Likando and Ors v Zambia Railways Ltd (Appeal 169 of 2003) [2005] ZMSC 45 (4 April 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 169/2003 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: INAMBWAE LINS LIKANDO & OTHERS Appellant AND ZAMBIA RAILWAYS LIMITED Respondent CORAM: Chirwa, Chitengi and Silomba, JJS On 2nd November, 2004 and 4th April, 2005 For the Appellants : Mr. M. M. Imenda of Messrs Veritas Chambers For the Respondent : Mr. M. A. A. Nsefu Legal Counsel JUDGMENT Chitengi, JS, delivered the Judgment of the Court. This case is not without a long history. The Appellants were all previously employed by the Respondent in various capacities and for various periods. In August 1992, the Appellants were, according to them, retrenched by the Respondent and, for various reasons which are not relevant to the determination of this appeal, they challenged the retrenchment and brought an action in the High Court claiming the following: - J2 (1) 1992 Salary appraisals (2) July 1992 ZIMCO salary increase (3) The employers’ contribution of the pension scheme. (4) Repatriation allowance (5) Six months pay in-lieu of Notice (6) Compensation for loss of employment (7) Reversion to Management Conditions of Service The Appellants were substantially successful in the High Court. The only claims they lost were those relating compensation for loss of employment, payment of 100% annual salary repatriation allowance and six months pay in lieu of notice. The Appellants’ appealed against the holding by High Court that they were not entitled to 100% annual salary repatriation allowance. After the Supreme Court judgment, the Appellants went to assessment as the High Court had earlier ordered. The Appellants accordingly took out a Notice of Assessment supported by an Affidavit in which they claimed K2,235,565,282.00 as the amount owing to them. The Defendants’ reply to the Affidavit in Support is that in fact the Appellants were over paid by K99,371,280.00. The Affidavit goes on to say that the Respondents’ calculations are based on J3 the High Court and Supreme Court judgments. According to the Affidavit the Respondent calculated and adduced appraisal for 1992 to 1993 monthly salaries and the new salary has been used to calculate the terminal benefits; terminal benefits at 100% annual salaries repatriation allowance less K120,000.00 which was earlier paid has been paid; the employers contributions have been computed; the 130% salary increment has been paid for the period in question; interest at 60% up to date of judgment and 6% interest after judgment have also been paid. It is the Respondents’ position that the Appellants in their computations have taken into account claims, which were not awarded either by the High Court or the Supreme Court. Both the Appellants and the Respondents led oral evidence. However, on account of the view we take of this evidence we do not intend to reproduce it. Suffice it to say that the witness who gave evidence on behalf of the Appellant went through the Appellants claims and then interpreted the effect of the judgments as he understood them. The theme of the evidence on behalf of the Respondent is similar to the Affidavit in Opposition which is that the Appellant were paid in accordance with the High Court and Supreme Court judgments. J4 On assessment, the learned District Registrar held that the Appellants misunderstood the import of the High Court and Supreme Court judgments or deliberately chose to misinterpret the judgments. As examples, the learned District Registrar said while the judgments gave the Appellants three appraisal increments less one the Appellants in their calculations gave themselves four increments; and while the Judgments stated that the Appellants be deemed to have been declared redundant the Appellants kept referring themselves as employees who had been retrenched, resulting into the Appellants’ using wrong formula when calculating their redundancy packages. Another example the learned District Registrar gave was the Appellants assertion that the Supreme Court awarded them pension when the Supreme Court like the High Court ruled that the Appellants had to be paid only the employer’s share of the contributions to the pension scheme. The learned District Registrar gave further examples which it is not necessaiy to repeat. The learned District Registrar concluded that the Appellants’ calculations were flawed and in error because they used wrong formula of retrenchment when they were deemed to have been declared redundant and they gave themselves more notches than were awarded by the court. The learned District Registrar then expressed himself satisfied that the Appellants were fully paid their redundancy packages and allowances. J5 Dissatisfied with the judgment of the learned District Registrar, the Appellants now appeal to this court. The Appellants filed three grounds of appeal. The first ground of appeal is that the District Registrar erred in law and in fact after failing to interpret and identify what were the awards of the Appellants in the Judgment of the High Court and the Supreme Court adjudged that the Appellants owed the Respondents the sum of K99 Million instead of the Respondents owing the Appellants more than K14 Billion pending on the date of separation yet to be determined by this court because of the wrong formular by the Respondents in their calculations. The second ground of appeal is that the District Registrar erred in law and fact by denying the Appellants the awards given to them by the two judgments under Article 40 of the ZIMCO conditions of service even when the judgments said "whichever is higher” should be applied in the calculations of the Appellants’ final benefits. The third ground of appeal is that the District Registrar erred in law and fact when he failed to determine the effective date of separation as alluded to in the High Court Judgment of 29th January, 2000. J6 Counsel filed written heads of argument which they augmented with brief oral submissions. In the view we take of this appeal, we do not consider it necessaiy to reproduce these arguments and submissions. Suffice it to say that we have carefully considered the arguments and submissions. We have carefully considered the evidence that was before the learned District Registrar, the submissions of counsel, the grounds of appeal and the judgment of the learned District Registrar. The determination of this appeal turns on the meaning of the High Court judgment and the Supreme Court judgment in this case. These two judgments are in very clear language and unambiguous. We need not have to interpret them. These judgments clearly state what was awarded to the Appellants. We are completely startled that counsel for the Appellants does not understand the two judgments well enough for him to give correct legal advice to his clients. As the learned District Registrar observed, it appears the Appellants and their counsel have deliberately misinterpreted the two judgments. The calculations by the Appellants are not based on the judgments but on what the Appellants think should be in the judgments. The appellants have included in their calculations J7 awards which are not in the judgment. We only refer to the examples given by the learned District Registrar and the award of six months salary in lieu of notice which does not appear anywhere in the two judgments. The correct awards are those reflected in the Respondents’ calculations. We find no merit in this appeal and it is not even necessary for us to consider the grounds of appeal in detail. All we can say is that the grounds of appeal are devoid of any substance. This is an appeal which we can rightly characterize as frivolous and one which should not even have been contemplated. The truth is that the learned District Registrar’ judgment is a good judgment and we cannot fault it. We dismiss this appeal with costs to the Respondent to be taxed in default of agreement. D. K. CHIRWA SUPREME COURT JUDGE SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE