Bernard Musa C Phiri & 176 Ors v Attorney General and Mulungushi University (Appeal No. 310 of 2023) [2024] ZMCA 219 (10 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) Appeal No. 3 IO of 2023 BETWEEN: BERNARD MJJSA C PHI Appellant AND ATTORNEY GENERA MULUNGUSHI UNIVE C\\/IL RE,GISTRY 2 -=---~~· 0 8())( 5006, . \.; I si Respondent 2nd Respondent CORAM: Chashi, Makungu and Sharpc-Phiri, JJA on 30 April 2024 and 10 May 2024 For the Appellant: For the 1st Respondent: Mr. N. Mwiya and Mrs. C. Nanyangwe Mr. M. Mutemwa ofMutemwa Chambers For the 2 nd Respondent: No appearance of Attorney General's Chambers JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court. Legislation referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England of 1965, (Whie Book) 1999 Edition Cases referred to: I. Trinity Engineering (Pvt) limited v Zambia National Commercial Bank Limited (1995- /997) ZR 189 2. Tucker v New Brunswick Trading Co. of London (1890) 44 Ch D 249 Other works referred to: 1. Halsbury's Laws of England, 4th Edition, Volume 26 2. Patrick Matibini, Zambia Civil Procedure: Commentary and Cases, Volume 2 l. O INTRODUCTION 1.0 This appeal relales to a Ruling issued by Limbani, J of the Kabwe High Court on 27 July 2023 in which he declined to grant Bernard Musa Phiri & 176 Others (Appellants herein) application fol' leave lo correcl the judgment of Justice Mwikisa of 11 May 2016. 1.2 In the lowel' Court, Bernard Musa Phiri and 176 others were the Plaintiffs (now the Appellants), while Mulungushi University was the pt Defendant (now the 2nd Respondent) and the Attorney General was the 2nd Defendant (now the l s1 Respondent). For clarity, in this judgment, we shall refel' to the parties as they are designated in this appeal. 2.0 BACKGROUND 2.1 A brief overview of lhe case reveals that the Appellants were employees of the National College for Management and Development Studies, (the college) which was dissolved and converted into a Public University known as Mulungushi University. 2.2 Following the dissolution, all the employees oflhe College were given 90 days' notice of their separation of employment with effect from 31 st December 2007. The employees were placed on stalulory relirement under the terms and conditions by which lhey served under the College, by virtue oflhe provisions of Section 8(2) and (3) of Act No. I 8 of2005 and paid their respective dues. J2 2.3 The Appellants contended that the payments they received were below their entitlements and did not comply with their conditions of service at the College. They argued that they were entitled to a six-month notice of separation and should have remai ncd on the payroll until all their retirement dues were paid in full. 2.4 Additionally, they claimed that the contributions to the National Pension Sche1ne Authority were not remitted. In December 2009, the Appellants initiated legal proceedings in the Kabwe High Court under cause nu1nber 2009/HB/91 against Mulungushi University and the Attorney General as I st and 2nd Defendants, respectively. 2.5 An amended wril of summons was subsequently filed on 20 October 2014. In the pleadings, the Appellants specifically claimed the following reliefs: i) Payment of the total sum of K49,150,076.730.52 representing under-payment on retirement benefits, pension contributions, and salary arrears up to 31" December 2014. ii) Payment of continuing salary arrears as from I st January 2015 to date of full and final settlement. iii) Interest at bank rate on claims (i) and (ii) above from the date of the writ to date of full settlement. iv) Costs of this action; and v) Further or other relief the court deems fit to order. ' , J3 2.6 The case was tried before Justice Mwikisa, who found that the 2nd Respondent had paid the Appellants severance pay, repatriation and leave pay but had omitted to pay the Appellants their salary arrears in accordance with clauses 30 and 20.1.4 of the terms and conditions for academic and unionized staff, which stipulated that an officer shall remain on the payroll and continue drawing his or her salary after retirement until all internal dues are paid in full. 2.7 With regard to the Appellants' claim for salary arrears to be paid until they reach the age of 55 years, the trial Judge held as follows: 'I find that the 2nd defendant paid the plaintiffs the required salaries in lieu of notice, repatriation allowances as shown in the plaintiff's supplementary bundle of documents. The factor of seven years used by the plaintiff in determining the salary arrears of the plaintiffs