Zambia Consolidated Copper Mines Limited v Mpundu (Appeal 32 of 2007) [2007] ZMSC 50 (4 December 2007)

IN THE SUPREME COURT OF ZAMBIA (cid:9) APPEAL NO. 32 OF 2007 HOLDEN AT NDOLA (CIVIL JURISDICTION) B E T W E E N: ZAMBIA CONSOLIDATED COPPER MINES LTD (cid:9) APPELLANT AND DARIUS MPUNDU (cid:9) RESPONDENT 40 (cid:9) Coram: (cid:9) Mumba, Mushabati, uS and Kabalata, Ag. J. S On 4th September, 2007 and 4TH December, 2007. For the Appellant P. M. Chamutangi - Legal Counsel For the Respondents F. Chalenga of Fredie and Company instructed by Kongwa and Company JUDGMENT S Mushabati, IS., delivered the judgment of the Court. (cid:9) (cid:9) J 2 This is an appeal against the High Court judgment. The respondent, a former employee of the appellant, sued the appellant for special damages for wrongful termination of employment and for full payment of his retirement benefits from Mukuba Pension Scheme. The undisputed facts of this case are that the respondent worked for the appellant Company from 1966 up to 31st October, 1993 when he was pre- maturely retired at the age of 50 years. His official compulsory retirement age should have been 55 years. Upon his early retirement he was paid terminal benefits under the early retirement scheme which were calculated at 25 months salary + 25 years served x by his current salary. Had he retired at the age of 55 years he would have served the appellant Company a total of 32 years and his terminal benefits would have been 25 months salary +32 year x his current salary. The respondent, having been put on early retirement, claimed that he was entitled to be paid terminal benefits he would have been entitled at the age of 55 years. r claimed for special damages. The question that was really before the lower court was whether the respondent was entitled the terminal benefits for the period worked or to terminal benefits he would have been entitled had he reached the age of 55 years and whether he was entitled to special damages. J 3 The court below resolved the dispute in the respondent's favour that he was entitled to be paid benefits which he could have received upon his attainment of the age of 55 years and that he was entitled to some damages. The appellant appealed against these awards and filed two grounds of appeal namely: 1. In relation to the judgment dated 3 Oth June, 1997 the court below erred in law in its awards of damages giving the respondent 25 months salary plus 32 years served x by salary at the time of retirement. 2. In relation to the ruling dated 26th May, 2004 the court below erred in law in interpreting its judgment which had the effect of re-instatement of the respondent These grounds were argued as one and the thrust of the argument was that the respondent was only entitled to damages equivalent to his two years salary received at the time of his retirement. The respondent merely relied on his written heads of argument. It was argued that the respondent was entitled to benefits payable at the normal retirement age of 55 years and so in this regard he should have been paid under the conditions in force from 18th June, 1994. Under these conditions the respondent was entitled to 28th months salary plus one month salary for each year completed. J4 We have carefully considered the evidence on record and the heads of argument by both counsel. There is no doubt in our minds that the respondent was pre- maturely retired. Pre-mature retirement was available to an employee who had reached the age of 50 years. This was per evidence of D. W.1 Modest Kunda. The letter that the respondent was written stated that he was eligible for early retirement. This letter is at page 25 of the record of appeal. This letter is dated 18 th May, 1993 and the respondent's last working day was 315t October, 1993 after six months notice. A retirement is not the same as a unilateral termination of employment by the employer. Under retirement an employee is entitled to benefits that are provided for under the early retirement scheme whereas in the later case he is entitled to damages which may range from the length of the notice to the maximum of 2 years salary. If one is paid under a retirement scheme then he cannot again be paid damages payable under the latter scheme i.e under a breach of contract. The respondent was entitled to 25 months salary plus 27 years x by his current salary under the early retirement. We do not understand why he was awarded special damages which, in our view, were not even proved by evidence. This award was in addition to a retirement package worked on the normal retirement age as opposed to what he had worked for. Even if the respondent may have j 5 been deemed to have reached the age of 55 years when he was retired his terminal benefits were still going to be worked out on the salary received at the time of retirement and not as argued on his behalf that he was entitled to be paid under the conditions which came into effect on 18th June, 1994, when he was already retired. As the conditions provided for an early retirement, the respondent was entitled to be retired under that scheme. It was therefore, not correct for the appellant to argue that the respondent ought to have been paid 2 years salary as damages because in their own letter, referred to above, was couched in very clear language. The respondent was put on early retirement in accordance with the conditions which were in place then. So the termination of the respondent's employment was not wrongfully done as to be awarded damages based on the two year principle laid down by this court. Had it been unlawful and that he had not reached the retirement age then damages worked on 2 years salary would have been applicable. In our well considered view the respondent in this case was only entitled to the benefits under the early retirement age, nothing more and nothing less. The learned trial judge therefore, erred in law and fact when he awarded the respondent retirement benefits under a wrong scheme and special damages. We are therefore, for a different reason, allowing this appeal. The awards made by the J 6 court below are set aside. He is only entitled to what he wcrked fcr, na nely 25 months salary plus 27 years served multiplied by the rnonthl s!ar,' h2 received at the time of his retirement. This award shiI be less of any money paid, if any. We make no ord€r a; costs. F. N. M. Mumba SUPREME COURT JUDGE C. S. Mushaati SUPREME COJR1ThUDGE to / T. Aabafâ ACTING SUPREME COURT JUDGE