Public Service Pensions Fund Board v Levy Mwelwa (APPEAL NO. 171/2017) [2018] ZMCA 604 (3 October 2018)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 171/2017 HOLDEN AT KABWE (Civil J urisdiction) BETWEEN: APPELLANT LEVY MWELWA RESPONDENT CORAM: Chashi, Lengalenga and Siavwapa, JJA ON:23rd May and 3 rd October 2018 For the Appellant: N. Matele (l'vls.), In-House Counsel For the Respond ent: M essrs Loboko Chambers(N/ A } JUDGMENT CHASHI, JA d e livered the Judgm ent of the Court. Cases referred to: 1. Nk.hata and 4 Others u The Attorney General (1966) ZR 124 2. Wilson Zulu u Avondale Housing Project (1982) ZR 172 3. Victor Namakando Zaza u Zambia Ele ctricity Supply Corporation Limite d (2001) ZR 56 4 . Kitwe City Council u William Ng 'uni (2 005) Z. R. 57 Legislation referred to : The Public S ervice Pe n s ion A ct, No. 35 of 1996 2 The Defence A c t , C hapte r 106 of the Law s of Zambia l /' s -J 2- The Appellant who was the 2 nd Defendant 1n the court below, appeals against the Judgment of the High Court delivered at Lusaka on 9 th March, 2016, in which the trial Judge ruled in favour of the Respondent, who was the Plaintiff. For convenience, we shall refer to the Appellant as t he Defendant and the Respondent as the Plaintiff, for that is what they were in th e court below. The brief facts leading to t his appeal are that the Plaintiff commenced an action in the court below by way of Writ of Summons against the Attorney General and the Public Servic e Pensions Board (he reinafter referred to as t h e De fendant)seeking the following reliefs: 1. As against th e Attorney General: (a) K53,689. 95being unpaid allowan ces from April 2004 to July 2008 (b) K80,094.40being balance on accrue d le ave days commuta tion (c) Intere st (d) Costs 2. As again st the Defendant: (a) K 84 1,047.22 being unde rpaym e n t on the lum p s um (bl a n o rder tha t the 2 n d De fe nd an t adjus ts t h e Pl a in t iff's mo nthly Pe n s ion by a pplying the last drawn sala ry it•) r~efund of I<.7,753 .32 wron gly d cclu c c d as Gover n m e nt debt d 1 Interest I ' I ' (e) Costs -J 3- According to the accompanying state m en t of claim , the Plaintiff was enliste d as a soldier in the Za mbia army in 1973 and rose through the ranks to the rank of Warrant Officer Class One (WO 1), which position h e helduntil 10th July 2008 when he finally left employment. Over the p eriod of his employment, t h e Plaintiff was a contributing m ember of the Public Service Pensions Fund (PSPF)administered by the Defendant. The Pla intiff was during his e mploy m e nt entitled to the following monthly allowances: (a ) Ra dio operations K32 l . 58 (b) Ge n e ral instructions K32 l . 58 (c ) Responsibility (d) Night a llowance K32 l. 58 K35.00 (e ) Exposure a llowance K50.00 (f) Tra d e pay for A 1 K20.00 In April 2004 , for unexplained reasons, the Zambia Army unilaterally stoppe d paying the Pl aintiff th e allowc=inces as listed a bove, wh ich according to the Plaintiff resulted in him suffering a fin a ncial loss of K53 , 689. 95 from April 2 004 to 31 "1 J uly 2 008 when h e retire d. According Lo the Pla intiff, as pe r his conditions of scn·ice contai n ed in the AC Instru c tion 05/2 003, th e Za mbia Arm y was s upposed to be pa yi ng hi1n his monthly s a lary a nd a ll owa n ces after the ret1 rc m e nL until his fu ll be nefits we re paid . Th e Plain t iff ave rre d ; h ~it ,at t he ti m e of h is retirement , he w ~1s e nt it led o ()() ;, l<..