Bernard Musa Phiri and 139 Ors v Mulungushi University and Anor [2019] ZMSC 393 (9 August 2019)

ii IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: APPEAL NO. 1'/2O16 BERNARD MUSA PHIRI AND 139 0 Tz (cid:9) APPEI LANTS .,T (P ZAk AND MULUNGUSHI UNIVERSIT ATTORNEY GENERAL ESPO. DENT D RESPONDENT EME COO P. O. BOX 5Uc CORAM: MAMBILIMA CJ, MALILA AND MUTUNA JJS; on 7th May, 2019 and 9th August, 2019 For the Appellant (cid:9) Mr. B. Sitali, of Butler and Company standing in for Mutemwa Mutemwa, SC, of Mutemwa Chambers For the 1st Respondent : Mr. J. Musonda of P. M. Kamanga and Associates For the 2nd Respondent : Ms. C. Mulenga, Deputy Chief State Advocate, Attorney General's Chambers JUDGMENT MAMBILIMA, CJ, delivered the Judgment of the Court. CASES REFERRED TO: 1. THE ATTORNEY GENERAL AND THE MOVEMENT FOR MLI TIPARTY DEMOCRACY V AKASHAMBATWA MBIKUSITA-LEWANIKA, FABIAN KASONDE, JOHN MUBANGA MULWILA, CHILUFYA CHILESHE Ri PWEPWE AND KATONGO MULENGA MAINE (1993-1994) ZR 187 2. THE MINISTER OF INFORMATION AND BROADCASTING AND THE ATTORNEY GENERAL V FANWELL CHEMBO AND FIVE OTHERS (2007) ZR 3. EDITH TSHABALALA V THE ATTORNEY GENERAL (1999) ZR 139 4. KITWE CITY COUNCIL V WILLIAM NGUNI (2005) ZR 57 (cid:9) J2 5. MALCOLM MORGAN WALUBITA AND 67 OTHERS V THE PE MANENT SECRETARY, MINISTRY OF FINANCE AND PLANNING AND THE A' 'TORNEY GENERAL SELECTED JUDGMENT NO. 37 OF 2018 6. ATTORNEY GENERAL V MILLION JUMA (1984) ZR 1 7. CHILANGA CEMENT PLC V KASOTE SINGOGO (2009) ZR 122 S. INDO-ZAMBIA BANK LIMITED V MUSHAUKWA MUHANGA (2009) ZK 266 9. BARNES V JARVIS (1953) 1 ALL ER 1061 LEGISLATION REFERRED TO: i. NATIONAL COLLEGE FOR MANAGEMENT AND DEELOPMENT STUDIES (REPEAL) ACT NO. 18 OF 2005 ii. THE STATE PROCEEDINGS ACT, CHAPTER 71 OF THE LAWS OF ZAMBIA 1. INTRODUCTION 1.1 This is an appeal against the decision of Mwikisa J, dared 11th May, 2016, dismissing the Appellants' claim for retirement benefits and pension contributions for the unexpired period of their employment with the National College for Management and Development studies (hereinafter referred to as 'the College'). 2. BACKGROUND 2.1 The undisputed facts leading to this litigation are that the Appellants were employees of the College. The said College was dissolved and converted into a third public university known as Mulungushi University. 2.2 On 1st October 2007, the College Council eceived communication from the Permanent Secretary, Minstry of J3 Education, stating that the Secretary to the Treasiry had completed all the necessary arrangements to corn ert the College into a public university in accordance with Section 3 (2) of the NATIONAL COLLEGE FOR MANAGMENT AND DEVELOPMENT STUDIES (REPEAL) ACT' (hereinafter referred to as the "Repeal Act"). 2.3 The Permanent Secretary directed the College Council to give all members of staff separation notices of 90 days, indicating that they will be separated from their employment with effect from 31st December, 2007. The Permanent Secretary pointed out that the period of notice was in line with the employees' respective terms and conditions of service. The said letter, addressed to the College Principal, was couched in the following terms- RE: Notice of Staff Separation In accordance with Section 3 (2) of the National College for Management and Development Studies (Repeal) Act No. 18 of 2005 the Secretary to the Treasury has advised the Minister of Education to the effect that he has completed all arrangements to convert the foresaid into a 3rd Public University. To this effect, I am asking the Council to give a separation notice of 90 days to all members of staff regarding the separation of their services with effect from 31St Deceii ber, J4 2007. This is in accordance with the provision of respettive terms and conditions of service. Thus all employees of the College are required to be SCI arated and those who may wish to join the new university will be advised how to apply to the new university and be appointed on University terms of appointment. This will be accorc ing to their experience and qualifications. Lillian E. L. Kapulu Permanent Secretary MINISTRY OF EDUCATION 2.4 The College Council, in compliance with the directive, sat on 8th October, 2007 and issued separation notices to all unionised and non-unionised members of staff. The employees were informed that their last day of duty was 31st December 2007 and that details of the separation package would be communicated to them in the course of time. The notices read as follows - RE: NOTICE OF STAFF SEPARATION: YOURSELF I wish to inform you that in accordance with the provisions of the National College for Management and Development Studies (Repeal) Act Number 18 of 2005, the Secretary to the Treasury has now advised the Minister of Education to the effect that he has completed all the arrangements to cc nvert the foresaid College into a 3rd Public University. Consequently, Council at its sitting on 8th October, 2007 resolved to comply with the directive referred to above. Accordingly, I am writing to give you notice of separation from employment with the College, and your last day of duty will be 31st December, 2007. J5 However, in accordance with the Repeal Act, employee of the College wishing to join the new University will be free t, apply for appointment with the University when established. You will be advised of the details of your separation package in due course. NATIONAL COLLEGE FOR MANAGEMENT AND DEVELO"MENT STUDIES J. M. Bwalya PRINCIPAL 3 (cid:9) APPELLANTS' CASE IN THE COURT BELOW 3.1 One hundred and seventy-four (174) Plaintiffs moved tie High Court by way of writ of summons filed on 14th December, 2009. They later amended the writ of summons together with their statement of claim. They filed the amended process on 20th October, 2014. 3.2 The Appellants' contention, in the main, was that they had been placed on statutory retirement by virtue of Section 8 (2) and (3) of the Repeal Act and were retired or deemed to have retired under the terms and conditions of service whi .h they enjoyed with the College before it was dissolved. SecLon 8 (2) and (3) on which they relied provided as follows - 2. Where an officer of the Council is appointed to thc service of the public university - J6 a. the terms and conditions of service with the U: iiversity Council shall be no less than those the officer erjoyed in the service of the Council; and b. the officer shall be deemed to have been retir d under the terms and conditions of service of the Council. 3. Employees of the Council who are not engaged by the University Council under subsection 2 shall be retired under the terms and conditions of service of the Council. 