Judan Pherry Kalota v Kitwe City Council (APPEAL NO.128/2006) [2010] ZMSC 15 (4 March 2010)

Jl 1N THE SUPRE \.lE CUURT OF Z.:\t,.,IBIA - - - - - - - HOLDEN AT NDOLA BET\VEEN : J UDAN PHERRY KA. LOTA APPELLANT AND KITWE CITY COUNCIL RESPONDENT Coram: Sakala, CJ., Silomba and Chibomba, JJS. on 1 st December, 2009 and 4 t h March, 2010 For the Appellant: No appearance For the Respondent: No appearance JUDGMENT Sakala, CJ., delivered the judgment of the court. Cases Referred to (1) Nyoni V the Attorney-General [2001] ZR65, (2) Chintomfwa V Ndola Lime Company Ltd [1999] ZR229 (3) Mccall V Abelesz and another When we hea rd this a ppeal, there was no a ppearance from both parties. We proceeded to hear the appes 1 as ·we - - - ---- - 12: \:-...~ere satisfied that the parties n1u~n have been a\vare cf ·;h::~ hearing date. The Appellant, however, had filed his Heads of Argument; but the Respondent did not. This is an appeal against the Judgment of the Industrial Relations Court holden at N dola dismissing the Appellant's claims for wrongful termination of employment by the Respondent as lacking merit. From the documentary and oral evidence on record, the history of the case leading to this appeal is not in dispute. This is that sometime in 1975, the Appellant was employed Ly the Respondent as an Assistant Community Development Officer. He rose to the rank of Senior Assistant Community Development Officer at the time his employment was terminated. During his employment with the Respondent, he served under the LocHl Governn1ent J3 Conditions of Service (Regulations) v.;,hich \\'·::re arnenck:d frorn ti1T1e to time. During his service, the Local Authorjty Superannuation Fund (Amendment) Act No. 27 of 1991 was passed by Parliament. Among other things, this Act made it mandatory for a member of the Fund, v.rhich the Appellant was, to retire upon serving a total number of twenty-two (22) years. As a result of this Act, the Appellant was served with a six (6) months notice of retirement from the Respondent with effect from 18th November, 1996, to run up to 18th May, 1997. However, two days before the end of the notice period, the notice to retire v.1as withdrawn because the Local Authority Superannuation Fund (Amendment) Act No. 27 of 1991 had been repealed and replaced by Act No. 30 of 1996. This new Act required an employee to retire upon reaching a pensionable age of fifty five years. - -- --------- - - - - - ---- --- --- - J4 Following the pass1ng of Act No. 30 of 1996, the Minister of Local Government and Housing issued Statutory Instrument No. 84 of 1997. This S tatutory Instrument p r ovided that any o fficer or em ployee of the Council, \Vho had been served with notice of retirement prior to 12th December, 1996, may retire on the expiration of six months period from 12th December, 1996; but that t ho se em ploye es, w h o did not wish t o r etire, were t o notify the Town Clerk by 31st July, 1997. All the employees and the officers of t he Respondent Council w ere inf armed of these provis ions by a m emorandum <laleu 21 3t J u ly, 19 97. Thus, on 28th July, 1997, by a letter headed "Prescription of Dates of Retirement; Statutory Instrurnent No. 84 of 1997, " the Appellant notified th e Respondent that he was not prepared to retire at tha t moment and t hat he would rema in and continue to work until the r ight t ime of satisfaction comes and that time would t ell. 15 · referring to the memorandum of 21 st July, 1997) aJ1d to Statutory Instrument No. 84 of 1997, applied to retire from the service. The application was through a letter dated 30th June, 1998, in which the Appellant specifically cancelled his earlier letter of 28th July, 1997, in which he had informed the Respondent that he was not prepared to retire . In response to the Appellant's letter of 30t.h June, 1998, applying for retirement in which letter he cancelled his earlier letter of 28ll1 July, 1997, the Re~pondent's Town Clerk informed the Appellant that he was being retired in the "national interest" in accordance with the Local Government Conditions of Service and that his last day was to be 31 st December, 1998. Thereafter, the Appellant wrote two letters thanking the Respondent for the grant of the retirement. J6 Subsequently, the Respoj:1dt:nt Council paid t11e App~~Eant his terminal benefits, while monies due to the Appellant, through the Local Authority Superannuation Fund, \Vere transferred to the Fund. But repatriation money was not paid because, according to the Respondent, the Appellant had taken them to Court. On 15th May, 2000, however, the Appellant wrote the Respondent Council claiming that the mode of his exit from the service of the Respondent had been changed from retirement in the "national interest 71 to "retirement on abolition" of office and that he was, therefore, entitled lo a retr~nchment package because "abolition of office" v.ras synonymous with retrenchment. What followed thereaner ~,as that n urnerous correspondence exchanged hands between the Appellant and the Respondent Council on the mode of exit, as to whether he was terminated m "national interest" or J7 "retire:rnent on abolition'~ of office. A meeung benveen the Appellant and the Respondent Council \Vas called at which it was resolved that the Appellant be deemed to have retired from the Council Service on 18th May, 1997 after serving the Respondent Council for twenty-two years; and that the ensuing years be treated as service on contract and a separation package to be treated accordingly. The Appellant v.ras advised to appeal to the relevant authority. On 2 nd January, 2002, the Appellant filed a notice of complF.dnt. £igainst the Respondent al Lhe Induslr ial Relations Court. The ground for the complaint 'w~as wrongful termination of