Arthur Mwanamwelwa v Zambia Telecommunications Limited (Appeal 189 of 2005) [2007] ZMSC 37 (23 February 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 189/2005 HOLDEN AT LUSAKA/NDOLA (Civil Jurisdiction) BETWEEN: ARTHUR MWANAMWELWA (Suing as Administrator of the Estate of Peter Mwanamwelwa, Deceased) Appellant And ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED Respondent Coram: Chitengi and Mushabati, JJS. Kabalata, AJS On 6th September, 2006 and 23rd February, 2007 For the Appellant Mr. W. Mwale of Messrs Wilson Mwale & Company For the Respondents : (cid:9) Mr. S. Luwisha - Legal Counsel JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to: - 1. Kabwe Vs BP (Z) Limited (1995/1997) ZR 218 Statute referred to: - 1. Statutory instrument No. 171 of 1995 Paragraphs 7 and 8 of the Schedule. In this judgment we shall refer to the Appellant as the Plaintiff and the Respondent as the Defendant, which is what they were in the court below. The Plaintiff who is the son of Peter J2 - Mwanamwelwa (deceased) brought this action as Administrator of the deceased. The evidence led on behalf of the Plaintiff was that on 25th March, 1997 the deceased was employed by the Defendant as an Accountant on personal-to-holder basis as the deceased was not a professionally qualified accountant. (cid:9) The appointment put the deceased in salary scale Z7 which was is (cid:9) latter called UGS7. Sometime in 1996, on a date which is not clear from the evidence, the deceased requested for early retirement. In a letter dated 7th October, 1996 the Defendant accepted the deceased's request for early retirement and the deceased was accordingly retired with effect from 31st October 1996. In the letter accepting the deceased's request for early retirement the deceased's early retirement package was tabulated as follows:- (a) Gratuity of two months salary for each completed year of service. . (cid:9) (b) Payment of cash-in-lieu of leave days (c) Pension refund It appears the deceased was happy with the payment in (b) and (c) above but raised concerns about the payment under (a) above. According to the deceased he should have been paid gratuity of three months' salary for each completed year in terms of Statutory Instrument No. 171 of 1995. The - J3 - Defendant's reaction to this was that the deceased having been a member of a pension scheme run by the Defendant Statutory Instrument No. 171 of 1995 did not apply to him. On these facts the deceased commenced this action contending that in terms of Paragraph 8 of Statutory Instrument No. 171 of 1995 he was entitled to three (3) months pay for each completed year of service. (cid:9) In consequence of this, the deceased sought a declaration that his terminal benefits should be calculated at three (3) months pay for each year served. 4P The learned trial Judge in the Court below did not decide the case as pleaded. Instead the learned trial Judge decided the case on the basis that the deceased's basic conditions of employment were varied without the deceased's consent. Then quoting the case of Kabwe V BP (Z) Limited' the learned trial Judge held that the change of the deceased's basic conditions • of employment without the deceased's consent terminated the contract of employment. However, and rather surprisingly, the learned trial Judge held that since the deceased continued working he slept on his rights and was estopped and that by conduct he accepted the new conditions of employment. But the fact is that the dispute as to the formula to be used for calculating the deceased gratuity arose when the deceased was leaving the Defendant's employment. - J4 - Dissatisfied with the judgment of the court below the Plaintiff, who prosecuted this action on behalf of the estate of the deceased appealed to this court. The Plaintiff advanced two grounds of appeal. Both counsel filed detailed heads of argument and made brief oral arguments in support and opposition of the appeal. However, on account of the view we take of this appeal, it is not necessary for us to either recite the grounds of appeal or the arguments cited therein. Both counsel fell into the same error as the learned trial Judge who wrote a judgment on a case that was not pleaded. The grounds of appeal and heads of argument address a case of the deceased's basic conditions of employment having been unilaterally changed to his disadvantage by his employer. That was not the case before the court below. It is a matter of comment, and we think we are bound to comment, that • learned trial Judges and counsel must constantly read the pleadings for them to know the case being tried. We are now at large to decide whether on the case pleaded the deceased was supposed to be paid in terms of Statutory Instrument No. 171 of 1995(l ). The determination of this appeal, therefore, turns on the construction of the relevant provision in the Statutory Instrument No. 171 of 1995. -J5 - The relevant provisions in the Statutory Instrument No. 171 of 1995 are paragraphs 7 and 8 of the schedule paragraph 7 reads: - "7. Any employee who has served with an employer for not less than ten years shall be entitled to three months basic pay for each completed year of service: Provided that where an employer has established a pension scheme approved by the Minister, the retirement benefits shall be paid in accordance with such pension scheme, and that paragraph shall not apply." Paragraph 8 reads: - "8. An employee who retires in agreement with his employer before attaining the age of fifty-five years shall be paid retirement benefits in accordance with Paragraph 7 of this schedule." It is common cause that the Defendant had a pension scheme. • Indeed, the evidence clearly shows that the deceased was a member of the Defendant pension scheme. In the event, paragraphs 7 and 8 of the schedule read together put it beyond any dispute that Statutory Instrument No. 171 did not apply to the deceased. It is clear to us that the Plaintiff would like the court to read paragraph 7 and 8 of the schedule without having regard to the proviso to paragraph 7. We -J6 - cannot do that. The provisions are clear and they must all be read together. For the reasons we have given, and not for the reasons given by the learned trial Judge, we find no merit in this appeal and we dismiss it. Having regard to the facts of the case we make no order as to costs. PETER CHITENGI SUPREME COURT JUDGE C. S. MUSHABATI SUPREME COURT JUDGE 7' 1A. KA : ALATA AG/SUPREME COURT JUDGE