Zesco Ltd v Chabwe (Appeal 130 of 2015) [2016] ZMSC 270 (1 September 2016)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 130/2015 HOLDEN AT KABWE SCZ/8/178/2015 (Civil Jurisdiction) BETWEEN: ZESCO LIMITED AND APPELLANT VICTOR CHABWE (In his capacity as Administrator in the estate of DAVID KABASO) RESPONDENT CORAM: Phiri, Muyovwe, Kabuka, JJS. On the 5th April, 2016 and 1st September, 2016. FOR THE APPELLANT: Mr. M. Z. Zaza, Legal Officer, ZESCO Limited. FOR THE RESPONDENT: Mr. C. Mukonka, Messrs. Caristo Mukonka & Co. JUDGMENT Kabuka, JS, delivered the Judgment of the Court. Cases Referred to: 1. Zambia Electrity Supply Corporation Limited v Lubasi Muyambango (2002) Z. R. 22. 2. Anderson Kambela Mazoka, Lt. General Christon Sifapi Tembo, Godfrey Kenneth Miyanda vs Levy Patrick Mwanawasa, Electoral Commission of Zambia & Attorney General (2005) Z. R.138. 3. Swarp Spinning Mills Pic vs Chileshe and Others SCZ Judgment No. 6 of 2002. 3 1 * T f J2 4. Zambia Oxygen Limited and Zambia Privatisation Agency v Paul Chisakula and Others SCZ judgment No. 4 of 2000. 5. Riordan v The War Office [1959] 3 All ER 552. 6. Harris & Russell Limited v Slings by [1973] 3 All ER 31. 7. Barclays Bank Zambia Limited Pic v Zambia Union of Financial Institutions (2007) ZR 106. 8. Kabwe v BP Zambia Limited (1995- 1997) Z. R. 218. Legislation and Other Works Referred to: 1. The Superannuation Fund Act Cap. 284 SS. 26; 28 (1) (a); 33(b). 2. Stroud’s Legal Dictionary 4th Edition, 1973, Sweet & Maxwell, London, page 1802. This is the appellant’s appeal against a judgment of the High Court dated 21st April, 2015 which ordered the appellant to pay the respondent, retirement benefits in the sum of KI49, 952.15. The record from the court below shows that, on 20th April, 2004 one David Kabaso (“the deceased”) who was the plaintiff, sued the appellant company as defendant. A year or so later, on 23rd December, 2005 David Kabaso died. He was substituted with Victor Chabwe, the respondent in this appeal, as Administrator of the said deceased estate. For convenience, we i J3 will in this judgment refer to the parties as appellant, respondent and the deceased, respectively. The back ground facts of the matter are as follows. The deceased was employed as a Branch Manager of the appellant’s Mufumbwe Office, in the North-Western Province of Zambia. On the 19th of September, 2001 he was jointly charged with two other workmates for the offence of theft by public servant. On the same day, and arising from the same facts, the appellant also charged the deceased with the disciplinary offence of dishonest conduct and suspended him from work, for allegedly selling the appellant’s 2 x 210 litre drums of diesel. Upon trial of the criminal charge by the Subordinate Court, the deceased was on 13th October, 2001 convicted and sentenced to a 12 months’ imprisonment term. He later, successful appealed to the High Court, which on 30th August, 2002 acquitted him of the offence. In the meantime, the disciplinary process continued, as a month after the conviction by the Subordinate Court, the appellant in a letter dated 12th November, 2001, informed the T T J4 deceased he had been dismissed from employment. The deceased appealed the dismissal to the appeals committee and the appeal was heard a year later, on 19th November, 2002. The appeals committee initially upheld the dismissal. Upon considering the deceased representations, that he had a clean record of service for the whole period of almost 22 years he had worked for the appellant; and that he was away from the station at the material time that the offence was allegedly committed. The appeals committee accepted the deceased could have been implicated in the matter by his workmates, who actually disposed of the diesel in issue, in the deceased absence. The appeals committee further acknowledged, that the practice of barter system was a notorious one in the appellant’s rural branches such as the one where the appellant was stationed, where diesel was exchanged for services required by the appellant company. For that reason, the appeals committee also accepted the deceased explanation, that the 2 x 210 litres of diesel he was alleged to have dishonestly caused to be disposed of, was actually exchanged for some services meant for the benefit of the appellant company. The appeals committee J5 accordingly resolved to substitute the deceased’s dismissal with early retirement in the brackets indicated as a discharge. The appellant communicated its said decision to the deceased, in a letter dated 11th December, 2002 that he had been placed on early retirement with effect from the date of his dismissal. Consequently, that he was also eligible for long service gratuity. On the 14th of January, 2003 the appellant caused to be submitted to the Local Authorities