Kalubi Kjeller Muyunda v Council of the University of Zambia (Appeal 109 of 1999) [2001] ZMSC 146 (10 April 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 108/99 BETWEEN: KALUBI KJELLER MUYUNDA APPELLANT AND COUNCIL OF THE UNIVERSITY OF ZAMBIA RESPONDENT Coram: Chaila. Chirwa. Chibesakunda, JJS 12rh October, 1999 and 10,h April, 2001 For the Appellants : Mr. Mundia A. Sikatana of Veritas Chambers For the Respondents:______ Mr. Chileshe A. Chonta of Ellis & Company _________________ JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal by the appellant against the decision of the Industrial Relations conn refusing to order reinstatement. The brief facts of the case arc that the appellant was employed on Permanent and Pensionable conditions of service by the Council ot the University of Zambia, hereinafter referred to as “the respondent I he appellant worked for a number of years, going through a number ol promotions until site became a caterering officer. She became ill and needed monev to go for specialist treatment outside Zambia. She applied to the respondent for an early retirement, The respondent considered her request and granted it. Before she was retired, the respondent employed somebody to understudy her. After she was retired, she was placed on a contract of 2 years, which she served. After she completed her 2 years contract, she decided to take the case to the lower court and claimed that she had been wrongly retired and prayed for reinstatement and that she could work up to the age of 60 years. She has mainly relied on one ground of appeal which is that the learned trial Judge and the Hon. Members of the Industrial Relations Court misdirected themselves in their judgment in that having rightly found in favour of the appellant to the fact that rhe termination of the employment of the appellant was premature, unlawful and contrary to the conditions of service and therefore null and void, still declined ro reinstate the appellant to her employment without stating what circumstances led them to such a conclusion. The appellant’s counsel Mr. Sikatana argued very strongly on her behalf that the court did not disclose rhe circumstances that did not warrant the reinstatement and that the respondent did not show any convincing grounds as to how the reinstatement of the appellant could have been prejudicial to the interests of the respondent. The Seamed counsel further argued that after the appellant had been offered 2 years contract, the court should have, upon an order of reinstatement, held that the period of her employment under the contract be deemed to be part of her continued permanent and pensionable employment. The learned counsel further argued that her premature retirement did not arise out of a disciplinary charge and that the conduct of the respondent forced the appellant to accept the premature retirement package which was grossly unfair since the matter was of life or death and that she had no choice but to accept the money. The learned counsel for the appellant further argued that the court misdirected itself when it ordered that the appellant was deemed to have retired at the age of 55 years. In the alternative, Mr. Sikatana argued that his client deserved special award and urged the court to give the appellant compensation for 3 years. He drew our attention to the fourth edition of Sweet and Maxwell on the Law of Termination of Employment by learned author Robert Upes. For the respondent, Mr. Chonta argued that there was no merit in the demand for reinstatement. He drew our attention to die provisions of section 85 of the Industrial Relations Act. which deals with substantial justice. The counsel relied on the case of ZAMBIA NATIONAL PROVIDENT FI ND VS ROWLANDS Ml EI SA SCZJ NO. 19 OF 1995 to support his argument on reinstatement where the litigant must prove discriminations on one or more of the grounds under section 108. He drew our attention to the case of Mwanshi Chiieshe vs ZCC. M, SC Judgment No. 10 of 1996 where this court considered rhe question of substantial justice and the counsel invited us to consider the facts of the case and urged us to dismiss rhe appeal. We have considered the facts of the case and the judgment on the record. The evidence clearly shows that the appellant herself applied for early retirement, which the University Council gave. She was placed on a 2- - J4 - year contract, which was accepted and she worked for 2 years. The facts did not disclose that the appellant was either discriminated against or was unfairly treated. The appellant herself initiated the move for early retirement and the University Council gave that request. The University Council, when asked for early retirement, employed somebody to understudy the appellant. The appellant was paid her benefits and worked further on a contract for 2 years. In our view the appellant cannot have her cake and eat it. She initiated the move for early retirement and the request was granted. The lower court did not err in refusing reinstatement. We find that the facts of the case cannot justify compensation beyond what she was paid. There is no merit in this appeal and the appeal is, therefore, dismissed. As to costs, we have taken into account that the appellant is ill and we make no order as to costs. M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA L. P. CHTBESAKUNDA SUPREME COURT JUDGE SUPREME COURT JUDGE