·a\ ·c days \,·h1L·h \,·he n co mmu ted amou nted to !, 1 +6.og -1- -l-0 o t \,·hic h a sum I \ I II ; \ - -J 4- of K66 ,000.00has been p aid, leaving a balance of K80 ,094.40 which h e claims h as to date not been paid, despite b eing r emoved from the pay roll. The Plaintiff furth e r averred th a t , he was upon retirement entitled to a pension benefit and payment of a lump sum . Accordi ng to the Pla intiff, when calculating the lump sum , the Defendant d id n ot apply th e last drawn salary as at 31 st July 2008 b ut inste ad applie d the salary ruling as at 31 st December 2007, which resulted in an underp ayment of K841,047.22 and a loss on his monthly pension annuity. In a ddition , it was the Plaintiff's averme nt that the Defendant unilaterally recovered the s um of K7,753.32 as a Government d e bt which the Plain tiff denies owing . The Attorney General did not settle a defence. Whe n the De fe ndant settled its defen ce , it a dmilted certa in paragraphs of t h e statement of claim to the e ffect that th e Plaintiff was employed in the Zambian Army in 1973 and t h a t h e was retired on medical ground s . It a lso adm itted that the Plaintiff was a contributing member of its fund. Th e Defendant therea fte raverred that the Pla intiff retire d in Nove mber 2 007 and not July 2008 a nd th at hi s pension was calculated b ased on th e No\'e mber 2007 sala ry. It was th e De fend an L's a sser t ion that the Pla in Liff \,:as not en ti tied to the clai m as his lump sum pa yment was calculated us1n !_; a mo n g oth e rs Lhe las t a n nucil salary at the Lim e o f hi s rctirc rnl'n t I' -J 5- Regarding the Government debt, the Defendant admitted making the deduc tion as it was the amount owed to it for contributions which were not remitted between 21 st April 1986 and 31 st December 1992. The Plaintiff gave evidence in the court below, which evidence wa s exactly as contained in the statement of claim. In addition , the Plaintiff submitted t hat on 15th November 2007, he a ttended a medical board exa mination a t Maina Soko Hospital a nd the results of such examination were not availed to him. Thereafter , he wen t back for work and continued t o receive a salary, during whic h period he received a salary incre men t from K2,296.36 to K3 ,21 5.8 l un til August 2008 when h e was informe d of his ret ireme n t. According to the Plaintiff, th e Defendant ought to have bas e d t h e ir calcula tions on t h e n ew s alary s c ale th at was obtaining a t the tim e h e wa s informe d of hi s retire m ent. The Defe nda nt calle d on e witness , Will ie S iame, (DWI) who testified th a t, after the Plai n t iff received his pay ment vou ch er, h e lodged a co mplaint to th e e ffect t h a t h e h a d be e n unde rpaid . In order to dete rmine the veracity o f t h e complain t , DW 1 c o nd ucted an inve stigation into th e m aller arid discovere d th at the Pla intiff's e m p loyer 111a d e a n e rro r on t h e d ate o f retire m ent a nd th at th e retire m e nt d ate ho uld h a ,-c been J ul v 2008 when t h e Pla in t iff wa s info rme d o f his retir m e n t. He fu rthe r testifi ed t h a t a c h a n ge LO the re tire m e nt date wou ld h a ,-c a s ign ific a nt e ffec t on Lh e a mo u n t or pc- ns ion be n e fit s mn· cl to the Pla in tiff, as t h e calculat ions ,,·ould be bas ed o n the n ev: s <tla ry 1h c1 t was e ffecte d du r in g 1..hat peri od. In a cldiuon ,DW 1 tes t ified th ell 1f the . I -J 6- date of retirement was July 2008 , the adjustment to t h e lump sum would only be by KS0 ,000.00 and the monthly pension from K973.00 to about Kl , 100.00. After considering the evidence on record a nd t h e submission s by learned Counsel, the trial Judge as r egards the claims against the Attorney General, found that they h ad been proved on a balance of probabilities and the Plaintiff therefore succeeded on the claims for unpaid allowances and accrued leave d ays . As r egards the claims against the De fendant, the trial Court found that, the Plaintiff between 2 1st April 1986 and 31 st December 1992 m a d e no contributions to t h e Defendant's fund and the same we re rightly de ducte d as a governmen t deb t in line with s ection 22 (2 ) (b) of The Public Service Pensions Act1 . Th e learned t ria l Judge foun d th erefore th at the cla im was unsuccessful. The trial court furthe r found tha t the dale for relir em e n t