Christine Mwenzela Ndhlovu v Barclays Bank Zambia Limited (Appeal No. 125 of 2001) [2002] ZMSC 165 (4 June 2002)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 125 of 2001 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: CHRISTINE MWENZELA NDHLOVU APPELLANT AND BARCLAYS BANK OF ZAMBIA LIMITED RESPONDENT CORAM: Ngulube, CJ, Sakala and Chitengi, JJS On 6th March, 2002 and 4th June, 2002. For the Appellant : Mrs S. M. Kunda of Messrs George Kunda & Co. For the Respondent : Mr. C. H. J. Chileshe of Messrs Lloyd Jones & Collins JUDGMENT Chitengi, JS, delivered the Judgment of the Court. Cases and authorities referred to:- 1. Odgers on Pleading and Practice Pages 10 and 56 2. Atkins Court Form 2 nd Edition Volume 33 Pages 287- 8 3. Development Bank of Zambia Vs Mambo (1995-1997} ZR89 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 Comt below. This is an appeal by the Plaintiff against the learned Deputy Registrar's holding that the Plaintiff's application to assess benefits allegedly owing to the Plaintiff under the Staff Pension Scheme was irregularly before her. Reduced to a narrow compass for the purpose of this appeal the facts of this case are that the Plaintiff brought an action against the Defendant who was her employer for damages for wrongful dismissal and libel. After trial the High Court dismissed the action for libel but found for the Plaintiff on the action for wrongful dismissal and made the following awards:- 1. One month's salary-in-lieu of Notice 2. Housing Allowance for one month 3. Gardener's salary for one month 4. Entertainment Allowance for one month. The learned trial High Court Commissioner also found that the Plaintiff was entitled to some other claims, the amounts of which were not stated, and consequently he referred these claims to the learned Deputy Registrar to be assessed. The learned High Court Commissioner also ordered that the Plaintiff be paid her benefits under the Defendant's Pension Scheme. The Judgment of the High Court was delivered on 1gth May, 1999. The Plaintiff was dismissed some time in July, 1993. The Plaintiff appears to have been happy with the other payments but not happy with the benefits under the Defendant's Pension Scheme. Thereupon the Plaintiff took out a Summons before the learned Deputy Registrar for the learned Deputy Registrar to assess her benefits under the Defendant's Pension Scheme. Before the learned Deputy Registrar the Plaintiff complained that the Defendant had only partially complied with the Judgment of the Court and that there was a dispute as to the quantum of benefits due to her under the Defendant's Pension Scheme. The Defendant had offered her a paltry sum of K2,785,209 as benefits under the Pension Scheme when she had rendered 23 years service to the Defendant. According to the Plaintiff, the Defendant should have paid her benefits as if she had retired as Senior Operations Manager at the age of 60 years because her dismissal was wrongful. The Plaintiff also alleged that the Defendant discriminated against her because her juniors who left the Defendant bank in 1998 got much more in terms of benefits. The Plaintiff then gave the example of one Mrs Sophie Chifokola who held a position junior to her who in 1998 was given the option to go on early retirement with pension entitlement or to go on voluntary redundancy without pension. Under the early retirement option, Mrs Chifokola would walk away with K61,660,794.65 and be entitled to pension on attaining retirement age. Under the voluntary redundancy option Mrs Chifokola would get K103,543,840.98. Mrs. Chifokola, quite naturally and not wanting to shoot in the dark, chose the second option and collected K103,543,840.98 after tax. The Plaintiff said as a senior Operations Manager she should have, with reference to retirement age of 60 years, been paid K250,000,000 in pension benefits since her employment was wrongfully terminated. If she had not been wrongfully terminated she would have worked many more years and her salary would have been increased, in which case she would have been entitled to higher benefits under the Defendant's Pension Scheme. The Defendant resisted the Summons for assessment on the ground that the Judgment ordered that the benefits must be paid from the staff Pension Fund/Scheme. According to the Defendant it had fully complied with the Judgment and in fact overpaid the Plaintiff by KS,852,810.00. The amount payable to the Plaintiff was Kl,789,209.00. The awards were calculated at the prevailing rates in June 1993 and the pension benefits cannot be paid on some futuristic rate on 25 th August, 2011. Neither the Plaintiffs contract nor the Staff Pension Scheme in 1993, when the Plaintiff was terminated, can be compared with other arrangements between the Defendant and its other employees which do not arise out of the Staff Pension Scheme. Not all Defendant' s employees' leave under the Early Leavers Scheme or Voluntary Redundancy option. The majority of the Defendant's employees leave under the Staff Pension Scheme. The Early Leavers Scheme under which Mrs. Chifokola left was introduced in 1994 when the Plaintiff had already left. In any event at the time Mrs Chifokola left she was a Senior Manager. The learned Deputy Registrar considered the evidence and among other things found that the issue of Staff Pension benefits was not referred to her for assessment and that failure by the parties to compromise on the amount did not automatically entitle the Plaintiff to apply for assessment without order of the trial court. In consequence of this, the learned Deputy Registrar held that the application for assessment was irregularly before her. Be that as it may, the learned Deputy Registrar considered the application on its merits and after visiting many authorities came to the conclusion that the Plaintiff was entitled under the scheme only to the K2,785,209 offered to her