Superannuation Fund (LASF) FORM S/4. Submission of this Form is ordinarily initiated by the employer. The FORM notifies LASF, that the employee’s employment has been terminated and also indicates the mode of such termination. In this case, the appellant notified LASF that the deceased’ employment had been terminated by way of retirement and that he was entitled to payment of retirement benefits under S. 28 of the LASF Act. Acting on the notification received from the appellant, LASF wrote a letter to the deceased dated the 16th of April, 2003. In this letter the deceased was informed that following upon his J6 retirement, he was entitled to payment of retirement benefits under S.28 of the Act. The letter also set out the computation of how the amounts due to the deceased were arrived at and further advised the deceased of the two options available to him for payment. The whole amount due to him was stated as KI49, 952, 151.36 (K149,952.15). The following day, 17th April, 2003 LASF wrote another letter, this time addressed to the appellant. In this letter, LASF was reminding the appellant of its accumulated arrears in employers’ contributions, amounting to K156,155, 493.51 (K156, 155.50). In view of this position, LASF requested the appellant to instead pay the deceased’ retirement benefits of K149, 952. 15 directly to him. The appellant did not reply to this letter for over a month until 23rd of May, 2003. In its letter of even date, the appellant informed LASF it was withdrawing its earlier instruction to have the deceased paid retirement benefits under S.28 of the Act. The appellant advised LASF it would instead be submitting a fresh request for payment of benefits on resignation or discharge as J7 provided for under S. 33 (b) of the Act, which would reflect the correct mode of how the deceased’s employment was actually terminated. Aggrieved by this new turn of events, the deceased on 20th April, 2004 commenced an action in the High Court against the appellant, seeking: an order for payment of KI49, 952.15 as terminal benefits due and payable to him under S.28 of the LASF Act; damages for being kept out of the money; devaluation of the same; and interest on amounts found due; and costs of the action. After hearing the matter, the learned trial judge in his judgment found, the appellant was not disputing having initially treated the deceased’ case as falling under S.28, but later changed to treat it as one falling under S. 33 (b). The judge observed that, in its defence to the action, the appellant had pleaded, its decision to substitute S. 28 with S. 33 (b) in dealing with the deceased’s case, was lawful and justified, in the circumstances. J8 The judge however noted, the appeals committee’s decision to reverse his dismissal after hearing the appeal, cleared the deceased of the allegations. Consequently, that after the dismissal was reversed, the appellant should have reinstated the deceased. That the appeals committee’s decision to remove the deceased from employment which followed, was in the circumstances wrong, for being inconsistent with its findings. The trial judge found that, as there was nothing on the evidence led to support a discharge, the deceased could not have been properly discharged under S. 33 (b) of the LASF Act. That evidence before him disclosed that the deceased was retired from employment and was thus, entitled to payment of his retirement benefits as provided under S. 28 of the LASF Act. The trial judge accordingly allowed the deceased’s claim for payment of KI49, 952.15 retirement benefits with interest at short term bank deposit rate from the date of writ to the date of judgment. Thereafter, interest was to accrue at the current Bank of Zambia lending rate up to the date of payment. The deceased was also awarded costs of the action. Claims for damages for alleged deprivation and devaluation of the amount due, were declined on J9 grounds that, the normal measure of damages in money related claims, is adequately covered in the award of interest, which the trial judge noted, he had already awarded to the deceased. Dissatisfied with the judgment, the appellant now appeals to this court on two grounds, which are couched in the following terms: 1. The learned trial Judge erred in law and in fact when he held that the Plaintiff was entitled to payment of full retirement benefits as provided for under section 28 of the Local Authorities Superannuation Fund Act Chapter 284 of the Laws of Zambia when there was no evidence on record to suggest that the termination of employment was as a result of reduction or reorganisation of staff, abolition of office or post or indeed retrenchment generally. 