Tungae v Zambia Electricity Supply Corporation Ltd (SCZ Appeal 72 of 2005) [2005] ZMSC 30 (6 December 2005)

TN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.72/2005 AT NDOLA (Civil Jursidiction) BETWEEN: GILBERT MUYUNDA TUNGUE Appellant AND ZAMBIA ELECTRICITY SUPPLY CORPORATION LIMITED Respondent Coram: Chirwa, Chitengi and Mushabati, JJS. On 7th September, 2005 and 6th December, 2005 For the Appellant: G. S. Chimanga of Chimanga & Co. For the Respondent: L. M. Matibini of L. M. Matibini and Co. JUDGMENT Mushabati, JS. delivered the Judgment of the Court In this judgment we shall continue to refer to the appellant as the plaintiff and the respondent as the defendant because this was what they were in the court below. The plaintiff sued the defendant for recovery of K25,297,356=64 being under payment of salary and terminal benefits following upon the termination of his employment by the defendants. He farther claimed for damages for what he termed constructive summary dismissal. The facts of this case, which were uncontroverted, are that the plaintiff worked for the defendant company from 1st August, 1970 until 8th August, 1995 when his services were terminated upon his request. He was J 2 to be paid his terminal benefits plus 3 months salary in lieu of notice. He was paid a total sum of K14,917,454.97 as terminal benefits. Prior to his retirement the plaintiff had requested to be seconded to the Zambia Electricity Allied Workers Union in 1993 after being elected as General Treasurer for the said Union in September, 1992. The plaintiff was due to retire in January, 1993 in accordance with his Conditions of Service upon his attainment of the retirement age of 55 years. The dispute between the plaintiff and the defendant was whether the plaintiff was entitled to six months notice before his retirement and whether he was under-paid. His claims were dismissed in that he had failed to prove that he had been under-paid and that he was entitled to six months notice or salary in lieu thereof. He filed five grounds of appeal, which were argued as per heads of arguments. Basically all the grounds of appeal could be summarized into two grounds namely:- 1. That the trial Court erred in law and fact when it failed to find for the plaintiff that he was entitled six months notice before retirement. 2. That trial Court erred in law and fact when it failed to find that the plaintiff was under-paid his terminal benefits, Mr. Chimanga briefly buttressed his heads of argument by oral submission arguing that though the plaintiff was at the time og giving notice was on secondment to the Zambia Electricity Allied Workers Union (hereafter referred to as the Chairman) he still remained an employee of the defendant who should have given the plaintiff 6 months notice before retiring him . J 3 The counsel for the defendant argued the appeal as if there was only one ground of appeal. The gist of the defendant counsel’s submission was that it was unnecessary for the plaintiff to be given six months notice because at the time he was formerly retired he had already reached the mandatory retirement age of 55 years in January, 1995. Further the plaintiff was then a full time employee of the Union. We have carefully considered the arguments by both counsel. We are satisfied that the plaintiff was due to retire in January, 1993 when he attained the age of 55 years. At the time of attaining this age he was a salaried employee of the Union. He had stopped working for the defendant when he joined the Union as a full time salaried employee. The appellant was paid his benefits in accordance with his Conditions of Service as atl993 though he was already with the Union. At the time he was formerly informed of his retirement, through the defendant's letter of 8th August, 1995, he had long gone past the retirement age of 55 years. We wondered why he should claim for six months notice because a notice is given to a person who has yet to reach the retirement age. We totally agree with the learned trial Judge's finding and the defendant Counsel’s argument that the plaintiff was not entitled to six months notice. In fact he must consider himself lucky to have been given at least three month salary in lieu notice. The plaintiffs last working day was in fact on 30th April, 1993 as contained in the letter written to him on 19th May, 1993 upon being granted leave of absence from the corporation’s employment as a result of his appointment as General Treasurer of the Union. It will be noted that by 30th April, 1993 he ought to have had already retired i.e. by January, 1993. We find no merit in his appeal against the refusal by the trial Judge to up-hold his claim to be paid 6 J 4 month salary in lieu of notice. He was not entitled to such notice. The appeal is dismissed. On the question of under-payment amounting to K25,297,356-64 we were unable to find any evidence that supported his claim. As rightly pointed out by the trial Judge at J7 lines 1 to 8 (page 24 of the record of • appeal) as follows: I have evaluated the totality of the evidence adduced before the court. It is clear from the evidence that the plaintiff has not proved how he arrived at the amount he is claiming for as the amount by which he was underpaid . According to him he based his argument that he was underpaid after comparing the amount he got with the amount his friend received. He however, did not adduce any evidence to show that his friend was on leave of absence for the same period and that the 2 were on the same salary scale. We totally agree with him that the plaintiffhad no basis for the claim of K25,297,356.64. He further claimed for appraisal notches which were awarded to the defendant’s employees. The notches he was claiming were awarded to the defendant’s employees when he himself was already working for the Union and so he was not entitled to such increments. It would appear he wanted to receive double payments one from the Union and the other from the defendant. He was not entitled to such payments. We therefore, find no merit in the arguments advanced before us. We have no doubt that the entire appeal has no merit and we dismiss it with costs to the defendant and default of agreement they shall be taxed. D. KlChirwa SUPREME COURT JUDGE SUPREME COURT JUDGE y xy^jUGh^cngi J 5 C. S. Mushabati SUPREME COURT JUDGE