was July 2008 and n ot November 2007 as tha t is the date when t h e Plaintiff was informe d of h is retirement and awarded him t he sum of K841 ,047 .22. La stly, t h e tria l Judge ordered an adj ustment of th e pensio n by applying the last drawn s ala ry . In sum m a ry, the learned tria l Judge fou nd m favor of the Plai n tiff a s fo ll ows: 1. As again st the Attorn ey Ge n eral (a)Th e s um of K5 3 , 68 9.95 being unpaid allowances from April 2004 l o July 200 8 . (b) 1'.8 0 , 094.40 b e ing acc rue d lean' dd~·s commuta tion. (c) In terest (d) Costs , ' • 2. As against the Defendant: -) 7- (a )K84 1, 047 .22 b eing u n d erpaymen t on his lum p s um. (b)An orde r that th e De fendant a djust s th e Plaintiff's m onth ly p e n s ion by a pplying th e last drawn salary . (c) Refund of K7,753 .3 2 wrongly de ducted a s government d ebt . (d )Interest (e) Costs it is wo rt h n oting tha t afte r the a ward of K7 , 753 .32 as s tated a bove , th e learn ed tria l Judge went on to state th at the claim for a refu nd of K7 , 753 .32 a s a government deb t faile d. Dissa t is fie d with the Judgmen t , the De fe ndant appe aled to this Court a dvancin g tw o grounds of a ppeal cou ch e d a s foll ows : 1. That the court below misdirected itself in law and fact when it h eld that the Respondent was underpaid his pension benefits by an amount of K841 , 047.22 and ordered that his monthly pension be adjusted using his last drawn salary. 2. That the court below furthe r misdirected itself in law and fact when it ordered that the Respondent be re funded the s um of K7 ,753.32 wrongly deduct ed as government debt. Al the hear in g of the a p peal, Ms . Matelc, oun sel fo r the Appel la nt relied o n t h e Appellan ts' h ead s of argum c n and augmented the same \,·1th b rie f oral sub m iss ion s . In ;ucl o f gro un d one , Cou n sel subm1llccl thci t th e informat io n rcgard 111 g the Plaintiff's re tire m ent date \,·c1s comm u~11catccl lo the Dcf{'t";d,mt b\· th e Pla intiff's emplo~-cr \\ h1ch sw tecl that the , , I -J 8- Plain tiff's r etire ment date was 15t h Novembe r 2007. The De fe ndan t acted on this information and compute d t he Plain tiff's p e nsion bene fits of which the Pla intiff was paid K386, 069.75, be ing one thir d of his benefits as a lump sum and th e rest would be paid as a monthly pension r epresenting a p eriod of 3 4 years . The s aid calculations were in accordance with Section 40 ( 1) (b) (ii) and Section 53 of The Public Service Pensions Act 1 • Counse l submitted that it was not brought to the atten tion of the Defendant a t the time of computation of the pension benefits that the Plaintiff continued workin g until July 2008 after his alleged termination of 15th November 2007. Further, Counsel con ced ed that a p erson cannot be retired retrospe ctively but contended t hat the Plaintiff would only be entitle d to th e differe nce be twee n w h at he had been pa id upon retire ment on 15th November 2007 and wh a t he h a d earne d in the period that h e c ontinued working b e fore h e was in fo rme d of his retire m e nt. Accordin g to Co un sel, the Pla intiff s h ou ld h a ve been paid K52 , 2 11 .83 being the diffe re n ce to acc oun t fo r the pe riod h e con tinu ed work ing up to 10 h July 2008 . We were re fe rred to page 97 o [ the record of a ppeal s hov. in g t h e c omputa tion s on t h e payment . Counsel furthe r s u b mitled th a t , the Pla in t iff's claim was p u rsuant to section 40( 1) (b) (i i) o f The Public Service Pensions Act 1and th erefore th e a m ount clai m e d must be calculated based on \,·hat is due to him un d er th e said la w. C oun sel argued that the Plaintiff's c laim of' J-(8-l 1. 