employment from the Respondent Council on 18th May, 1997. The relief sought \Vas that Lhe wrongful termination of employment be treated as retrenchment and not retirement and that he be paid retrenchment benefits with effect from the date of his J8 appointment to the datr: of ,Judgr11ent. compensation and costs. The Respondent Council,: 1n their answer and th.e supporting affidavit, admitted terminating the Appe11anfs employment; but justified the termination on the grounds that the Appellant ~ras retired pursuant to the Local Authorities Superannuation Fund Act; that the Appellant had served the required twenty-two years to be retired; that the Appellant had in fact been given notice of retirement; and that the Appellant was not declared redundant as the circumstances did not call for redundancy. Both parties adduced oral evidence which \Vas substantially a repetition of what was contained in their respective affidavits in support of the notice of co1nplaint and the answer, respectively. J9 The Trial Court considered the documentary and the oral evidence on record as well as the submissions by both parties. The Court noted that the Appellant v.ras not challenging his exit on · the ground of unlawfulness; but that he thought the Respondent Council had substituted the words in the ''national interest'' with the \iVOrds "abolition of office" as the reason for his termination. After considering the documentary and the oral evidence, the court was satisfied that there 'Aras no substitution of the words in the "national interest" with the words "abolition of office"; and that the Appellant had infact app1ied for retirement in terms of Statutory Instrument No. 84 of 1997; and that this retirer.ne:r:it \Vas granted to him. The court pointed out that although its mandate was to do substantial justice, this did not mean perfect justice, it simply meant that in carrying out its mandate of doing JlO substantial justice to the parties, the courl should on1Y consider the essential facts of the case and that the court should not be swayed by mere technical arguments; no matter ho,v ingeniously advanced. The court observed that this approach ties in v_rith one of the principles of equity which states that he who comes to equity must come with clean hands. The court accepted that the Appellant had applied to be retired in accordance with Statutory Instrument No. 84 of 1997; that he "\A.ras not influenced by anyone to make his application; that the application was a fulfillment of his intention to retire \vhen "the right time comes to retire''. The court noted that an examination of the documentary evidence showed that the Appellant '\Aras a man v.rho was in full understanding of the steps he was deliberately taking. He applied to retire by a given date; and he was granted that retirement. He v-,rrote t\A'O letters in which he ;:·.l-;Ow'ed Jll gratitude. The court paused a question; "can such a man be allowed to come back and argue that he was wrongfully terminated?" The court answered the question in the negative, pointin g out that the claim and the arguments were premised on mere technicalities; a nd that on principle and in equity; this was not acceptable because the Appellant's hands were clearly not clean. The Appellant's clairn was rejected as one lacking 1n merit. The court went further to point out that the issue of non-payment of repatriation allowance was based on the fact that the matter was in court. Thus, the court ordered that the repatriation allowance be paid to the Appellant in accordance with the conditions of service governing the payment of that allowance . J12 Except for the award of pay1nent of the repatriation allowance to the Appellant, the complaint v.ras disrnissed. The parties were ordered to bear their ovvn costs. Dissatisfied with the · Judgment, the Appellant appealed to this court against the whole Judgment. The memorandum of appeal contains five grounds summarized as follows: - (1) That the documents which clainied to have retired the Appellant on 18th May, 1997 were not in force at the time of his request on 30th June, 1998; and his retirement in national interest on 31 st December, 19 98 was contrary to his request; (2) That the court below erred and misdirected itself both in law and fact when it accepted the evidence of the Respondent to retire him on rnore than one condition and on two different dates; J13 (3) That the court below erred and misdirected itself when it ruled that. he had been challenged by the Respondent's witness to produce any letter iuritten by the defence witness on the question of re'tiren1ent in the national interest being changed to retirenient by way of abolition of office; (4) That the court below en-ed, misdirected and contradicted itself when it rnled that the case be dismissed for '(lack of me1its" when the same court had advised the Respondent to have a new look at the case which it found rather straight fonuard and then h'.a.i.se tuith the Complainant; and (5) That the court below erred and misdirected itself both i.n. lauJ and in fact u;hen it n1..led tha.t all n1onies to the Appellant in the form of terminal benefits from the Respondent Council and LASF pension benefits had been paid to him when the Respondent did not follow J14 the correct and right n1ode of payment of such benefits. >J The Appellant filed writtet?- heads of Argument based on each ground. In the heads of Argument, he referred the Court to two Zambian cases of Nyoni V the Attorney~ General1, Chintomfwa V Ndola Lime Company Ltd2 and to an English case of I\'I:ccall V Abelesz and another3 for which he djd not give any citation. According to the Appellant, the cases were relevant references which joined issues with his cases based on wrongful retirement and compensation for damages. On account of the view we t ake of this Appeal, we do not intend to delve into the v.1ritten heads of Argument in very great d etail. The gist of 1.he written heads of Argurnent on ground one 1s that the Local Authorities Superannuation Fund (Amendment) Act No. 27 of 1991 and Statutory Instrument No. 87 of 1997 were not in force JlS at the lirne of his request tu retire on 301h June, 1998; that the Respondent Council did not accept his retirement; and that b reach of e1nployrnent contract was synonymous with wrongful retirement of employment. The summary of the written heads of Argument on ground two is that the Respondent Council's answer and the supporting Affidavit show that he was retired in accordance with Act No. 27 of 1991 on 18th May, 1997; while the Town Clerk's evidence showed that he was retired in ''National Interest" on 31 st May, 1998 in accordance with the Local Governn1ent Conditions of Service. The gist of th~ written heads of Argument in ground three is that according to the record, the complainant was not cross-examined on his evidence, suggesting no challenge to his complaint. J16 The sun1rnary of the v\'ritten heads of a.rgun1ent on ground four is that in the course of the proceedings, the Court had stated '(We have heard the application and the objections thereto and we allow the objection) but grant the costs to the complainant. Further, we advise the Respondent to have a new look at the case which we find rather straight fonuard and then liase with the complainant>). It Viras submitted in the heads of Argument that this was double standards because the same Court that advised the Respondent to have a new look at the case of which it found rather straight forward and granted costs to the complainant and asked the same Respondent to liase or negotiate with the Appellant; \\7hen it can1c to Judge, dismissed the case for lack of merits. It was contended that this displayed do u.ble standards on the part of the Court. J17 The gist of the v,TiL.c1-:i heads of Argun1ent on g;·u1..1ud five is that the mode of payments of terminal benefits and pension was bad because they were being paid in sn1ali runounts. We were asked to condemn such payments as they caused mental upset, distress and inconvenience. We have carefully considered the documentary and oral evidence on record, the Judgment and the ,;vritten heads of Argument filed by the Appellant in person and all the five grounds of appeal. We take note that the Appellant appeared in person in the Court below; that he prepared his own record of appeal as well as Lhe written heads of Argument. In our view, however, we find that the Appellant's behavior was very inconsistent in relation to his intention to separate with the Respondent. Be that as it may, the trial court made very specific findings of fact in its J18 J udgn1cnt. What \Ve do noL kno\V is ¼lb.ether the Appellant understood the Judgment. From the documentary evidence on record, which the trial court carefully examined, the court found that the Appellant applied for retirement. The application letter, addressed to the Respondent's Town Clerk, headed "Request For Retirement From Kitwe City Council Services," dated 30th June, 1998 states as follo\N~s:- ((Reference 1s made to your memorandun1 N·o. DA/ 101/ 13/ 1/ AMM dated 21 st July, 1997 regarding prescription of dates of retirement Statutory Instrument No. 84 of 1997 in which I subsequently decided to continue to work until further notice. I now wish to retire from the Council Service. This correspondence therefore supercedes my earlier communication dated 28th July, 1997 on the same. J19 I am 48 years of age, and with a very satisfactory record of service of 23¼ years. I intend to retire jrorn the Council Services on 31s t December, 1998 (effective 1st July, 1998) if my request is accepted.'' The court found that the Appellant got what he applied for. This is the Appellant who earlier on had written the Respondent Council on 28t h July, 1997 as follov..rs:- "Dear Sir ) RE: PRESCRIPTION OF DA TES OF RETIREl!l!ENT: INSTRUMENT NO. 84 OF 1997 I refer to the above subject ,natter regarding your 1neniorandum No. DA/ 101/ 13/ 1/ AMM dated 21 s t July, 1997. J20 I iuish to notify you that I nn, not prepared to retfre a;, the n1oment. I therefore 1 en1ain and conti-nue to Luork until the right time of satisfaction comes. "Time will tell .. .. ... ......... " He withdr ew this letter by his letter of 3Qtr. June, 1998. The Court found that the letter of 30th June, 1998, was a fulfillment of the Appellants intention to retire \Vhen "the right time of satisfaction comes". The Court found that the Appellant was a ruau in full un rlerstanding of lhe steps he was deliberately taking. According to the trial court, the Appellant applied to retire by a given date. He was granted the retirement. He then wrote two letters expressing gratitude for the grant of that retirement. J21 The court concluded that the Appellant could not be allo\X.1ed to come back and arg1J.e that he \Vas \ivrongfully terminated. On the documentary evidence, on record \\Te totally agree with this conclusion. The cases cited by the Appellant cannot assist the Appellant because retirement in those cases \Vas not applied for. In the case of Nyoni, for instance, it was a claim for premature retirement of the Plaintiff contrary to the provisions of the Pensions Act; and in Chintomfwa. case, the issue was one of wrongful retirement. On all the grounds, this appeal cannot succeed. In the net result, we find no medt in the appeal. It is, accordingly, disrnissed. We 1nake no order as to costs. J22 I • E. L . Sakala CHIEF JUSTICE /)-----nJ'\.. ...... t/. ........... ................ . S. Silomba H . Chibomba SUPREME COURT JUDGE SUPREME COURT JUDGE