of argument which he briefly recounted ora lly , highlighting the 1nau1 areas of contention . 'rhe thrust of his arguments wus thal tl1 e ret.ire1nent of the appellants in the national interest was not only wrongful, but also unlawful as they ·were on pe1'n'lanent and pensionable terms of employment and their employment was terminated without notice . That the appellants nugh1 to hav,c been paid as if they ha d i:ittained t.b.t: retirement age. He maintained his assertion that a retirement in the national interest entailed payn1ent with fLlU benefits as if the person had continued to work until retirement age, and he placed reliance. on section 39 (2) of the Public Service Pensions Act. Counsel further contended that the retirement was unlawful as the appellants were retirl!d in 1999 which was long after the re ors;;iniRarion bad taken place in 1994, a.ncl he urged us to so find , We have considered the. ht!ads of argument and subinissions by counsel for the appellant, t11ose of the l'espondents, the Iegislabo n to which we were 1-eferred and case law cited, a..gai nst the evidence on record. Havin~ considered the grounds of appeal, we propose to deal • J20 P. 13 58 with grounds one and two 1ogt:ther ancl thi:n pro,:eed to oonsider ~rounds thrcte and fout' separately. The ilin1st o( this appeal appears to be.-. (i) whelhc:r the employme.111 of all the a ppellants was tern1Jns.ted for purposes of f~cilita.ting reotganisatiou w'it.hin the Mfnistt')' of Finance; (tl) whether arising from such termination, the appellants were entitled to retirement benefits they could have received on Elttaining the mandatory recire1nent age of 55 years~ and if &o, (iii) whether payment of their retire1nent l)enefits was aone In accorclance wiih U1eir respective conditions of senrice and the appltcable law. A perusal of the record of appeal shows that the· appellant's respecUve contracts were all terminated on diverse dates·. Some had \heir contracts tet·mlniued by thtee months' salary In lieu of uollce, -as evidenced by termination letters appearing at pages 234 to 328 of the record. In the case of the appe!lants, they were re-deployed to cbe Ministry of Finance, awaiting new postings which did not happ~n . following whkh lhe.y were formally retired pursuant to GeneJ'al Order •• ,J21 P.1359 44 lb). This Order p rovides for an officer serving on permanent and pensionable terms of service to retire for purposes of facilitating rcorganisalJC>rt of a Ministry or Province . to which he belo11gs. by wl~ich gre<\t~r cffic:ienr.y or economy may br. effected. As lt haµpcned, some of the affected etoµloyees had already bectn retjreu before lhe deployment of the appellants and received their re tirement letters in l 99'1. itself. This is evidenced by letters appearing fron1 pages 159 to 328 of various dates, but between 1994 and 1999. The effective dates for the backdated retirement nlso differed . For instance, those employees who received their letters in Ma rch , 1995 were deemed to have been retiTed by 31 st J anuaty, 1995. The appellan ts cannot therefore be heard to argue that, tl1e retirement was wholly conducted in 1994 itself. The record at page 163 also shows that, some employees who were referred back to the Ministry of Finance for re-deployment such as one, Eustace Musoka, were only retired in 1999. It is also nut corrt!cl lo claim tJ1at some of the appellants did not receive letters ns a!'gued by counsel for the appellants. Pagee 44u-447 of the 11ecord which were rt!lic:d upon, f'nr • ' • J22 P. 1360 this Brgutneal io fact disclose that, there was an admission by one of th,: appellanfs rhat, olher than individual letters that they' received, 1.hcre was also a block letter addressed to son,c of thero dated 14lh January, 1999. From that evidence, rt is clear to us, that for those: appdJants who we r'e retired for purposes of reorganisation , the respondents had carried out the reorg..1t1isa.tio11s within the confmes of the:: law. lu a.uy event, 11 does not assist U1e appella11ts to argue that the learned judge should have diJTerentla.ted the apf)eHants unde r cause no. 2003/HP/ 1'017 from those u11der 2004 / HP/ 1048 when the very reason that U1c: t wo causes weTe consolidated is that the two groups were 'similarly circumsLanced' and 'affected', by tht: ea rly termin ation of einployment. Tl\e only differences that should have been made is between those of the appellants whose employment. was tenninated by paymenL lri lieu of notice in accordance wiUi General Order 45; and those lilte tl,e ap peUants whose e1nployn1ent was terminated for pltrposes of re-organisation in the ministry under General Order 44 (b) as read wilh section 39 of th.e Public Service Pensions Act No. • , • • P. 1361 of 1996. Accordingly, the appellants did not substantiate their argument thar there was no reorganisation laking p lace from 1994 lo 1999, as the evidence on record sh~1ws the contrary. We agree wiU1 counsel for the respondents' that proof, that tbe reorganisation was sllll ongoing is confirmed by the evidence of PW2, who iestj/led that she received hct Jetter- of reti rement elated 1011o ,June, l 9CJ9 trt which she was deemed to have been retired on 31"' December, t99S., Lt is for tJ1e reasons given, that we find grounds unt! a11cl LWo o f the appeal faulting the trial court's frnding that the re-organisation cohtinued beyond 1994, and that it affected all the appellants, to have no merit. Cotning to ground three, t)1c allegation made by tlle appcdlante that the respondents bad contim .. 