2. The learned trial Judge misdirected himself when he delved into the correctness or otherwise of the appeals committee’s decision to impose early retirement on the Plaintiff when the same was not in issue. In the alternative, if the learned trial Judge was correct in proceeding in the manner alluded to above, the learned trial Judge erred in law when he went on to award retirement benefits to the Plaintiff after holding that the decision of the appeals committee to remove the Plaintiff from employment was inconsistent with its own findings. When the appeal came up for hearing before us, learned counsel on both sides relied on written submissions filed on record which they augmented, orally. J10 On ground 1, which faults the finding of the learned trial judge that the deceased was entitled to payment of full retirement benefits as provided for under S. 28 of the LASF Act; learned counsel for the appellant indicated he fully agreed with the interpretation by the trial judge, of section 28 (1) of the Local Authorities Superannuation Fund Act, regarding the categories of employees to which it applied. That this was substantially, as outlined in the section itself. What counsel did not agree with, was the application of that section to the facts of this case, by the learned trial judge. Counsel argued that, in order to be entitled to payment of retirement benefits under S. 28 of the LASF Act, an employee’s termination ought to be by reason of retrenchment and/or redundancy. The record of appeal in this case however, shows there was no evidence before the learned trial judge to suggest the deceased was terminated by reason of retrenchment or redundancy. It was counsel’s further argument, that the deceased in this case was convicted after a criminal trial and approached the appellant for leniency. There was leniency granted to him and that is how he was discharged. Jll Counsel submitted, in the absence of evidence to show the deceased fell in any of the categories outlined in S.28 (1), the learned trial judge erred when he upheld the deceased’s claim for payment of K149, 952.15 as retirement benefits, under that section. Counsel went on to submit, that retirement is provided for under S.26 and the period of qualification on service, is 22 years. In the premises, that the deceased who had only served for 21 years and 10 months, still remained with two months to qualify for retirement based on period of service. Regarding ground 2 of the appeal, stating that the learned trial judge misdirected himself in law when he delved into the correctness or otherwise of the appeals committee’s decision to impose early retirement, when that was not the issue; counsel submitted, this court has in a number of cases held that the function of a court is not to interpose itself as an appellate tribunal to review what others have done, especially in domestic settings. As authority for the submission, he referred to our decision in the case of Zambia Electricity Supply Corporation Limited vs Lubasi Muyambango (1). J12 Counsel argued, the issue before the learned trial judge was whether the decision to substitute early retirement benefits under S.28 of the LASF Act with benefits under S.33 (b) of the same Act was illegal, unlawful and wrongful, as pleaded by the deceased. That according to his writ of summons, the deceased claimed he was entitled to payment of retirement benefits pursuant to S.28 of the Local Authorities Superannuation Fund Act, which section the appellant had allegedly, breached. As a result of this breach, the deceased had suffered damage. It was counsel’s submission, that there was no indication in these pleadings suggesting the deceased was challenging the termination of his employment. In the premises, that it was not open to the judge to make findings on the correctness or otherwise relating to the alleged termination of the deceased from his employment. Counsel relied for the submission, on the case of Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa, and Others (2) where this court held that: “The function of pleadings, is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. Once the pleadings have been closed, the parties are bound by their pleadings and the court has to take them as such.” (underlining for emphasis supplied) J13 Counsel’s argument in the alternative was that, even assuming the learned trial judge was on firm ground in proceeding on the basis that the termination was wrongful, which the appellant denied. The normal measure of damages for wrongful dismissal should have been awarded from the applicable contractual length of notice or notional reasonable notice, as opposed to retirement benefits under S.28 of the Local Authorities Superannuation Fund Act. The case of Swarp Spinning Mills Pic v Chileshe and Others (3) was called in aid of this submission. Counsel concluded his submissions by urging us to set aside the judgment of the court below. In his response