Cosmas Mukuka v The Attorney General (APP/280/2021) [2023] ZMCA 301 (13 October 2023)

) IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) APP/280/2021 BETWEEN: COSMAS MUKUKA AND APPELLANT THE ATTORNEY GENERAL RESPONDENT CORAM: SIAVWAPA JP, MAKUNGU AND PATEL, JJA On 11th and 13th October, 2023 FOR THE APPELLANT: MR. M. D. LUNGU OF MESSRS GDC CHAMBERS FOR THE RESPONDENT: MR. P. S. ADVOCATE PHIRI , SENIOR STATE JUDGMENT SIAVWAPA JP delivered the Judgment of the Court Cases referred to: 1. Zambia Airways Corporation Limited v Gershom Mubanga Selected Judgment No 24 of 1992 2. Jerome Francis v Municipal Councillors of Kaula Lumpur (1962) 3 All E. R. 633 Legislation referred to: 1. The Employment Code Act No 3 of 2019 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 3. Teaching Service Commission Regulations Statutory Instrument, No 172 of 1971 1.0 INTRODUCTION 1.1 On 8 th July, 2021, the Hon. Mr. Justice Sunday B . Nkonde delivered a Judgment in the Industrial Relations Division of the High Court. By the said Judgment, the learned Judge dismissed the Appellant's claim, among others, that he was wrongfully and unlawfully retired in national interest. 2.0 BACKGROUND 2.1 The Appellant served as a primary school teacher in the employ of the Respondent with effect from 1st April, 1993 on permanent and pensionable conditions of service. On 1st May, 2003, he was promoted to the position of deputy head teacher. 2.2 Between 200 1 and 20 19, the Appellant was seconded to various union bodies serving in different capacities. The last position he held was that of Secretary General of the Zambia Congress of Trade Unions (ZCTU) to which he was re-elected on 20th December, 2019. 2.3 Following his re-election, he applied for secondment to the ZCTU. The Ministry of Education supported the application to the Teaching Service Commission. J2 2.4 However, by letter dated 5th May, 2020, the Ministry of General Education informed the Appellant that the Teaching Service Commission (the Commission) had directed that he be retired in national interest. 2.5 On 7 th May, 2020, the Appellant appealed the above decision. In a reply dated 2nd June, 2020, the Commission appointed 12th June, 2020 for the hearing of his appeal. 2.6 At the hearing, the Appellant objected to the chairperson hearing his appeal on grounds that he had influenced his retirement. The hearing was adjourned. 2.7 The Commission, by letter dated 18th June, 2020, recused itself from hearing the appeal and maintained its earlier decision to retire the Appellant. This prompted the Appellant to seek redress in the Court Below. 3.0 IN THE HIGH COURT 3.1 On 8 th July, 2020, the Appellant filed a Notice of Complaint before the Industrial Relations Division by which he sought a declaration that his retirement was unlawful, wrongful, illegal, irrational, and null and void. He also sought re-instatement and damages. J3 3.2 The Appellant a n chored his grievances on the Respondent's alleged failure to provide a valid or proper reason for his retirement, to consider section 38 (e) of the Appellant's conditions of service and to accord the Appellant a fair and impartial hearing by an independent tribunal. 4.0 DECISION OF THE HIGH COURT 4.1 In a Judgment dated 8 th July, 2021, the learned Judge condensed the issues before him to the two questions below: 1. Whether the Respondent gave a valid reason for the retirement of the Appellant or termination of his contract of employment by retirement 2. Whether this is a proper case for the Court to pierce the veil and delve into the real reason for the retirement of the Complainant or the termination of his contract of employment by retirement 4.2 After considering the affidavit evidence, the learned Judge answered the first question in the affirmative and the second one in the negative. 5.0 THE APPEAL 5.1 The Appellant has anchored the appeal on six grounds set out in the Memorandum of Appeal as follows: 1. The Learned trial Judge misdirected himself in both law and fact when he held that there was a valid and J4 proper reason given by the Respondent for the Appellant's retirement whilst expressly acknowledging that the letter of retirement did not state whether the retirement in national interest was at the instance of Government either: a) To take up another appointment outside the public service; b) For other reasons of Government policy 2. The Court below erred in both law and fact when it glossed over and failed to adjudicate and determine all the issues in controversy between the parties. Inter alia, the Appellant's claim that he was not given an opportunity to be heard by the Respondent against the decision to retire him in national interest contrary to the principles of national justice and the law. 3. The Learned trial Judge misdirected himself in both law and fact when he held that the validity of the reason of retirement was tied to the question whether it was a fit and proper case for piercing the veil and delve into the real reasons for retirement in national interest. 