0--1-7.22 as a n und e r paym ent was n ot suppo rted by . I ' , , -J 9- any law and that the Plain t iff did not demonstrate to the trial court how h e arrived at the saidamoun t. It was further pointed out that, the worksheet on which the Plaintiff calculated his benefi ts wa s not produced into court in accordance with th e rules on production of docum entary evidence. According to Counsel, the Pla intiff did not lay a proper found ation for the works h eet contained in the bundles of documents. Reliance was placed on Edward J. Imkwi nkelried, Evidentiary Foundations(cited in OTK Ltd v Amanita Zambia Ltd and Others (2011) ZMHC, 23 )with respect to layin g a foundation prior to offering a document into evidence; where it was sta ted as fo llows: "For our purpose, the most important procedural rule is that the proponent of an item of evidence must ordinarily lay the foundation before formally offering the item into evidence. For example, the propone nt of a lette r must present proof of its authe nticity before offering the le tter into evide nce. Proof of the le tte r's authenticity is part of the lette r's "foundation " or "predicate". Substantive evidence law makes proof of authe nticity a condition precedent to the le tte r's adm ission into e vide nee. " Counse l su b mitted that, the said worksheet was n o t subjec- t<?d to th e rules of evidence cu1cl a s such the Defendant was denied the opportun ity to chal lenge it by way of objection . We were re ferre d to page 182 o f the record , whi ch accord in g to Coun sel shO\\'l'ci the p u r po rte d p roduction of the documents a nd it is a t his stage th a t th e tr ia l Judge should ha,-c requested th e De fend an L LO n ·spond . According to Coull !:>cl, the: t ri al court erred in la ,, and fc1c1 !),. I I -] 10- admitting into evidence a document t h a t was not properly auth enticated. It was Counsel's further contention that at p age 184 of the record , the Plain t iff was unaware that his benefits were commuted into a lump sum and that the rema inder would b e paid out monthly. According to Counsel, this was indicative of the fact that th e Plaintiff was not knowledgeable on how th epension benefits ought to be calculated. In addition , Counselsubmitted that, the Defendant administers a d e fined be n efit Pe nsion Scheme which calculates th e benefit s on d efined paramete rs and the s a id parame ters are set out in The Public Service Pensions Act1. The defined pcns10n benefi t calculations are base d on how much is earned when one reti res and as su ch it cannot. b e altered. It was Counse l's con tention th at the t ria l Judge rejected t.he eviden ce of an expert witness with expe rience in computation of pension ben efits,based on the fact that he did not show proof of how h e a rrive d at the a moun t of K52, 211. 96. Counsel argued that at trial, th e witness did not h ave a ccess Lo the data base lo reLrieve the Pla intiff's record. An attempt wa s m a de to h ave t h e Judgm e nt reviewed a fte r the Pla intiff's fil e was re trie ved; h oweve r the said a pplication was rejected. Wi th regard to groun d two , it was Couns •l's contention lhv.tthe trial Judge conLradic ted herself in t he Judgmen t when at page 27 of t he record su=ned that the cl,1im fo r the refund o f K7,753.32 had n ot succeeded but wh en co nsidering the a \,·ards a l page 29, sLmcd that the claim had s u ccecd 0 c!. I ' -J 11- Counsel contended that, an attempt was made to have the Judgment reviewed but when the ruling was delivered , the trial Judge made no mention of the contradiction. Counsel further submitted that section 22 (2) (b) of The Public Service Pensions Act 1provides for withholding of any amount outstanding as debt to the Government or Defendant. Counsel opined th a t the deduction of K7,753.32 was within th e provisions of the law. Lastly, Coun sel prayed that the appeal b e allowed with costs. The Plaintiff was not in attendance at the h earing. We however, took in to c onsideration the writte n heads of argument which were before us. In resp onse to the first ground of a ppeal, it was su b mitted that the said ground of appealattacksthe findin gs of fact by the learn e d trial Jud ge. It was s ubmitted t hat an Appe lla te court will not reverse a finding of fact u nless it is shown that the findin g was pe rve r se, m a d e in the absence o f any re levan t eviden ce or m a d e u pon a misrepresenta tion . In s upport t h e reof, the cases of Nkhata and 4 Others v The Attorney General 1,Wilson Zulu v Avondale Housing Project2 and Victor NamakandoZaza v Zambia Electricity Supply Corporation Limited3 were cited. lt w,~ s pointe d out th a t t h e tr ial court m c1.de tv-.