to submissions on ground 1 of the appeal, counsel for the respondent argued that, interpretation of S.28 (1) taken by the appellant’s counsel which confines its application to redundancy and or retrenchment only, is narrow. It was his submission, the said section has a much wider application and the learned trial judge cannot be faulted for having looked at the section in its entirety. Counsel further argued, the requirement under the section to qualify for retirement benefits is for one to have at least ten (10) years of continuous service, which the J14 deceased had rendered to the appellant. The letter written to him clearly states he was put on early retirement and that he was eligible for long service gratuity. On ground 2 and the alternative argument, the submissions were that, when read in their full context, the comments made by the trial judge relating to inconsistency between the findings of the appeals committee reprieving the deceased; and the conclusion reached of not reinstating him, were obiter dicta which had no bearing on the judge’s final findings. According to counsel, there was no dispute on the deceased’s final mode of separation and the issue of awarding any damages did not arise. In concluding his submissions counsel noted, the only issue for adjudication that was before the trial judge was whether the deceased’s terminal benefits should have been computed and paid as provided under S.28 as claimed by the deceased or under S.33 (b) as contended by the appellant. We have carefully considered the arguments and submissions by counsel as well as the provisions of the law underlying the dispute. J15 The gist of the arguments from counsel for the appellant on ground 1 was that, the deceased could not be paid under S.28 of the Local Authorities Superannuation Fund Act, as his case is not one covered by that section. According to counsel, this section deals with cases originating from circumstances such as retrenchment or redundancy. The background of what led to the deceased’s termination of employment however, was that he was facing disciplinary action, at the end of which he was discharged and such circumstances, are covered by S.33 (b). We propose to consider these arguments by looking at each of these sections in turn. Section 28 (1) of Local Authorities Superannuation Fund Act provides that: 28. (1) If the employment of a member who has had at least ten years' continuous service is discontinued, through no fault of such member, owing to a reduction in, or reorganisation of, the staff of his employer, or to the abolition of his office or post, or in order to facilitate improvements in efficiency or organisation, or to retrenchment generally- (a) such member shall be granted a retirement benefit; and (b) if such member has had seven years' or more continuous service, a payment equal to twice the amount of the contributions paid by him together with interest thereon at the rate of four per centum per annum compounded annually. J16 The trial judge in considering S.28 (1) as quoted above, pursuant to which the deceased was retired, held: ‘the section applies to cases where an employee is retired from employment for reasons related to either a reduction or re­ organisation in the staff of his employer, or to the abolition of his office or post, or in order to facilitate improvements in efficiency or organisation, or to retrenchment in which case the affected employee is entitled to be paid a retirement benefit provided that he served his employer for at least ten years’ continuous service.’ We cannot fault the learned trial judge in his interpretation of the various situations covered by the section, which would entitle an employee to retirement benefits. We also accept the argument from learned counsel for the appellant, that the origin of the deceased’s situation emanated from disciplinary action and as such, it is not one that is contemplated by the section. Generally, the section envisages retirement due to no fault on the part of the employee. On the other hand, S. 33 (b) reads as follows: 33. (1) “Subject to the provisions of any rules made under paragraph (f) of subsection (1) of section forty-one, if a member, upon leaving the service of his employer, is not eligible to receive any benefit under the foregoing provisions of this Part, he shall, provided the provisions of section thirty-two do not apply to him, be granted a lump sum calculated as follows: J17 (b) if such member has had seven years’ or more continuous service, a payment equal to twice the amount of the contributions paid by him together with interest thereon at the rate of four per centum compounded annually. According to the trial judge below, S 33 (b) caters for terminal benefits relating to other situations not specifically provided for under the