Attorney General v Samuel Mwangala and Ors (APPEAL NO. 133/2007) [2013] ZMSC 75 (23 September 2013)

J1 THE SUPREME COURT FOR ZAMBIA APPEAL NO. 133/2007 HOLDEN AT NDOLA (Civil J uris diction) BETWEEN: THE ATTORNEY GENERAL APPELLANT AND SAMUEL MWANGALA AND OTHERS RESPONDENT CORAM: Mambilima, D. C. J, Silomba, Mwanamwambwa, J. J. S. On the 29th September, 2009 and 23rd September, 2013. For the Appellant: Mr J . Simachela, Deputy Chief State Advocate, Attorney General's Chambers. For the Respondent: Mr Pikiti, of Messrs Pikiti and Company. JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. The Attorney General V. Francis Brown Chafwa Mutale, Appeal No. 137 of 2005 J2 2. Samuel Miyanda V. Rayman Handahu Z. R. (1994} SJ 39, SC. 3. Zambia Oxygen Limited and Zambia Privatization Agency V. Paul Chisekula and others (2000} Z. R. 28 4. Ireen Chinjavata V. Administrator General, (2004) Z. R. 184 Legislation referred to: 1. Acts of Parliament Act, Cap 3, Section 10. 2. The High Court Act, Cap 27, Order 36, Rule 8 of the High Court Rules. 3. The Judgments (Amendment) Act No. 16 of 1997, Section 2. When we heard this appeal, the late Hon. Mr. Justice S. S. Silomba was part of the Court. He retired and later passed away. Therefore, this Judgment is by the majority. This is an appeal against the Judgment of the High Court, dated 30th March, 2006. By that Judgment, the Learned trial Judge awarded the Respondents mealie meal monthly subsidies, upkeep allowance, repatriation allowance and costs. The brief facts of this matter are these: two groups of retired Zambia Army officers took out two separate actions in the High J3 Court, under cause numbers 2002/HP /0375 and 2002/HP / 1035. The two matters were consolidated in 2003 and heard as one. The Respondents' action in the High Court was for: 1. Mealie meal monthly subsidies; 2. Upkeep allowance of Kll0,000.00 (old currency) for the month of January 1997 and arrears with interest; 3. Repatriation allowance; and 4. Costs. When the matter came up for trial in the Court below, Counsel for the Respondents, informed the court that only two issues remained to be determined. That is, upkeep allowances and repatriation allowances. The case for the Respondent rested on the evidence of PWl, Samuel Mwangala and PW2, Herold Ng'andwe. Their evidence was that the Respondents retired from the Zambia Army on various dates, between the year 1997 and 2000. That they were entitled to be paid Kl million (old currency), as repatriation allowance before they could vacate the Army houses in the Army Barracks. That the Kl million was no longer adequate for the Respondents to transport their families and household goods to their various destinations where they intended to settle. That the Army should allow them to obtain 3 quotations each, from transporters, so that they are paid in accordance with the price of the lowest quotation. That they should be paid their upkeep allowance from January, 1997, up to the date each one retired, with J4 interest. They also demanded payment of mealie meal subsidies from the time they retired up to the time each one was paid their terminal leave benefits. That their terminal leave benefits were delayed and hence they should be paid their mealie meal subsidies at 50kg bag of mealie meal per month. The Appellant called one witness who told the court that the term 'regular service personnel' means one who is in the regular employment of the Army. That an officer ceases to be a 'regular service personnel' if the officer is discharged, dismissed retired or deceased. That the Respondents were entitled to upkeep allowance which the Army had paid into Court because the Respondents refused to get it. That they were also entitled to Kl , 000,000.00 as Repatriation allowance but that at the time the Respondents retired, the Army had no money. That the revised circular on repatriation allowance came into effect on the 1st of November, 2009, and that most of the Respondents were not entitled to receive repatriation allowance at the new rate. On the 30t h of March, 2006, the Learned trial Judge passed Judgment in favour of the Respondents and said: "as the Government/Defendant found the need to revise the allowances because they were inadequate, so is the Kl million entitlement of the Plaintiffs not adequate at present. In the circumstances, I find that the Plaintiffs are entitled to payment of the current repatriation allowances of their category i.e KG million for those in Division I KSmillion for those in Division II and K4 million for those in Division Ill, whichever is JS applicable. I award the Plaintiffs the above amounts as payable of their repatriation allowances. I will now come to the payment of upkeep allowance. DWl conceded that the Plaintiffs were entitled to upkeep allowance of Kl0, 000.00 per month but which was raised to KlS,000.00 per month. He also conceded that the Plaintiffs had accumulated up to Kll0, 000.00 each which has been paid into Court. I will therefore, award the Plaintiffs the claim on upkeep allowance. As the Plaintiffs did not retire at the same time, the calculation will be in accordance with the actual months each Plaintiff was not paid. Lastly, I will deal with the mealie meal subsidy allowance. This entitlement was for all regular service personnel of all ranks. The Subsidy is for all personnel in regular service. According to DWl, the Subsidy was also payable to retirees on humanitarian grounds up to when the retirees received payment for their leave days. I feel that the Subsidy of mealie meal, the Plaintiffs should be entitled i.e up to when each received payment of his leave days and not when they would be paid their repatriation allowance. Accordingly, I award the Plaintiff the mealie meal Subsidy allowance as stated above. To the extent stated above, I find that the Plaintiffs have proved their case upon a preponderance of probabilities. I therefore, enter Judgment in favour of the Plaintiffs as above stated. The amounts found due to each Plaintiff but except that paid into Court will attract interest at the current bank deposit rate from the date of the writ to date of Judgment and thereafter at the current bank lending rate as determined by the Bank of Zambia till full payment. I also award costs to the Plaintiffs, such cost to be agreed upon, in default to be taxed." There are two grounds of Appeal in this matter; which are: 1. That the Learned trial Judge in the Court below misdirected himself in law and fact when he held that the Respondents are entitled to payment of repatriation allowance in line with Public Service Management Division Circular No . B 15 of 1999 dated October 27 , 1999 . J6 2. That the Learned trial Judge in the Court below erred in law when he held that the Respondents be awarded the mealie meal subsidy allowance up to the time when each received payment of his leave days. On behalf of the Appellant, Mr. Simachela argued in Ground One that the introduction of the Public Service Management Division Circular No. B 15 of 1999 was to address the administrative problems associated with the issue of payment of repatriation allowance. That what is crucial is that the effective date of the Circular is 1st November, 1999 and applicable only to officers who retired on, or after that date . That the lower Court misdirected itself when it held that the Respondents should be paid in line with Circular No. B15 of 1999. That the Respondents are entitled to repatriation allowance of Kl million which was paid into Court on 14th February, 2004 and was paid out by counsel for the Respondents on 1st August, 2006 to cater for one category of the Respondents. That the other category of the Respondents received their payment on the 31 st of August 2007. That the Respondents are only entitled to interest from the date of retirement to March 2003, when payment was ready but was rejected by the Respondents. He cited the case The Attorney General V. Francis Brown Chafwa Mutale111 , where this Court held that "it is now an established principle that where one loses a chattel, the value of that chattel shall be its value at the time of the loss and not at the time of Judgment. " J7 Mr. Pikiti, on behalf of the Respondents argued on this ground that the Respondents were entitled to payment of repatriation allowance in line with Circular No. B15 of 1999, because the Appellant had neglected to pay the Respondents their repatriation allowance at the time of their retirement. That paying the Respondents at simple interest would not be adequate looking at the depreciation of the kwacha. That the offer to pay the Respondents the Kl million came six to seven years after the date of retirement and after the cost of travel had changed. That therefore, the Kl million is not enough. That the Government reviewed the repatriation allowance owing to the high cost of living and upon recognizing that the K 1 million is not enough as repatriation allowance. e We have considered the evidence and submissions by both parties on this ground. Public Service Circular Number B.15 of 1999 stated as follows; "in order to address the administrative and financial problems associated with the implementation of the provision of General Order No. 197 on the issue of Payment of Repatriation and Vocational Leave Allowances, Government has decided to streamline payments of these allowance as follows with effect from 1st November, 1999: (a) Repatriation Allowances (i) (ii) Super Scale officer - KS,000,000.00 Division I officer - KG,000,000.00 (iii) Division II officer - KS,000,000.00 J8 (iv) Division Ill officer - K4,000,000.00 (v) Classified Employees - Kl, 500,000.00. {b) Vacational Leave {a) .... .'' The Circular goes further to provide that: "Controlling Officers are informed that the above rates will only apply to officers who either retire or proceed on vacation leave on or after the 1st of November, 1999, respectively.'' From the above, it is clear that the circular number B.15 of 1999 only applies to personnel, who retired after the 1st of November, 1999. From the evidence on record, it is clear that only one officer is entitled to be paid repatriation on the new rate because that officer retired in the year 2000. It is trite law that the Law does not apply in retrospect unless the Act specifically states otherwise. See: Section 10 of the Acts of Parliament Act, Cap 3 of the Laws of Zambia. There is also a presumption at law that a Law shall not have retrospective effect. We don't see why this principle should not apply in a similar way to Regulations such as Circulars. Further, in the case before us, the Public Service Circular No. 15 of 1999 clearly states the date when it will come into effect and to which categories of staff it will apply. We find that the trial Court misdirected itself when it held that the Respondents should be paid in accordance with the above Circular. Accordingly, we