1ed to employ people In the same capacities held by themselves ls one that needed actual evidence establishing which people had been employed . Trte record shows, no such evidt!OCt! was led by tl?c <\ppcllants. The 1nere face that s post continuies to exist,, by itself, is not proof lhat others h1c,ve been , •• . J~4 P .. 1362 cmployc:d to replace lhose tblll wt'!r~ r~lired. We itqd ground tl1reC! ls equally devoid of merit This appeal is largdy h!ng~d on ground four, fbai is to say, whether the appellants to whom the provisions of the P.-u,blic Service Pensions Act No. 35 of 1996 applies, were paid in accordance with the formula found in section 39 .. A reading of section 39 (1) shows thar 1hc pensionable emoluments a re calcl)la1ed on the completed months of pensionable service. the age al which lhe officer retires anu the nurnber of co,uptececl pet!od& of thiee years, in pensionable seIVicc u1, to 'a maximum of ten·. ~ction 39 (l) reads as follows: Subject to the provisions of Part XJ and o{ subsection (21, 1ltl officer who retires on the abolition of his post or to facilitate an im provement by which greater efficiency or economy could be effected in the organisation of the part o f the service to which the officer belongs shall be entitled with effect from the date of the officer's refuen1ent to receive a pension calculated as follows; KAxB + KAxJ) C Whc.rc KA = his pensionable emoluments! B = th e number of oompl~ted months of his pensionable service; C ,. the age at which he retires, expressed in complete mont'l\s; • J2S P .1363 D = ttie number or completed perlods or three years in rus pensionable service, to a ma..x~mu.m or ten. Section 39 (2) states 1ha.t : A pension payable under subsection (1] shall not exceed· (al the pension calculated with reference to the salary scale oh which the officer was serving at the time of retirement, to which_ the officer would have been entitled if the officer had continued to hold the post the officer held at the date of retirement until the date on which the officer would otherwise have retired under the provisions of this Act having_ received all scale incremen.ts for <vhi<:h the officer would have been eligible by that date; (under!ii1lng r'or en1phasit1 supplied). f1·nm a reading of lbe above provisions, the formi da t.1sed to c:aleul~le lhe pensionable emoluments under section 39 (1) is the 'CJJmpleted months of pensionable service and the age at which the p erson reci,.es e xpressed in i;;omplcted months. A correct inteq,retation of section 39 (2) iu our 'llew. would be that, the pt~11sron payable unde1· sub~ection ( 1)1 dm.nut c,1<cc::~d the p~sion thgt the officer would have receivecl had he corttinued to bold bis post up lr'l tbc retirement age of 55. It does not mea.r1 thal rhey mu.sl b,:o P.1364 paid Wh;lt thry <'OUld have t>eeo enfiUe<l f1) on norin:.:i l rl!t iremer11 fl l a!!e 55. In rhe !!Venr, the appellants. w0re eurltlc<l ro pension benefits cnlcu lated at th~\ clate. they wf; rc retired, Gffcctivcly. th i:- rrnnnot include periods not worked which is what we gu ided against in 1 be case of Kitwe City Council v William Ng'uni5 , when we said th.at: "We are , therefore, dismayed by the order to aw~d 'terminal benefits equivalent to retirement benefits' the plaintiff WQ\ll<I b;3ve ea.rned tr he had reached retirement age .had he not been constructively dismissed. Apart from t,hc issue of constructive dismissal, wblch we have already dealt with, we have said in.,severnl of our de c isions that you cannot award a sala-ry or pension benefits, for that matter, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment." /underlining for emphasis only) We fin d no rea1oon lo deport fron1 that holding. The appellants ore thus onlycntltlcd to pensionable emoluments for periods uc!ually worked for . 1..1{') to the datts of their respe-ntjve retirements as indicated in their retirement letters and no more • J27 P.1365 All the grounds of appeal having failed, the appeal is cUsmissed with .each party to bear their own costs . . . .. . . . ; ~: ;;s!:t,} '.. SUPREME COURT JUDGE .. :7:.~f ... ~~~~·········· R, M. C. KAOMA SUPREME COURT JUDGE • • • • • • • • • • • • • , • • • • ••• ••,• I • 1 • • • ~ • • • • • • • • • J. K. KABUKA SUPREME COURT JUDGE