Act. Having perused the provisions relating to payment of benefits, we again agree with that interpretation of S.33 (b). However, in considering the present case, we are alive to the fact that, the background to the termination of the deceased employment was indeed disciplinary in nature. We also take cognisance of the further fact that, various employers whose employees are members of the Local Authorities Superannuation Fund do have their own independent employment contracts with their said employees. That such contracts have their own particular terms and conditions of service. We further acknowledge that, some if not all, those conditions of service for employees whose employment make them eligible to be members of LASF, have some form of disciplinary procedures for dealing with disciplinary offences committed by employees. J18 In the ordinary course of events, such procedures do provide avenues for an employee to appeal a disciplinary action taken by the employer, against him/her. Ultimately, the initial decision taken by the employer, may end up being either upheld or reversed. What is however certain is that, in either event, the employer’s final decision settles the issue, administratively. It then remains open for an aggrieved employee to pursue the matter further. What is worth noting is that, the whole administrative disciplinary process of the employer is exercised independently of the provisions of the LASF Act. Having so observed, we now turn to look at the common ground facts of this matter. The record shows that, after the hearing of his disciplinary case at the first instance, the deceased was dismissed. Upon appeal, the final decision of the appeals committee was that, the dismissal was substituted with early retirement in brackets indicated as a discharge. What was communicated to the deceased by the appellant however, was that, he was placed on early retirement, there was no reference, at all, to a discharge. When completing LASF FORM S/4, the appellant again indicated J19 the deceased had been retired and entitled to payment of his retirement benefits as provided under S.28 of the LASF Act. Under that section an employee who has served for a continuous minimum period of 10 years qualifies for payment of normal retirement benefits. It was not in dispute that at the material time, the deceased had served a total of 21 years and 10 months. As can be seen from the chronology of events, up to the stage of submitting LASF FORM S/4, the appellant’s final decision that the deceased was retired, albeit early, was not in issue. LASF however, reminded the appellant it had KI56,155.50 outstanding arrears in unremitted employers’ contributions. For the said reason, LASF requested the appellant to instead pay the sum of K149, 952.15, due to the deceased in retirement benefits directly to him. It is only then, that the appellant appears to have back-peddled and made the deceased’s mode of exit, an issue. The appellant reacted by withdrawing LASF FORM S/4 earlier submitted for payment of the deceased’s benefits under S.28 and claimed the deceased’s termination was infact a discharge which emanated from disciplinary action. In the event, J20 that the appropriate section which applied to the circumstances of his termination was S.33 (b). It was also not in dispute that LASF thereafter proceeded to pay terminal benefits to the deceased pursuant to S.33 (b). Whilst we accept that, the deceased’s employment was terminated following some disciplinary proceedings and as such was one that would ordinarily fall within the cases contemplated under S.33 (b) of the LASF Act. Evidence on record however reveals that, through the decision of the appeals committee, as earlier in the judgment highlighted, the appellant did not take this approach when it finally determined the deceased’s fate on appeal. This can be seen from the net result of its decision as communicated to him by letter dated 11th December, 2002 to the effect that, the deceased was cleared of the allegations. Consequently, that the dismissal was reversed and substituted with early retirement as the mode of termination of his employment. For purposes of payment of benefits, again the appellant treated the deceased s termination as a retirement as confirmed ! J21 by the NOTICE OF TERMINATION OF SERVICES - LASF FORM S/4 which was thereafter submitted to LASF for payment of the deceased’s benefits. Part II of this Form has listed all the options from which the employer could select the employee’s mode of exit, by way of ticking in the appropriate box. The list includes, amongst other options available to the employer, payment of benefits, both under S.28 (1) (a) and S. 33 (b). The issue raised in ground 1 of the appeal as we see it is really, whether a notice terminating employment once given by either