3.3 The Appellants complained that contrary to the provisions of Section 8 (2) and (3) of the Repeal Act, the terminal benefits which they received were not based on their entitlements under their respective terms and conditions of service. That Cabinet Office had made some payments between August 2008 and 2009, but these fell far short of what tivy were entitled to and that consequently, they were collectively underpaid by a sum of K19,483,870,582.91. 3.4. The Appellants contended that they were also collectively owed unremitted National Pension Scheme Authority NAPSA) contributions amounting to K6,967,800,571.61 for the unexpired period of their service. 3.5. The Appellants also contended that under their ter.ns and conditions of service, they were entitled to remain on the payroll and continue to draw their salaries until all the J7 retirement dues were paid in full. That the said conditions of service were contained in Clause 30.0 of the ten:Tls and conditions of service for Academic and Senior Admin strative and Professional Staff dated 1st July, 2004; and Clause 20.1.4 of the Collective Agreement signed between the College Council and the National Union for Public Service Workers (NUPSW) on 1st December, 2005. The respective provisions read as follows - Clause 30.0 An officer enjoying these conditions of service shall remain in (sic) the payroll and continue drawing his or her basic salary after retirement until all the internal dues are paid to him or her in full. (sic) Clause 20.1.4 An officer enjoying these conditions of service shall remain on the payroll and continue drawing his/her basic salary, after retirement until full payment of leave days and repatrition. 3.6 The Appellants alleged that contrary to the prov:ions of Clauses 30.0 and 20.1.4 cited above, the 1st Respondent neglected or refused to keep them on the payroll, despite its failure to pay the retirement benefits in full. That consequently, they were collectively owed K22, 698, 405, 576.00 it, salary arrears for the period 1st January, 2008 to 31st De--ember, 2014. J8 3.7 They argued, on the basis of the said Clauses 30.0 and 20.1.4, that they were entitled to continue to receive their salar: es from 1st January, 2015, to the date when their retirement dues are finally settled in full. 3.8 In their pleadings, the Appellants claimed the following :eliefs- a. Payment of the total sum of K49, 150, 076, 730, 52 representing under-payment on retirement benefits, pension contributions and salary arrears up to 31st December, 2014. b. Payment of continuing salary arrears as from 1st January, 2015 to date of full and final settlement. c. Interest at bank rate on claims (i) and (ii) above from the date of the writ to date of full settlement. d. Costs of this action; and e. Further or other relief the Court deems fit to order. 3.9 To support their claim, the Appellants called only one witness, Bernard Musa Phiri (PW1), who testified that both uidonised and non-unionised employees were retired on 31St De.--ember, 2007 under Section 8 (2) and (3) of the Repeal Act. TIT at the 2nd Respondent made part payment towards their I rminal benefits but these payments were not computed in acc )rdance with their terms and conditions of service. 3. 10 PW 1 told the Court below that in addition to salary arrears under Clause 30.0, the non-unionised members of st,iff were claiming six months' prior notice under Clause 11.1 of their ig terms and conditions of service. That they were also (laiming retirement benefits under Clauses 11.2 and 11.6 of the conditions of service. Clauses 11.1, 11.2 and 11.6 pro'ided as follows - Clause 11.1 Notification When an employee is due to retire, the employer shall five six (6) months' notice without option of a salary. Clause 11.2 Normal Retirement Under normal circumstances male and female employees shall retire at the age of 55 years and shall accordingly receive a pension as stipulated under the Group Pension Scheme. Clause 11.6 Retirement Benefits In addition to the Group Pension Scheme, a member of staff who has retired shall receive five (5) months basic salary for each year of service as retirement benefits. The said benefits shall be based on the employee's basic salary. 3.11 PWltestified that non-unionised employees were also entitled to a long service award, repatriation and leave pay, none of which, he said, was accorded or paid in full. Further, that some non-unionised employees, such as himself, were entitled to owner-occupier housing allowance and coordinator a1lo.ance. 3.12 That in the case of unionised employees, they were (lalming salary arrears under Clause 20.1.4; six months' prior rotice of termination in accordance with Clause 20.0; and retirement benefits under Clauses 20.1.1 and 20.1.3 of the conditions of J10 service. Clauses 20.0, 20.1.1 and 20.1.3 referred to provided as follows - Clause 20.0 When an employee is due to retire, the employer shall give six months' notice without option of salary Clause 20.1.1 Normal Retirement Under normal circumstances male and female permaneit employees will retire at the age of 55 years and will accordingly, for those who are pensionable, receive a pension as stipulated under the Group Pension Scheme administered by the Zambia State Insurance Corporation. Clause 20.1.3 Retirement Benefits As the case may be employees retiring (both pensionable and not pensionable) shall in addition to their respective pension scheme (ZSIC and NAPSA) be paid 3.6 months' salary fo each completed year of service based on an employee's currt nt basic salary. 3.13 PW1 justified the Appellants' claim for benefits under lauses 11.2 and 20.1.1 of the respective terms and condi ions of service, which provided for normal retirement upon an employee attaining the age of 55, by arguing that thiy were supposed to have been treated as if they had retired at the age of 55. He told the Court below that the benefits shot Id have been calculated based on a factor of seven, which reprsented the number of years remaining before they attafr :ed the retirement age of 55. That the Appellants were thus, sec king an order to compel the 2nd Respondent to pay the difference in ill their retirement benefits, and also pay them NAPSA contributions and salary arrears. 4 (cid:9) THE 1ST RESPONDENTS' DEFENCE 4.1 In response to the Appellants' claims, the 1st Respondent denied that it took part in computing the Appellants' terminal benefits. It averred that at the material time, it was Government's intention to make a "clean" separation )etween the former employees and the new university Council, following the dissolution of the College. That a clean separation mtailed paying off terminal benefits to the former employ es and allowing the new university to recruit its own staff. 