4. The Learned trial Judge misdirected himself in both law and fact when he completely glossed over and failed to assess, analyse, and examine the evidence on record in order to pierce the veil and delve into JS the real reasons for the Appellants retirement 1n national interest 5. The Court below misdirected itself in both law and fact when it held that the Appellant failed to prove his case on a balance of probabilities and dismissed the Appellant's complaint against the weight of the evidence in favour of the Appellant on record 6 . Any further grounds of appeal to be filed upon perusal of the record . 6.0 ARGUMENTS IN SUPPORT 6.1 In arguing grounds one and three together, the Appellant contended that contrary to the learned Judge's finding that it did, the Respondent did not give a reason for retiring him in national interest. 6.2 The Appellant a rgued that rules 63 and 64 of the Industrial Relations Court Rules recognize only oral and affidavit evidence. However, that the Respondent did not filed an affidavit thereby, providing no valid reason for retiring him in national interest. 6.3 Our attention was drawn to Section 52(1) and (2) of the Employment Code Act to support the argument that employers must give reasons for terminating an employee's contract of J6 employment and the burden is on the employer to prove these reasons. 6.4 The Appellant has argued that according to Clause 38(e) of the Appellant's terms and Conditions and Regulation 29C of the Teaching Service Commission Regulations, which are couched in similar or exact terms, two conditions should be met before the Respondent can satisfy the provisions of section 52(5) of the Employment Code Act. 6.5 These are that the retirement, at the instance of Government, was either: i.to take up another appointment outside public service; or ii. for reasons of Government Policy. The Appellant argues that the evidence on record shows that none of these conditions was met. 6.6 The Appellant argued that the validity of the reason for termination should not be tied to the Court's power to pierce the veil and delve into the real reasons for retirement. 6.7 In ground three, the argument is that the learned Judge did not adjudicate upon all the matters before him contrary to the principle established in a plethora of cases. J7 6.8 In ground four, the Appellant argues that the learned Judge failed to delve into the reasons for the Appellant's retirement which would have shown that the Appellant's employment was terminated because of his role or involvement in the ZCTU. 6.9 In ground five, the Appellant asserts that he adduced evidence to support his case and that in accordance with section 52(5) of the Employment Code Act; it was the Respondent who had a burden of proving that the termination of the Appellant's contract of employment was fair and for a valid reason 6. 10 We are beseeched to allow this appeal and award costs to the Appellant both here and below. 7.0 ARGUMENTS IN OPPOSITION 7 . 1 The Respondent failed to file Heads of Argument within time and at the hearing, he made an application to file out of time. We rejected the application for lack of a satisfactory reason for the inordinate delay of close to two years. 8 .0 OUR ANALYSIS AND DECISION 8.1 In our considered view, the six grounds of appeal advanced are closely linked and we will deal with them as a whole based on the issues identified. J8 8.2 At the heart of the appeal is the grievance that the learned Judge erred in law by holding that it was sufficient for the Respondent to inform the Appellant that he was retired in national interest without disclosing the nature of the national interest. 8 .3 The letter from the Ministry of General Education appearing at page 142 of the record , addressed to the Appellant states as follows in relation to his retirement: "You, Mr Cosmas Mukuka, Class Teacher(G) at Twashuka Basic School in Lusaka District, Lusaka Province be retired from the Public Service in National Interest with immediate effect." 8.4 Clause 38(e) of the Appellant's conditions of service is couched as follows: "A service commission may require an Established Officer to retire in the national interest at the instance of the Government either to take up another appointment outside the Public Service or for other reasons of Government Policy." 8 .5 The learned Judge found that the Respondent, during the proceedings, had stated that the Appellant was retired 1n national interest for other reasons of Government Policy. 