party to a contract of employment, can subsequently be withdrawn by the party giving the notice, without the consent of the other party. This issue fell for consideration in the case of Riordan v The War Office (4). An employee of the War Office had a heated argument with his immediate superior following which the employee handed in a notice terminating his services. After cooling down, the employee attempted to withdraw this notice but was told it was too late, as it had already been handed over to the overall superior. The overall superior who only saw the notice three days later, accepted the resignation. The J22 employee sued for wrongful dismissal. In delivering the judgment of the court, Lord Diplock opined: “....... the giving of notice terminating the employment, whether by an employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent/’ (underlining for emphasis supplied) In another case, Harris & Russel Limited v Slingsby (5), the employee gave his employers notice to terminate the contract of employment. An attempt to withdraw it was refused by the employer whereupon the employee sued his said employers. The industrial tribunal that heard the matter at first instance, awarded the employee compensation. The award was based on the assumption that, the employee could have withdrawn his notice of termination of employment at any time and therefore, would have remained permanently in the service of his employers. The employers appealed and in his judgment, Sir Hugh Griffiths observed as follows: “Although it appears that there is no direct authority on the point in the case of a master and servant relationship, the court is satisfied that where one party to the contract gives a notice determining that contract he cannot thereafter unilaterally withdraw the notice.... in the absence of agreement the notice must stand.” (underlining for emphasis supplied) J23 This Court has in numerous cases re-iterated the same principle which is outlined in the above cases which is intended to safeguard entitlements of the parties based on existing terms and conditions of employment. In particular, this court has frowned upon unilateral variation of contracts of employment by an employer to the disadvantage of an employee, without his consent. In the case of Zambia Oxygen Limited and Zambia Privatisation Agency v Paul Chisakula & Others (6), we went further to confirm that the principle applies whether or not the employee is still in service when we said: “ We are aware, of course, of counsel’s spirited submissions in this appeal that the Ng’andwe case as well as the Kabwe case, covered different situations and were, therefore, distinguishable. It was submitted that in the Ng’andwe case, the employees were serving employees while in this case, the employees were retrenchees. With respect, the principle enunciated and supported in earlier cases cannot depend on whether the employees are continuing in employment or they have been separated. The principles for safeguarding of the terms of a contract already being enjoyed cannot vary in the manner proposed.....that being the case, the defendants cannot be heard to complain that the learned trial judge declined to enforce variations unilaterally introduced by them to the disadvantage of the employees. All the arguments and submissions to this effect are unsuccessful.” Coming back to the present case, evidence on record shows firstly, that the appellant’s letter dated 12th December, 2002 which followed the hearing of the disciplinary appeal was headed: J24 EARLY RETIREMENT and notified the deceased he had been placed on early retirement. The appellant then proceeded to submit LASF Form S/4, being the NOTICE OF TERMINATION OF SERVICES. In this Form, the appellant indicated the deceased was being retired under S.28. This was despite the array of choices of the mode of exit that were at its disposal which included termination under S.33 (b). There is no evidence on record showing the letter notifying the deceased that he had been placed on early retirement was ever formally withdrawn by the appellant. What was withdrawn was only the LASF FORM S/4. In the event, we find the overall picture created by this scenario and the evidence on record, is only consistent with retirement, being the outcome of the deceased’s appeal. It is also clear from the facts as supported by documents on record, this is how the appellant’s servants and or employees at the time, understood the effect of the final administrative decision on appeal, when they wrote to the deceased to inform him he had been placed on early retirement. They maintained this position J25 when they completed and submitted LASF FORM S/4, directing payment of the deceased retirement benefits under S.28. Further, the appellant in its defence filed in the Court