allow ground one of appeal. J9 Coming to the issue of interest, we note from the Record of Appeal, that the Appellant conceded to awarding the Respondents interest on the repatriation allowance, to cover for the time the Army delayed to pay the repatriation allowance. We consider this as consent from the Appellants and award the Respondents interest on the repatriation allowance already paid to them. Under ground two, the Appellant argued that the words 'regular service personnel' do not include a retiree. That the words should be given their natural and ordinary meaning of the words in the issue . Counsel cited the case of Samuel Miyanda V. Rayman Handahu121 . It was held in that case that: "when the language is plain and there is nothing to suggest that any words are used in the technical sense or that the context requires a departure from the fundamental rule, there would be no occasion to depart from the ordinary and literal meaning and it would be inadmissible to read into the terms anything else on grounds such as of policy, expediency, justice or political exigency, motive of the framers and the like." He finally submitted that since the Respondents had retired, they ceased to be regular service employees and therefore, ineligible for mealie meal subsidy allowance. The respondents argued on this ground that although the guidelines on mealie meal subsidy restricted it to 'regular service J10 personnel', the Army in its own wisdom nevertheless, established an administrative practice of extending the facility to retirees who had not been paid their leave dues. That by this administrative practice, the Army went a step further and improved upon the general guidelines which restricted the mealie meal subsidy to 'regular service personnel' and thus created an improvement which had become embraced as a part of the Condition of Service. That denying the Respondents the mealie meal subsidy which other retirees in equal circumstances had enjoyed would be altering their conditions of service and would be unfair and discriminatory. The case of Zambia Oxygen Limited and Zambia Privatization Agency V. Paul Chisekula and others131 was cited to buttress the above point. It was the Respondents submission that this Court held in lreen Chinjavata V. Administrator General,141 that "awards for damages must take the devaluation of the Kwacha into account. It is not a matter of multiplying previous awards by the amount to which the Kwacha has been devalued. Courts must take into account the general cost of living and real value that will be received." We have considered the evidence and submissions on this ground. We wish to state from the outset that we do not agree with the argument by the Respondents that they are entitled to be awarded mealie meal subsidy because it's a condition of service which they are enjoying and cannot be taken away. We agree with the principle set out in the Zambia Oxygen Limited case cited • . • Jll above . The principle is that a condition of service already being enjoyed by employees cannot be altered to their disadvantage without their consent. However, we are of the view that the principle in that case does not apply in the matter before us. This principle applies to a condition of service. The conditions of service for the award of mealie meal subsidy are set out in the Adjutant General instructions, at page 22 of the Record of Appeal. They state as follows: "a mealie meal subsidy has been reintroduced in the Army as part of the conditions of service for eligible service personnel. This entitlement is with effect from 28th February, 1992 ... the provision of mealie meal under this scheme is for Regular Service Personnel of all ranks and civil servants seconded to Services.'' The above quote shows that the mealie meal subsidy is meant to benefit Regular Service Personnel only. The Respondents in their argument conceded that Regular Service Personnel does not include them; but that they should be given the mealie meal subsidy on compassionate or humanitarian grounds. We do not agree with this argument because it is not supported by law. Humanitarian grounds are not a condition of service that a person can claim as a matter of right. They may ask for it from the Appellant, purely on humanitarian or compassionate grounds. The Appellant has discretion to give or not to give it. Therefore, the Respondents cannot bring a claim to Court to compel the Appellant to give them an allowance which they are not entitled to . Having rejected the J12 Respondents' argument on this ground, we find merit in Ground Two and allow it. We therefore, order that only the Respondents, who retired after the 1st of November, 1999 be paid the balance of their repatriation allowance in accordance with Circular No . B . 15 of 1999. The Respondents, who retired before 1st November, 1999 must be paid interest on the Kl million, repatriation allowance, already paid to them. The interest shall be at the average short term bank deposit rate, from the date of the writ to the date of this Judgment. This is pursuant to Order 36, Rule 8 of the High Court Rules . Thereafter, we award interest at the current lending rate, determined by the Bank of Zambia, up to the date of settlement. This is pursuant to Section 2 of the Judgments (Amendment) Act No. 16 of 1997 of the Laws of Zambia. Due to the nature of this case, we make no order as to Costs. \ :s::==,-- I. C. MAMBILIMA DEPUTY CHIEF JUSTICE