by the Defendant. The learned Deputy Registrar also held that because the Plaintiff was in gainful employment with a company called Norgroup Plastics she had suitably mitigated her loss with the Defendant. Mrs. Kunda learned counsel for the Plaintiff argued three grounds of appeal. She argued the first and second grounds of appeal together. The burden of these grounds of appeal is that the learned Deputy Registrar misdirected herself when she held that the application for assessment of damages was irregularly before her and that this holding influenced her in the assessment of the pension or damages. In arguing this ground Mrs Kunda submitted that the learned Deputy Registrar in her Judgment acknowledged that there was a dispute between the parties. If there was a dispute between the parties then, Mrs Kunda submitted, the learned Deputy Registrar should have resolved that dispute. As authority for this proposition Mrs Kunda cited passages from Odgers on Pleading and Practice JB'h Edition at Pages 10 and 56(1) and Atkins Court Forms 2nd Edition Volume 33 Pages 287 - 8(2). Further, Mrs Kunda submitted that the Plaintiffs benefits under the Staff Pension Scheme should have been calculated on the formula that was applicable to Mrs Chifokola. Mr. Chileshe learned counsel for the Defendant submitted that the Plaintiff was entitled only to be paid under the Defendant's Staff Pension Scheme rules as ordered by the learned High Court Commissioner. It was Mr. Chileshe's submission that the Plaintiffs entitlement was a mathematical function of actuarial formular under the Pension Scheme. The comparison to the voluntary redundancy was irrelevant and extraneous. It was also Mr. Chileshe 's submission that the measure of damages is not to enrich the Plaintiff but to restore the Plaintiff in the position she was in 1993. We have considered the facts on this issue and the submissions of counsel. We are not prepared to accept the submissions by Mrs Kunda that because there was a dispute between the parties as to the amount to be paid under the Staff Pension Scheme, the learned Deputy Registrar should have resolved it. We have looked at the passages in Odgers and Atkins Court Forms to which Mrs Kunda refened us. We are satisfied that properly read, these passages deal with disputes between parties as to the quantum of damages and that they do not deal with the kind of dispute between the parties in the instant case. So far as we have been able to ascertain, the dispute between the parties in this case is not so much that the Plaintiff was short changed in the calculations under the Staff Pension Scheme as it stood in 1993 but that she should be paid under the Voluntary Early Leavers Scheme which was introduced in 1994 after she had been dismissed. This issue could not conceivably be resolved by the Deputy Registrar during assessment. Nor could the learned Deputy Registrar assess the Plaintiff's benefits under the Staff Pension Scheme. This is so because the learned trial High Court Commissioner, as the learned Deputy Registrar rightly observed, did not order the assessment of the Plaintiff's benefits under the Staff Pension Scheme. In the circumstances, we affirm the learned Deputy Registrar's holding that the application for assessment was irregularly before her. The learned trial High Court Commissioner's order relating to the benefits under the Staff Pension Scheme was very clear. After ordering certain claims to be assessed by the Deputy Registrar, the learned trial High Court Commissioner expressed himself in these terms:- "/ further order that the Plaintiff be paid her benefits under the Defendant's Pension Scheme." The learned trial High Court Commissioner could not have made any other order in respect of payment of benefits under the Staff Pension Scheme because we do not see how assessment would arise. As Mr. Chileshe rightly submitted, the Staff Pension Scheme had a formula and the issue was one of arithmetical calculation. The Plaintiff cannot now seek benefits under the 1994 Early Leavers Scheme because by that time her employment with the Defendant had already terminated. As we said in the case of Development Bank of Zambia Vs Mambo(3) when employment comes to an end whatever happens to the other employees who continue in the employment does not affect the obligations between the parties. Of course the Development Bank of Zambia case(3) dealt with termination of employment by notice. But the principle we laid down there apply equally to cases of termination by dismissal. About interest. Interest is given on the ground that a party has been wrongly kept out of his money. In this case, it has not been shown to us that the Plaintiff was wrongly kept out of her money. The facts show that the Defendant has always been ready and willing to pay the Plaintiff her benefits as calculated under the Staff Pension Scheme obtaining in 1993 but the Plaintiff has refused to accept the money. We find that the Plaintiffs refusal to accept the money was not based on any valid legal reason but on her misconceived notion of the law and the Staff Pension Scheme. In the circumstances the learned Deputy Registrar was right in refusing to award the Plaintiff interest. In view of what we have said above we do not find it necessary to deal with the third ground of appeal which is that the learned Deputy Registrar erred when she held that the remuneration earned by the Applicant in the alternative employment with Norgroup Plastics Limited should have mitigated or reduced her pension benefit. Whatever other remuneration the Plaintiff could have earned elsewhere after she left the Defendant did not affect her benefits under the Staff Pension Scheme. For the foregoing reasons we dismiss this appeal with costs in this court to the Defendant to be taxed in default of agreement. NGULUBE CHIEF JUSTICE SAKALA SUPREME COURT JUDGE PETER CHITENGI SUPREME COURT 8