4.2 According to the 1st Respondent, 2008 was a transition year, and under the transitional arrangements, all former employees of the College were given one - year contracts from 1st January to 31st December, 2008. They signed the contracts, agreing to the terms on offer. That the terminal benefits for the c ne year contracts were settled in full. 4.3 The 1st Respondent denied that it was indebted to the Appellants or that they had suffered any financial JDss. Its position was that the Appellants' terminal benefii s were J12 handled and paid directly by the Permanent Secretary. Public Service Management Division (PSMD) at Cabinet Office. PSMD had custody of all their personal files. 5 (cid:9) THE 2ND RESPONDENT'S DEFENCE 5.1 The 2nd Respondent, on its part, confirmed that mone was released to settle the Appellants' retirement package an I that the benefits were correctly calculated in accordance wi h the provisions of the Repeal Act and the terms and condii i flS of service of each category of employees. That th 1 St Respondent, by virtue of the provisions of the Repeal Act, took over and assumed all the properties, rights, hal ilities and obligations left by the College Council when i was dissolved, including payment of the Appellants' sepa ation packages. The 2nd Respondent acknowledged that son-.c non- unionised employees were erroneously paid unde the Collective Agreement meant for unionised employees but that all under-payments had been rectified. 5.2 Evidence before the lower Court established that PSMD oversaw the restructuring process and a Committee se t up by the Secretary to the Treasury computed the retirement )enefits (cid:9) J13 for all the former employees based on the Repeal Act and the College conditions of service. That when calculat ng the Appellants' terminal benefits, PSMD took into accol nt the number of years of service and the basic salary at he exit stage. It was stated that the age limit was not COI sidered because it was not referred to in the Repeal Act or any'. here in the (cid:9) terms and conditions of service. That le\ e pay, repatriation pay and the severance package were paid in full. On the unremitted pension contributions, the 2nd Res'ondent was of the view that that claim should have been dircted to NAPSA or Zambia State Insurance Corporation (ZSIC). 5.3 The 2nd Respondent conceded that the Appellants shcLld have remained on the payroll but only up to 31st December, 2009 when their retirement benefits were fully settled. That he said payments were made under Clauses 11.6 (which provides for the payment of five (5) months basic salary for each yea served for non unionised employees) and 20.1.3 (which provides for payment of 3.6 months' salary for each completed year of service for unionised employees) and not Clauses .!-'..2 and 20.1.1, both of which provide for normal retirement i.pon an J14 employee reaching the age of 55. It was stated t -iat the separation package was not based on the conditions of service for noiiiial retirement because the majority of the ea ployees had not attained the statutory retirement age of 55 at the material time. The 2nd Respondent however, concedec. hat the employees were not given six months' prior notice of ret rement as stipulated in the terms and conditions of service. 6 (cid:9) DECISION OF THE COURT BELOW 6.1 After considering both oral and documentary evideno which was before her, and the submissions of Counsel, the learned trial Judge found as a fact that the Appellants were tired in accordance with provisions of the Repeal Act. That the main contention by the Appellants was that the terminal Denefits paid to them fell short of what they were entitled to UI der the two sets of terms and conditions of service for uniorii;ed and non-unionised employees. 6.2 (cid:9) The Court also found as a fact that the severan ie pay, repatriation and leave pay were settled in full. That th service bonus was paid to those who had clocked 10 years or it ore and J15 the owner occupier and coordinator allowances were paid to those who were entitled. 6.3 The Court, however, found that the 2nd Respondcnt had omitted to pay salaries until all retirement dues were sdtled in accordance with Clauses 30.0 and 20.1.4. Consequcr tly, the learned trial Judge ordered the 2nd Respondent to py each Appellant salary arrears from to 31st December, 2007 when the Appellants were retired up to the date of payment. 6.4 As regards the calculations for the severance pay, the earned trial Judge came to the conclusion that each category of staff was properly paid under Clauses 11.6 and 20.1.3, which entitled non-unionised employees to 5 months' basic salary and unionised employees to 3.6 months' basic salary for each year served; That this was in addition to the group r ension scheme. The trial judge, however, rejected the App llants' computation for salary arrears based on a factor of 7 years. She found that the benefits assessment forms and iyment vouchers on record showed that most of the paymer ts had been made by the end of 2009 or by 2010 and that paying the J16 Appellants for the period not worked for would am unt to unjust enrichment. 6.5 The learned trial Judge held that although the conCIA ions of service provided for retirement at 55 years in normal circumstances, the Appellants' retirement was not normal as it was through mutual separation or by operation of l (cid:9) under the Repeal Act. She noted that most of the Appe11ant. -iad not yet attained the statutory retirement age of 55 years at 1 he time of their separation. In her view, it would be a fallacy t assert that the Appellants ought to have been retired as if t] iey had reached the normal retirement age of 55 years. The learned trial Judge then calculated the salary arrears fcr each Appellant by multiplying the number of months that had remained unpaid by the basic salary, giving a global sum of K3,497,664.59 for all the Appellants, with interest t short term bank deposit rate, with effect from the date of tlu writ of summons to the date of judgment, and thereafter, at the current Bank of Zambia lending rate, to the date of pavi -ient. 6.6 (cid:9) Coming to the claim for NAPSA contributions, the Co,, trt held that the Appellants should have made their claim against J17 NAPSA, which was an autonomous statutory body, es bushed by an Act of Parliament. 6.7 At the conclusion of the matter, the Court below held hat the Appellants had proved their case on a balance of probabilities only insofar as the salary arrears were concerned. All the other claims failed. 