·o findin gs of fact; firs t ly th a t th e Pla in tiff was underpa id his Pension ben e fits; an d a ccordrn g to the Pla in tiff, this findin g " ·a s n o t pen·e rsc. The e\·idc nn: add u ced by the Plaintiff \,vas ,u1al vsccl by ;_he tria l cou rt I ' -J 12- and such evidence went unchallenged by the Defendant. In fact the Defendant acknowledged that they did not apply the Plaintiff's last drawn salary of August 2008. We were referred to pages 181 and 1 91 of the record. The second finding of fact was tha t the monthly pens10n be a djusted b y using the Plaintiff's last drawn salary . It was submitted that, the trial court in arriving at this fact relied on the evidence of the Plaintiff and that the failure by the Defendant to apply the last drawn salary resulted in a reduction of the Plaintiff's monthly p ension benefit. This was a lso adn1itte d by DWl at pages 27, 181 and 191 of the r ecord. It was further submitted that, regarding the Plaintiff's works heet at page 64 of the record, the said document was revealed to the Defendant be fore tria l commenced and th e De fend ant had it in its possession. The Defendant had many opportunities to raise any obj ection. It was a lso submitted that, during examin ation in chief, the Plaintiff expla ined to th e Court how h e arrived at the figure of K 841 , 047.22. We were re ferre d to pages 27 a nd 181 of th e record. With regard to ground two , Counsel submitted t h a t it wa s c lear at p a ges 2 7 of the record th at t h e sum of K7 , 753.23 wa s not a warded to th e Plain tiff. Coun s el urged us to dismiss th e appeal \\·ith cos ts. We ha\T considered the a ppea l toge th er with th e a rgumen ts in t he rcspecu\·c h eads of argument a n d th e aut h ori ti e s cited . \ Ve have a lso cons ide re d th e ,Judgme nt of th e lcc1rnccl ,Ju d ge in the court be 1m ,· . " -J 13- The m a in issue for determination in ground on e is centered on the Plaintiff's effective d ate of re tirement. Which when resolved will have a bearing on the b enefits due and payableto the Plaintiff. It is not in d ispute that the Plaintiff was an employee of Zambia Army on a p e rmanent and pensionable basis. The terms and condition s under which the Plaintiff served were covered under TheDefence Act2 . The Plaintiff was retired on medical gr ounds in accordance with Regulation 9 (3) Third Sch edule serial XVI of the Defence Force (Regular Force) (Enlistment and Ser vice) Regulations of The Defence Act2and le ft e m p loymen t in August 2008. As regards to matte rs relating to his p ension b enefits, they were governed by ThePub lic Service Pen sions Act 1and in particular section 40 which provides for benefits for officers retiring on grounds of ill health. According to the documentary evidence on record , t h e Plaintiff received a payme nt vouch er as shown at page 53 of the recordon 10th June , 2009 of K386, 069.75 beinga lump su mpayrnent towards his p ension bene fits, wh ile the remain ing balance was lo be paid on a monthly basis. Attach e d to the payment voucher were lhe particulars of the a v,,ard which s h owed the breakdown of hew,' the Defendants a rrived at the figure ofK386, 0 69.75. Th e Plaintiffu pon receipt of his payme n t vouc h e r ; que-su o11ed t he compurntio n of his pension ben efils, as he noti ced that the Defenclan1 based the: calcu la tions on the Plainti ff's s,d, tn· o f November . 