8.6 Section 52 of the Employment Code Act provides as follows: "(1) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee's contract of employment; and J9 (2) An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking. (5) An employer shall bear the burden of proof that the termination of a contract of employment was fair and for a valid reason. " 8.7 Although section 52 of the Employment Code Act is flaunted as of aid to the Appellant's case, we think what is of crucial importance is Regulation 29 (c) of the Teaching Service Regulation and Clause 38(e) of the public Service Terms and Conditions of Service which are worded similarly 8.8 We however; wish to say something about section 52 of the Employment Code Act. While it is true that it directs that an employer should give reasons for terminating an employee, the prohibition to terminate without giving a valid reason under subsection (2) applies only where the termination is 1n connection with the capacity or conduct of the employee. 8. 9 The circumstances of the Appellant herein do not fit into that provision and so we will focus on Regulation 29C and clause 38 (e) referred to in paragraph 7 .8 above. 8.10 The question we ask is; can that part of the letter reproduced in paragraph 7 .3 above be said to satisfy Clause 38 (e) of the Public Service Terms and Conditions of Service? In other words, to the extent that it does not state that the Appellant would be taking up another appointment outside the public JlO service, does it give any reason for retiring the Appellant in the national interest? 8.11 It is common cause that the Appellant was not appointed to any position outside the public service following his retirement in the national interest. Therefore, the letter in issue does not satisfy the first part of clause 38 (e) and rule 29 (c) of the Teaching Service Commission Regulations. 8.12 Default of re-deployment outside the public service, an officer may be retired in the national interest for other reasons of Government policy. The letter in question is devoid of any disclosure to that effect. We must state here that in our view, if the retirement is for other reasons of Government Policy, it is not sufficient for the letter of retirement to simply state that one is retired for reason of Government Policy. The employer should actually go further and disclose that other reason of Government Policy to the employee. 8. 13 We are fortified in this view by the fact that Part V under which Regulation 29(c) of the Teaching Service Commission Regulations and clause 38 (e) appear applies to termination of appointments otherwise than by disciplinary proceedings. 8.14 In this case, the letter of retirement did not state that the Appellant was retired in national interest for other reasons of Jll Government policy. We are therefore, of the firm view that the Appellant was wrongfully retired from the public service. 8.15 Having found that the Appellant was terminated wrongfully, the remaining issue is the relief availa ble to th e Appellant. 8.16 In his notice of complaint, the Appellant sought an order of re instatement. In the case of Zambia Ainuays Corporation Limited v Gershom Mubanqa1, the Supreme Court applied the principle in the case of Jerome Francis v Municipal Council of Kaula Lumpur2. In that case it was stated as follows: "When there has been a purported termination of a contract of service, a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the Courts will not grant sp ecific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the Court. " 8.17 In the present case, the learned J udge observed a s follows at page J26: the Respondent's entity, "The Complainant states that he had his application for secondment approved by the Teaching Service Commission, in around 2011 and also 9th February 2015. This is the same entity that retired him in National Interest. Therefore, I have difficulty in finding that the real reason for the retirement was to get rid of him from playing any role in the Zambia Congress of Trade Unio ns when the same entity had a history of approving his secondment. I cannot see the malicious hand play in his retirement.)) J12 8.18 We agree with the reasoning of the learned Judge . The Respondent exercised its right to terminate the contract under clause 38(e) albeit unlawfully. 8.19 In the affidavit in support of the Complaint, the Appellant asserted that it will be extremely difficult for him to find alternative employment. 8.20 In the application for employment exhibited at page 50 of the record, the Appellant's year of birth is 1969, making him 51 at the time of termination. Given his current age and the fact that he was or is entitled to his full retirement benefits, we award the Appellant one months' salary as damages for wrongful and unlawful termination of employment. 8.21 Parties will bear their respective cost both in this Court and below. j M. J. SIAVWAPA JUDGE PRESIDENT .. .......... ~~~ .. .. ... . C. K~ . MAKUN·ouer · COURT OF APPEAL JUDGE ~G f<JJ9 • • ••••••• •• ••• •• • • ••••• , T"T'T'f" • • •• • • • •• • ••• A. N. PATEL, SC COURT OF APPEAL JUDGE J13