7. (cid:9) THE APPEAL AND GROUNDS OF APPEAL 7.1 Out of 174 Plaintiffs, 140 of them were aggrieved with the determination by the Court below. They have now appaled to this Court, advancing three grounds of appeal. These ar that - 1. The learned Judge in the Court below, having I eld that the Appellants were retired in line with Act ND. 18 of 2005, misdirected herself in law and fact by not granting them retirement benefits, in line with their conditions of service. 2. The learned Judge in the Court below misdirecte 1 herself in law and fact by holding that the underpaymei t of the Appellants relates only to the continued salaries, and not retirement benefits. 3. The learned Judge in the Court below misdirectei herself in law and fact by limiting the period of pay nent of continued salaries, when the retirement benefits have to date not been paid in full. 7.2 In support of this appeal, the Appellants filed written Leads of argument on 21st July, 2016. At the hearing, Mr. B. Sitali, appeared on behalf of the learned Counsel for the Appellants, J18 Mr. Mutemwa Mutemwa, SC. He relied on the filed ar uments and augmented them with oral submissions. 7.3 In the heads of argument, the three grounds of appeal were argued together. Counsel pointed out, in the said hels, that the 140 Appellants were employees of the College, WL ch was established under the NATIONAL COLLEGE FOR MANAGEMENT AND DEVELOPMENT STUDIES ACT NO. 21 OF 1972. That when the Government decided to coriert the College into a public university, it enacted the Repal Act, whose object was to - "Repeal the National College for Management and Development Studies Act, 1972 and to provide for mat-1 ers connected with and incidental to the foregoing." 7.4 That among the issues the Repeal Act provided for, v as how the members of staff would be treated following the dis ;olution of the College. The Minister was clothed with the power to dissolve the College Council on the advice of the Secrtary to the Treasury under Section 3 (2). The winding up procdure is outlined in Section 4. 7.5 Counsel submitted that the Permanent Secretary duly advised the College Council, in her letter dated 1st October, 2007, that J19 the Secretary to the Treasury had completed all the r cessary arrangements contemplated under Section 3 (2) of the Repeal Act. That the Permanent Secretary wrongly claimed in the said letter, that giving the Appellants 90 days' separation notice would be in compliance with their terms and co:ditions of service, because this position was contrary to Clauss 11.1 and 20.0 respectively, both of which required that a member of staff who was approaching retirement, should be given six months' prior notice. Counsel submitted that the separation notices issued on 8th October, 2007 indicating that the Appellants' last working day was 31st December, 2(07, fell below the prescribed six months' notice. 7.6 Counsel submitted further that following the issuance of the separation notices, the Appellants stopped work rn 31st December, 2007 and they were immediately removed fom the payroll. He contended that the Appellants' removal from the payroll was premature and a violation of Clauses 30.0 and 20.1.4 as their retirement benefits had not been paid in full. According to Counsel, the Appellants should have been kept on the payroll from 1st January, 2008 and should have co:tinucd J20 to be paid their monthly salaries until all the mone due to them were settled in full. 7.7 Counsel also submitted that after advising the Appelli its that their last working day was 31st December, 2007. the 1St Respondent used wrong computations to calculat their benefits. He went on to state that this error was conc eded to by the DWI and it was highlighted in the Auditor G.neral's Report exhibited at pages 653 - 655 Volume 2 of the R cord of Appeal. That it was only after the Appellants protestec hat the 1 St Respondent effected further payments but that these additional payments still fell short of the Appellants' entitlements. 7.8 Another point raised by the learned State Counsel 'as with regard to the interpretation of Section 8(3) of the Repea Act. It provides: - "3. Employees of the Council who are not engage(' by the University Council under Subsection (2) shall be retird under the terms and conditions of service of the Council." He urged us, when construing the words used in this Section, to adopt and apply the literal or grammatical rule of interpretation as we did in the case of THE ATTORNEY J21 GENERAL AND THE MOVEMENT OF MUL'f PARTY DEMOCRACY V AKASHAMBATWA-LEWANIKA, :?ABIAN KASONDE, JOHN MIJBANGA MULWILA, CHLUFYA CHILESHE KAPWEPWE AND KATONGO MULENGA MAINE' where we stated that- "If the words of a statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense". 7.9 Counsel also invited us to look at our later decision, in the cases of THE MINISTER OF INFORMATION AND BROADCASTING AND THE ATTORNEY GENERAL V FANWELL CHEMBO AND FIVE OTHERS2 and EDITH TSHABALALA V THE ATTORNEY GENERAL'. In the TSHABALALA case we held that - "The fundamental rule of interpretation of a statute is that it should be construed according to the intent expressed y Parliament.. . This means that the literal and grammatical meaning will prevail where there is nothing to indicate or suggest that the language should be understood in any other sense." 7.10 To further drive his point, Counsel drew a parallel with our interpretation of the word "recommendation" in the case of MINISTER OF INFORMATION AND BROADCASTING SERVICES V FANWELL CHEMBO AND OTHERS' in which we J22 opted for the natural and ordinary meaning of t I word 'recommendation' when we said - "In our considered view, the foregoing meanings of the word "recommendation" do not lead to some result which Ca inot reasonably be supposed to have been the intention of the legislature. It is and was unnecessary to look for some other possible meaning of the word; the natural and ordinary meaning suffices." 7.11 After this voyage through our earlier decisions, Counsc I finally zeroed in and submitted that, in the same way, the word "retired" in Section 8 (3) of the Repeal Act must be co astrued in its natural and ordinary sense. That not doing so WO ild lead to a result which cannot reasonably be supposed to have been the intention of the legislature. Further, that it was unnecessary to look for some other possible meaning of the word. In his view, Section 8 (3) should be construed to mean that the Appellants were to be retired as if they had reached 55 years. That given the express nature of the statutory provision, the learned trial Judge erred when she remarked that it would be a fallacy to assert that the Appellants ought to have been retired as if they had reached the normal retirement age of 55 years. J23 7.12 Learned State Counsel stated that since the Appellants were to be retired in accordance with their conditions of service, the relevant provisions applicable to non-unionised employ( es were both Clauses 11.2 and 11.6 and for unionised staff, aso both Clauses 20.1.1 and 20.1.3. 