2007 and n ot his las t drawn salan· of ,J·c1h· l008. Further that he s,1id cornputation die! not akc int o ,h_' t <n 111 the -J 14- period he worked before leaving employment, being the period between November 2007 and July 2008. This is what prompted the Plaintiff to commence an a ction in the court below. A scrutiny of the evidence in the court below, in p a rticular the evidence of DW 1 and also the Defendant'sheads of argument,revealthat the Defendantadmits that the Plaintiff's effective date of retirement was July 2008 and not 15th November 2007 . In addition, the Defendant concedes that an employee cannot be retired retrospectively. In the case of Kitwe City Council v William Ng'uni4, the Supre m e Court held as follows: "1. It is unlawful to a ward a s alary or pension be nefits, for a p eriod not worked for because s u ch an award has not been earned and might be prope rly termed as unjust e nrichme nt. " We are of the view t h a t t h e a bove princ iple would a lso a p p ly with equal force in the con verse, a s is t h e case h ere whe re th e Plaintiff claims that the De fen dan t wh en com p uting his pe n s ion b e n e fits di d not take into account th e pe riod in wh ich th e Plaintiff worked before h e was informe d of his re ti re m e nt. The evic:!en c e on record rc; \·cals tha t t h e Pla intiff atte nd ed med ical boa rd examin ation s on 15 t h Nove mbe r 2 007 in orde r lo d e te rmine if th e Pla in t iff was fit lo co ntinue workin g , s u ch results \,·ere n ot a va iled to him until he rccei\·ed a lcnc r of retiremcn m Au gus t 2 008, wh ic h fa c t the Plo1nu!Ts e m p loye r a dm itte d . The lette r t h a t d clarcd ti ll· Plain t iff unfi t to continue \\·orking ,,·~is a d dressed to t h e 3 :,i S1 g11c d Squadro;1 uni t a n d n ot th e Plci in l I ff ~1 s I ' , , -J J 6- The Plaintiff on one hand a rgues that his pension b e nefits ought to h ave been calculated on his last drawn salary of July 2 008 w hich stood at K3, 215.81. According to the Pla intiff, using t h e last drawn sa la ry, the total a mount owed to him in b en efits is Kl , 234,870 .29 and a fter d edu ction of t h e amount h e had already received, the De fendant owes the Plaintiff K841 , 047.22. Per contr a, the Defendant contends that the Plaintiff s hould only b e paid a diffe r en ce between w hat h e h ad been paid upon his r etirement on 15 th November 2 007 and what h e had earn ed b e tween Nove mber 2 007 a nd July 2008 which amounts to K52 , 000.00. Certainly , h avin g found that th e Plaintiff was s till in t h e e mploy of Zambia Armyuntil Au gust 2008and that during that p criod,a salary in crement was effe cted , It follows therefo re that the Plain tiff's p ensio n benefits ought to h ave IJeen calculate d using his la st earne d salary as at 31 st July, 2 008 \vhich as we h ave determined is t h e effe ct ive date of re tiremen t. Perta ining to the Defendant's argume nt,we find th at argument n ot only to be u nre asonable but unfa ir , as it enta il s th at t he Appe llant wou ld receive a lump sum payment based on hi s sala ry at th e time o f his a lleged re tire m e nt of 15 th Nove mber 20 07and receive a nother paym e n t base d on the salary of 2008 . Th is would b e detrime nta l to th e Plain tiff as th e lump sum wou ld be based on t h e v,-rong rc1iremcnt d a te. In a ddition we fin d t h a t this argument d feats the whole p rin c iple of ben e fits be in g pa id on the ];:1 st drm,v n salary. We arc t h e re fore of th e vie w t h at the Pl c~i n tiff's pension be ne fits mu s t bt' re-calcu lated usi n g the fo rm u l;_ip:·escri bed b\' section 40( 1 )(Ll(i1) u s111g 3 l stJu ly 200 8 as the rct11T rnc 11t da te a n d t he I I . " -J ] 5- s hown a t p age 46 of the record . The Plaintiff was ther efore unaware of such findin gs. We find th erefore thatth e Pla intiff was fo r all intents and purposesstill in employm en t and continue d to r ender his s