below did not plead mistake, as the reason for having earlier directed payment of the deceased’s retirement benefits under S.28. Counsel unsuccessfully attempted to bring this issue which was never raised in the court below, for the very first time in his oral submissions at the hearing of the appeal. The position on whether such approach is tenable is of course, one that is well settled by this court, as re-iterated in the case of Barclays Bank Zambia Pic v Zambia Union of Financial Institutions and Allied Workers Union (7) We there said that, you cannot raise an issue for the very first time on appeal, which was not raised before the trial court. We observe in this regard that, even assuming the appellant’s request to LASF to withdraw payment under S.28 as earlier submitted and substitute it with a payment under S.33(b) was prompted by realisation that the request under S.28 was wrongfully made. If that was indeed so, it would have been J26 expected, that the appellant could have anchored its defence on mistake and pleaded the same in the defence filed, which was not the case here. The appellant instead pleaded its action was lawful and justified, considering the circumstances leading to the deceased termination were disciplinary in nature, thereby demonstrating a clear u-turn on its initial decision that the mode of exit was a retirement, as communicated to the deceased as well as LASF. As earlier seen in the cases referred to, once the appellant had given notice to the deceased that he had been terminated by way of early retirement, the deceased became entitled to payment of retirement benefits under S.28 as indicated to him. The appellant could not thereafter unilaterally withdraw that notice and substitute it with payment under S.33 (b) providing for discharge; to the disadvantage of the deceased, without his consent. For indeed, a notice terminating employment once given by either party to a contract of employment, cannot subsequently be withdrawn by the party giving the notice, without the consent of the other party. J27 It is for those reasons that we uphold the trial court when it held that, the evidence which is on record does not support a finding that the deceased was terminated by way of discharge; but rather supports the deceased’s claim, that he was retired; and thus, entitled to be paid retirement benefits pursuant to S.28 of the LASF Act. Ground 1 of the appeal accordingly fails. We now turn to consider ground 2, faulting the learned trial judge as having misdirected himself in law when he delved into the correctness or otherwise of the appeals committee’s decision to impose early retirement; when according to the pleadings, that was not the issue We have perused the record which shows, when considering the question on what was the outcome of the deceased’s appeal; the learned trial judge first looked at the decision of the appeals committee on which he observed, ‘it’s decision to reverse the deceased’s dismissal after hearing the appeal, cleared the deceased of the allegations’. He then further observed that, such a finding justified a reinstatement of the deceased, rather than removing him from employment, as the J28 appellant did. The record however shows, these observations were not the basis for the decision of the trial judge which followed. The trial court’s conclusion was based on the evidence led, which it found, was only consistent with retirement as the outcome of the deceased disciplinary case on appeal and not a discharge. We have considered the observations made by the trial judge and find the conclusion reached was not premised on those observations but rather, on the evidence led. It is for this reason that we agree with learned counsel for the respondent, that the observations were obiter dicta. In defining what constitutes obiter dicta Stroud’s Dictionary of Law states that: “ Obiter dicta are what the words literally signify, namely, statements by the way. If a judge thinks it is desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has no binding weight on the decision of the case, and reasons for the decision.” For the reasons outlined, we find ground 2 of the appeal including the alternative argument, equally unsustainable. J29 We accordingly uphold the decision of the trial judge ordering computation of the deceased terminal benefits pursuant to S.28 of the Local Authorities Superannuation Fund Act, Cap. 284 of the Laws of Zambia. We direct that monies found due and payable to his estate, be paid less any amounts that might have already been received from LASF, under S.33 (b). The whole appeal having been unsuccessful is hereby dismissed. Costs will follow the event and are to be taxed in default of agreement. G1STHIRI SUPREME COURT JUDGE EtN'TC. muyovwe SUPREME COURT JUDGE J. K. KABUKA SUPREME COURT JUDGE