7.13 He posited that since the Appellants were supposed to -etire at the age of 55, it followed that they should be treated a having retired as such and that their retirement benefits should have been calculated accordingly. He submitted that the correct formula for computing the benefits required taking each employee's age; subtracting the number of years of each employee before reaching 55 years (this was to be ca1cuated by deducting the age as at 31st December, 2007 from 5) and; adding the resultant figure to the employee's period of service, to arrive at the total number of years served. That cEch year served must be multiplied by 5 months' or 3.6 months' basic salary under Clauses 11.6 and 20.1.4 respectively to •rrive at the actual terminal benefits. 7.14 Counsel submitted that by not calculating the termina )enefits in the manner he had suggested, the 1t Respondent urcierpaid J24 the Appellants and contravened the provisions of Sec:i'n 8 (3) of the Repeal Act. He contended further, that the leari ed trial Judge misdirected herself when she only focussed n and confined herself to the salary arrears and yet the A2 )ellants were entitled to much more. 7.15 Augmenting the written submissions, Mr. Sitali submLed that there were different types of retirement under the terms and conditions of service, that is; normal retirement, early retirement, retirement through death, and, retirerr ent on medical grounds. That the Act under which the Ap.ellants retired simply stated that they would be retired' in acc)rdance with the conditions of the Council. He argued that none of the Appellants volunteered to be retired, and as such they could not be said to have proceeded on early retirement. That rather, they were terminated by operation of law. In his view, in the absence of suitable conditions, the Appellants shculd be deemed to have served up to attaining the age of 55 years under Clauses 11.2 and 20.1.1 respectively. 7.16 On the aspect of unjust enrichment, Mr. Sitali submit ed that this principle was not absolute as it can be overric den by J25 statutory provision. That if the law makes a provision for one to be deemed to retire at the age of 55, then the prr ciple of unjust enrichment does not apply. He sought to xive an illustration on the basis of Article 189 of the Constitn ion, (as amended in 2016) which provides that where a Dension benefit is not paid on a person's last working day, the person shall stop work but their name shall be retained on the payroll until payment. We reminded Counsel that the parties in this case had a similar provision in their employment contracts. It was apparent to us that Counsel had not read th. many authorities that this Court has handed down on unjust enrichment, including the often quoted case of KITWE CITY COUNCIL V WILLIAM NGUNI4. 8 (cid:9) 1ST RESPONDENTS' HEADS OF ARGUMENT 8.1 Mr. Musonda, the learned Counsel for the 1st Resçondent, relied entirely on the written heads of argument filed. on 30th April, 2019. In response to the Appellants' first ground of appeal, that the Court below misdirected itself by not ranting the Appellant's retirement benefits in line with their c.i iditions of service, Mr. Musonda submitted that the lower Cou t made a J26 finding of fact that the Appellants' severance pay, rep triation and leave pay were properly paid in accordance with 1auses 11.6 and 20.1.3, of their conditions of service respectiely and that these findings had not been challenged in this appeal. That having not challenged the findings of fact, the Ap .jellants cannot now raise issue with the payment of their terminal benefits. He argued that making an order to pay terminal benefits when they had already been paid would amount to unjust enrichment. To support his argument, he relied on the case of MALCOM MORGAN WALUBITA AND 67 OTHERS V THE PERMANENT SECRETARY, MINISTRY OF FINANCE AND PLANNING AND THE ATTORNEY-GENERAL5 wiere we held that the Appellants in that case, could only 'e paid terminal benefits for the period worked for. 8.2 On the Appellants' second ground of appeal, which is hat the Court below erred when it held that the underpayment s of the Appellants related only to continued salaries ad not retirement benefits, Mr. Musonda submitted that this ground of appeal was baseless. He stated that the only underçayment disclosed by the evidence, as rightly found by the learned J27 Judge, related to salary arrears. On the Appellant's ai gument that computation of the benefits should have tak m into account the remaining period before attainment of 5 /ears of age, Counsel submitted that there was no Justification to include the period that the Appellants had not worked for. 8.3 Coming to the third ground of appeal, that it was wrong for the Court below to limit the period for paying salary arreais when the retirement benefits had not been paid in full evej up to date, Mr. Musonda submitted that the limitation was ustified because there was uncontroverted evidence adduced at trial, that most of the payments had been made by 2009 cr 2010. He supported the Court's dismissal of the 7 years faccr which the Appellants sought to employ in the computation c f salary arrears, arguing that it was not supported by law or the Appellants' conditions of service. 9 (cid:9) 2 ND RESPONDENT'S HEADS OF ARGUMENT 9.1 (cid:9) Ms. Mulenga, the learned Counsel for the 2'' Respondeit, filed heads of argument on 26th April, 2019 which she au mented with oral submissions in response to issues raised by Mr. Sitali. She argued all the grounds of appeal together. J28 9.2 Responding to the Appellants' argument that their retirement benefits were not fully paid, Ms. Mulenga submitted ihat the Appellants' dues were fully paid in accordance with thc Repeal Act and Clauses 11.6 and 20.1.3 of their conditions of;ervice. 