e rvices during the p eriod in quest ion unt il t h e month of Augu s t 2 008 wh e n h e was fin ally informed of h is retirem ent. In a d di tion , the Plaintiff's e mployer conside red t h e Pla intiff to still b e 1n e mployment so much t h at the Plaintiff received an inc reme ntdurin g the s aid pe riod and wa s actively con tributing to the De fe ndan t 's fund. It was t h erefore unla wfu l fo r the Pla intiff's employer to h ave omitted lhe p e riod between Novem be r and Au gust 200 8 and b y re ason of such omiss ion , the Defe n d ant proceed e d to compute the Plaintiff's pe nsion ben efi ts bas e d on th e wron g re t irem ent d ate . The De fenda n t t h erefore, o u gh t to h ave take n the pe r iod be tween No vember 2 007 and J u ly 2008 in Lo account w h e n comput ing t h e Pla in tiff's pen s ion pa ckage be ca u s e su ch an a ward h a d been rightly earned by th e Plaintiff. We a gree witl-i. t h e court be low th a t no e vid e n ce wa s a ddu ce d in t h e cou rt below from t h e Pla in t iff's e m p loyer to s h ow t h a t the Pla intiff h a d stoppe d working on accou n t of il l h e al th as a lleged. Th pa rties be ing in agreeme n t t h a t the effective d ate of re t ire m ent was Ju ly 2 008 , w h at therefore appears to be t h e bone of con tentio n bet\\-Cen th e pa r t ies is the quantum of pension ben efits due and payable to t h e Pla in tiff ,rn d which salarv scale is applicable 111 calcuki.ting t h e saidp e n s ion bene fit s. • , I -J 17- salary applicable of K3, 215.8 l. We Order that this matte r should be referred to the learne d Deputy Registrar for assessment in orde rto determine the exact amount of pension benefitsdue and payable to the Plaintiff rat h er than rely on t h e Plaintiff's unilateral calculation , especially in view of the fact that the amount endorsed on t h e Writ of Summons differs with the amount being claime d in the Statement of Claim. Ground one of a ppeal partia lly succeeds, s ubject to assessment by the Deputy Registrar. As regards to ground two , the trial Judge at page J20 of the Judgment consider ed the evidence on record and found that indeed during the period between 2 1st April 1986 and 31 st December 1992, t h e Plaintiff m a de no contributions to the Defendant's fund. The tria l Judge t h e reafter considered th e provisions of Section 22 (2) (b) of The Public Service Pensions Act2 which provides as fo llows: "22 (2) A p ension or othe r benefits granted unde r this Act s hall not be assignable or transferable except fo r the purposes of s atisfying- (b) a d e bt due to the Fund or the Governme nt" Th e tria l Judge after assessing the above pro vision of th e law came to the con c lu sion that the refund was ri g htly deducted as a Government d eb t. Howeve r ,a l page J28 and J29 , th e t ri a l ,Judge we nt on Lo a\,,:a rd th e Plaintiff th e re fu nd of K7 ,753.32 \\Tongly d edu cted as a Gove rnme nt d e bt. It isc lec1r 1hc11 the r e \\'c1S a contra diction 1n the Juclg mc111 : on o n e h and. t ht~ tn8.l ,Ju d ge m a d e a findin g th a1 th(' claim Co;- 1:1c re fu nd I ' - A -J 18- h a d failed but on the othe r sh e went on 1n considering a wa rds to state tha t t he claim h a d succeeded. We are of the view that the re wa s n o basis for its findin g that th e claim h a d succeed e d in the awarding of the claims. We a lso n ote th at the Plaintiff in his h eads of argument, rightly so we mus t a dd, concede d that h is claim for the refund wa s not award e d. We find t h ere fore t h a t there was a contradiction and misdir ection and t h e s ame mus t be set aside . Th e n et re sult is that, ground one p artia lly succeeds, whic h is subject to a ssessmen t by the Deputy Regist rar and the second ground succeeds. Each p arty s hall bear its own cos ts of t h is a ppe al J . CHASHI COURT OF APPEAL J U DGE F . M . LENGALENGA M. J . SIAVWAPA COU RT OF APPEAL JUDGE COURT OF APPEAL J UDGE ,,