9.3 Coming to the argument that the Appellants were entitl(d to six months' prior notice, Ms. Mulenga submitted that the Appellants had constructive notice of their pending retirement, as there was an ongoing process of converting the College into a public university, which would ultimately lead to the dissolution of the College Council. That the Appellants were well aware that there was going to be substantial cI nges to the College and to their own circumstances. That Sect on 8 of the Repeal Act stipulated how members of staff W )uld be treated at the end of the process. Further that the Repeal Act came into force in 2005, while the separation notices vre only issued in 2007, meaning that for at least two yers, the Appellants were aware of their impending fate. That at any rate, the six months' notice period, which the Appellar ts were now seeking, would have been mythical because they were J29 aware of the fact that the College would cease to t xist by operation of law. 9.4 Counsel further submitted that the Appellants were pEid their dues except for the pension claim which the Court correctly observed that it should have been made against NAPSA. 9.5 Regarding the interpretation of Section 8 (3) of the Repeal Act, Ms. Mulenga submitted that in ordinary parlance, the word "retirement" in itself would not entail that one had attained the statutory retirement age of 55. She argued t- at the Appellants' circumstances were peculiar in that they were retired by operation of law. She further submitted that the use of the words "under normal circumstances" in Claus s 11.2 and 20.1.1, made it clear that the age of 55 years was deemed as normal retirement but that anything outside Df that provision was not a normal retirement. That even th3 1lgh the Appellants were insisting on this one provision, the e were other terms and conditions of service on retireme it. She argued that the interpretation of a statute should noi e done in such a manner as to avoid common sense. To supç ort this contention, Counsel cited the case of the ATTORNEY J30 GENERAL V MILLION JUMA6 in which we quoted the opinion of Lord Goddard CJ, in the case of BARNES V JARVIS9 where he stated that - "A certain amount of common sense must be applied in construing statutes. The object of the Act has to be considered." 9.6 On the notion that a proper interpretation of Secticn 8 (3) involved calculating the Appellants' benefits as thouh they had worked up to the age of 55 years, Ms Mulenga submitted that such a notion was doomed to fail and was legally untenable, in line with the case of MALCOM M. DRGAN WALUBITA AND 67 OTHERS' in which we held that terminal benefits, in that case, should only be paid for the period worked for. Counsel submitted that DW 1 's testimony was to the effect that the Appellants' terminal benefits were caculated based on the number of years each individual employee had worked; and that the factor of 7 years which was ised to determine salary arrears was wrong as the Appellants cannot be paid for the years for which they had not worked. S ie went further to state that the argument as to whether the Ap ellants should have been deemed to have retired at 55 years need not J31 arise because they were retired by operation of law, co:T1 ;equent upon which all the Appellants were correctly paid their benefits under Clauses 11.6 and 20.1.3. She maintained t -iat the Appellants had constructive notice of their pending separation for two years before the college was transformed into a university. 9.7 With regard to the salary arrears, Ms. Mulenga agreed with the Court's finding that the Appellants were entitled to arre trs only up to 2009. 9.8 In reply to the arguments by the Respondents, M:. Sitali maintained that the Appellants were entitled to six nonths' notice in writing or salary in lieu of notice and that intil all benefits and arrears are paid, the Appellants should n ain on the payroll. 10 DECISION OF THIS COURT 10.1 We have considered the evidence on record, the Lclgment appealed against, the submissions by Counsel and th issues raised in this appeal. 10.2 It is common cause that the Appellants were retire under Section 8 (2) and (3) of the Repeal Act, whose object w s to set J32 in motion the dissolution of the National CoJege for Management and Development Studies and pave way for the creation of Mulungushi University, as a third public university. 10.3 It is common cause that the Repeal Act provided tat the employees would be retired under the terms and cond tions of service which they enjoyed with the College Council. 1 hat the Appellants' employment contracts at the time of the dissolution, were governed by the terms and conci ions of service for Senior Academic and Professional Staff fr non- unionised employees and the Collective Agreenm nt for unionised members belonging to the National Union o Public Service Workers. 10.4 It is also common cause that the Appellants were paid a severance package in 2009 in accordance with Clau';e 11.6 and Clause 20.1.3 respectively which, for case of rcfernce, we reproduce hereunder - Clause 11.6 Retirement Benefits In addition to the Group Pension Scheme, a member cf staff r for who has retired shall receive five (5) months basic sah each year of service as retirement benefits. Clause 20.1.3 Retirement Benefits As the case maybe employees retiring (both pensionaL and not pensionable) shall in addition to their respective r e asion J33 scheme (ZSIC and NAPSA) be paid 3.6 months' salary fo: each completed year of service based on an employee's current basic salary. 10.5 In our view, this appeal turns on the meaning tha, we will ascribe to Section 8 (2) and (3) of the Repeal Act. Thc issues which we must resolve are - 1) whether under Section 8 (2) and (3) of the Repeal Ac:, it was the intention of the legislature to deem the Appellan.: to have retired at the age of 55; 2) whether by virtue of their conditions of service, the Lj pellants are still owed terminal benefits; and if in the affirmativ ; 3) whether the Appellants should continue to receiv salaries until all their dues are settled. 10.6 In this regard, we propose to deal with the first and second grounds of appeal together because they have rais.c issues which speak to the first and second questions. The Ap1 ellants, in support of the first and second grounds of appea, argued that the learned trial Judge erred in not granting them 3enefits in accordance with their conditions of service and appo tioning the underpayments. 10.7 Mr. Sitali, augmenting the Appellants' filed h.--ads of argument, spiritedly argued that Section 8 (3) in pa ticu1ar, must be construed, in its natural and ordinary sense, o mean that the Appellants were to retire as if they had atti ied the statutory age of 55. Ms. Mulenga and Mr. Musonda on the J34 other hand, argued that the Appellants cannot be paid for the period for which they had not worked and that doing si would amount to unjust enrichment. Ms. Mulenga submitted hat the word "retirement" in common parlance did fbi imply attainment of the statutory age of 55. 10.8 In our view the provisions of Section 8 (2) and (3) of thc Repeal Act are explicit and unambiguous. They read - 2. Where an officer of the Council is appointee to the service of the public university - c. the terms and conditions of service with the Uiiversity Council shall be no less than those the officer erjoyed in the service of the Council; and d. the officer shall be deemed to have been retir d under the terms and conditions of service of the Counci.. 3. Employees of the Council who are not engaga by the University Council under subsection 2 shall bc retired under the terms and conditions of service of the Council. (underlining ours) 10.9 These provisions do not suggest that the Appellants slould be treated as having retired at 55 years of age. They provide simply that employees of the College would be re :ired or deemed to have retired under the terms and co:ditions contained in the two sets of documents referrec to at paragraph 10.3 above. Clauses 11 and 20 of the re pective documents contain provisions on retirement of non unionised staff and unionised staff. J35 10. 10 In our decision in the case of the ATTORNEY GENERA iLL AND THE MOVEMENT FOR MULTIPARTY DEMOCRCY V AKASHAMBATWA MBIKUSITA-LEWANIKA AND OTHERS', we stated that if the words of a provision are pre e and unambiguous, no more can be necessary than to expo md the words in their ordinary and natural sense. 10.11 Further in the case of the ATTORNEY GENERAL V V ILLION JUMA6 we cited the words of Lord GODDARD, CJ in tl case of BARNES V JARVIS9 where he stated that - "where the language of an Act is clear and explicit we must give effect to it, whatever may be the consequenc as, for in that case the words of the statute speak the intention of the legislature." 10.12 In the case in casu, no other meaning can be ascribed (cid:9) to Section 8 (2) ad (3) of the Repeal Act, other than that the Appellants would be retired under their terms and cor ditions of service with the Council. One cannot, by any srr tch of imagination construe Section 8 (2) and (3) to provide tiat the Appellants should be deemed to have retired at the ag of 55. 10.13 Mr. Sitali however, argued before us that there were different categories of retirement in the Appellants' tenns and conditions of service and that none of them were suitable to J36 meet the Appellants' circumstances. According to Co i isel, the closest, and perhaps the only provisions nearer to ad ilressing the Appellants' situation were in Clauses 11.2 and 2€ .1.1, on normal retirement. They state - Clause 11.2 Normal Retirement Under normal circumstances male and female employef;s shall retire at the age of 55 years and shall accordingly receiie a pension as stipulated under the Group Pension Scheme. Clause 20.1.1 Normal Retirement Under normal circumstances male and female perman: it employees will retire at the age of 55 years and will accordingly, for those who are pensionable, receive a pension as stipulated under the Group Pension Scheme administered by the Zambia State Insurance Corporation. 10.14 Both provisions refer to retirement 'under normal circumstances.' Going by these provisions, it is only when retirement is 'under normal circumstances' that an e:nployee shall retire at the age of 55. In this case, the Ap ellants were not retiring 'under normal circumstances.' Their retirement was by operation of law, as a result of the dissolution of the College to pave way for the crc ition of Mulungushi University. In our view, clauses 11.2 and 20.1.1 do not provide for the retirement of an emplo. Tee who has not attained the age of 55. In this case, the evidence on J37 record, which was not challenged at trial, shows that none of the Appellants had clocked the retirement age of 5. at the material time. The oldest Appellant was 53 years oH having been born in 1954, and was therefore, two years s-1,, of the prescribed retirement age of 55. 10.15 Coming to the second issue, we did state in the case of KITWE CITY COUNCIL V WILLIAM NGUNI4, that )ension benefits cannot be paid beyond the period worked for. We said- "You cannot award a salary or pension benefits, for tha matter, for a period not worked for because such an award has not been earned and might be properly termed as uajust enrichment." In a more recent case of MALCOLM MORGAN WE. LUBITA AND 67 OTHERS V THE PERMANENT SECI ETARY, MINISTRY OF FINANCE AND PLANNING AND THE ATTORNEY GENERAL5, the Appellants, in that case, were reverted to the Ministry of Finance pending further redeployment. This followed the dissolution of the Inc( ,me Tax, and Customs and Excise departments, to pave wa for the establishment of the Zambia Revenue Authori :y. The Appellants were never re-deployed but were kept on th payroll J38 from 1994 until 1999 when it was decided to reti:e them under General Order No. 44. The Appellants argied that under Section 39 (2) of the Public Service Pension Act, their retirement in national interest entailed payment of full benefits as if they had continued to work until the retirement ae of 55. We held as follows - "A correct interpretation of section 39(2) in our view wuld be that the pension payable under subsection (1) cannot e:ceed the pension the officer would have received had he coninued to hold his post up to the retirement of age 55. It does aot mean that they must be paid what they could have bee: entitled to on normal retirement at the age 55. In the event, the Appellants were entitled to pension benefits calcuhted at the date they were retired. Effectively, this cannot mci ide periods not worked for, which is what we guided again ;t in the case of KITWE CITY COUNCIL V WILLIAM NGUNI". 10.16 In the case in casu, we echo our earlier findings th-it there was no direction by the legislature that all former empi yees of the College should be deemed to have retired at 55 Tears of age when they had not attained the age. The Act simply provided that the officers should be 'deemed to have retired under the terms and conditions of the Council.' The c:uestion that remains to be resolved is whether there are, oth r terms and conditions of the Council under which, the Atmellants J39 could be deemed to have worked up to the age of , other than clauses 11.1 and 20.1.1 on normal retirement. 10. 17 After perusing the relevant terms and conditions o service, we are satisfied that the appropriate provisions which should be considered, in this respect are clauses 11.6 in r ;pect of non-unionised employees and 20.1.3 for unionised s aff. We have reproduced these provisions in paragraph 10.4 above. The two provisions essentially provide for payment of oenefits calculated according to the years served. This is in addition to their entitlement under their respective pension schem-s. The Appellants were paid according to these clauses. This, in our view, is in accordance with our earlier decisions in oth,r cases including that of KITWE CITY COUNCIL V WILLIAM NGUNI4 that salaries and pension benefits should not be awided for periods not worked for as this may be termed to be unjust enrichment. 10.18 From the foregoing, we, therefore, find no basis to ir1terfere with the learned trial Judge's finding of fact that the Appellants were correctly paid under Clauses 11.6 anci 201.3 J40 and for holding that it would be a fallacy and unjust enrichment to treat the Appellants as having retired a.. 5. 10.19 Coming to the second question, as to whether the Ao )ellants were entitled to any other benefits, Mr. Sitali argued hat the Appellants were entitled to six months' notice in accordance with Clauses 11.1 and 20.0 of their conditions of servce, and not 90 days, as indicated by the Permanent SecretarY in her letter dated 1st October, 2007 and the notices of separation. Ms. Mulenga, though conceding that the Appellan s were entitled to six months prior notice, forcefully argued hat the former employees had constructive notice of two years from the time that the Repeal Act came into force in 2005 up to 2007, when they were retired and the College w finally dissolved. 10.20 We have examined Clauses 11.1 and 20.0. The two clauses have identical provisions which state - When an employee is due to retire, the employer shall {:ive six (6) months' notice without option of a salary. This provision is couched in mandatory terms. It requires an employer to give six months' notice to an employee who is due J41 for retirement without the option of a salary. Given the .vording of the two provisions, the letter from the Permanent Sec :etary o of the Ministry of Education, instructing the College to i,,ive the Appellants 90 days' notice of separation was erroneo is as it fell short of the prescribed six months' notice. 10.21 What was envisaged in Clauses 11.1 and 20.0 wa actual notice and not salary in lieu of notice, hence the r 'ovision "without an option of salary". Clearly, failure to.ive the Appellants the requisite six months' notice was a violation of this condition of service. Having already left empi yment, such a violation can only be remedied by paying them i salary in lieu of notice, to compensate them for the default. 10.22 In the case of CHILANGA CEMENT PLC V FASOTE SINGOG07 we discussed the essence of a notice and payment in lieu of notice. We held therein that - "Payment in lieu of notice is a proper and lawful way of terminating employment, since every contract of service is terminable by reasonable notice." 10.23 The provision for a notice in the terms and conditions of service is meant to bring to a close, in an orderly fashion, the employment life of affected employees; to prepare then for life J42 in or after retirement; and, to enable them mare ge any anxieties or concerns that they may have as regards retirement. Against express provisions in the condi -ions of service, we cannot accept Ms. Mulenga's argument 1 hat the Appellants had constructive notice for two years t -iat the College would soon be dissolved and that their circuir stances would change. The terms and conditions of service bo md the employer to give six months' notice. Since the Appellai .ts were given 90 days' notice, which translated to three months. We hold that they are entitled to the remaining three months'. In line with what we have stated in paragraph 10.21 above, we order that they be paid three months in form of salary in lieu of notice for the remaining period. 10.24 On the argument that the Appellants were underpaict due to wrong computations, we find that this argument is without basis. DWI testified that all under payments were corrected and the Appellants did not challenge this evidence in the Court below. To answer our second question in paagraph 10.5 above, our finding is that the Appellants are on y owed payment of three months basic salary in relation to t i notice J43 period. We accordingly find no merit in the first and second grounds of appeal. 10.25 Coming to the third ground of appeal, which also i eaks to the last issue for our determination, Mr Sitali argued hat the Appellants ought to have remained on the payroll irom 1st January, 2008 up to the time when they would be aid all their benefits in full. He pointed out that, as at n )W, the Appellants are still owed part of their benefits. Ms. Muenga in response, submitted that the Appellants should Oflly have remained on the payroll up to 31st December, 2009 wien the benefits were finally settled. 10.26 (cid:9) The main contention in the third ground of appea is that the Appellants should have continued to be paid their salaries until all the outstanding dues were paid. The unchallenged evidence of DW 1, was that all the employees of the College were paid according to the number if years served. That the payments included leave pay, rep triation and severance package and all the discrepancit s were corrected and payments affected. It follows thereic re, that 4. (cid:9) J44 the Appellants cannot be paid beyond 2009 wi n their benefits were settled. The third ground of appeal ais fails. 10.27 On the totality of the evidence, this appeal is allowec only to the narrow extent with regard to the notice period. In that respect, we hereby order the 2'' Respondent to ay the Appellants three months' salary in lieu of notice. Tiis is in addition to the sum of K3,497,664.59 salary arrears adjudged as owing by the lower Court. 10.28 The Court below awarded the Appellants interest at the short term deposit rate with effect from the date of he writ of summons to the date of judgment and thereaftei, at the Bank of Zambia current lending rate until final p.iyment. However, in terms of Section 20 of the STATE PROCEEDINGS ACT", interest payable by the Mir ister of Finance under a judgment cannot exceed six per centum from the date of judgment until the money is pail. We, therefore, revise the Order of interest awarded by ti e lower court to state that interest will be payable on the ju dgment sum at short term deposit rate from the date of issu of the writ up to the date of judgment and thereafter, at si< percent V. AS per annum until the date of payment. We awardC031 s to the Appellants both in this Court and the Court below to be taxed in default of agreement. I. C. Mambilima CHIEF JUSTICE •'\:' M. Malila SUPREME COURT JUDGE N. K. MuVina SUPREME COØRT JUDGE