is. wrong. The plaintiffs cannot be paid for the years they did not work for, and this would amount to unjust enrichment. I am aware of the provisions of clause 11.2 of the conditions of service which states that under normal circumstances, the employees would be retired at 55 years old. I however wish to reiterate the fact that the plaintiffs were retired through mutual separation or by operation of law, namely Act No. I 8 of 2005, which transformed the college into a university, so quite clearly was not normal retirement as the plaintiffs had not attained the ages of 55 years. I concur with the Learned counsel for the 1st defendants, that it would be a fallacy to assert that the plaintiffs ought to have been retired as if they had reached the normal retirement age of 55 years. ' 2.8 The trial Judge ordered the 2nd Respondent to pay each of the Appellants salary an-ears in accordance with the number of months on which they remained unpaid long after they were retired.on 31 December 2007. The Judge referred to the benefits assessment fonns and payment vouchers contained in the Respondent's supplementary bundles of documents and proceeded to calculate the entitlements of each of the Appellants. This was undertaken by multiplying the number of months on which tht=y remained unpaid, by the basic salary of each Appellant. (Refer to pages 56-61 of the Record of Appeal). 2.9 Overall, the trial Judge ruled in favour of the Appellants regarding their claim for payment of salary arrears corresponding to the unpaid months after retirement, as well as interest and costs. However, the Appellants' other claims relating to benefits upon reaching retirement age and pension contributions were unsuccessful. 2.10 Being dissatisfied with the judgment of the k,wer Court, the Appellants appealed to the Supreme Court of Zambia under Appeal No. 133 of 2016, challenging the High Courl's decision of their claim for retirement benefits for the unexpired period of their employment with the National College for Management and Development Studies. The grounds of appeal were: (i) The Learned Judge in the Court below, having held that the Appellants were retired in line with Act No. 18 of 2005, misdirected herself in law and fact by not granting them retirement benefits, in line with their conditions of service. J5 (ii) The Learned Judge in the Court below misdirected herself in law and fact by holding that the underpayment of the Appellants relates only to the continued salaries, and not retirement benefits. (iii) The Learned Judge in the court below misdirected herself in law and fact by limiting the period of payment of continued salaries when the retirement benefits have to date not been paid in full. 2.11 In considering this appeal, the Supreme Court identified three issues for consideration namely: i) Whether under Section 8(2) and (3) of the Repealed Act, it was the intention of the legislature to deem the Appellants to have retired at the age of 55; ii) Whether by virtue of their conditions of service, the Appellants are still owed terminal benefits; and iii) If in the affirmative; whether the Appellants should continue to receive salaries until all their dues are settled. 2.12 With regard to the first issue, their Lordships held that 'no other meaning can be ascribed to Section 8 (2) and (3) of the Repealed Act, other than that the Appellants would be retired under the terms and conditions of service with the Council. One cannot, by any stretch of imagination construe Sections 8 (2) and (3) to provide that the Appellants should be deemed to have retired at the age of 55.' 2. l 3 On the second issue of whether the Appellants are still owed terminal benefits by virtue of their employment, their Lordships held as follows: 'There was no direction by the legislature that all former employees of the College should be deemed to have retired at 55 years of age when they had not attained their age. The Act simply provided that the officers should be 'deemed to have retired under Lhe terms and conditions of the Council. ' The question that remains to be resolved is whether there are, other terms and conditions of the Council under which, the Appellants could be deemed to have worked up to the age of 55, other than clauses 11.1 and 20. l. l on normal retirement. After perusing the relevant terms and conditions of service, we are satisfied that the appropriate provisions which should be considered, in this re.~pect are clauses J 1.6 in respect of non-unionized employees and 20. l.3 for unionized staff. We have reproduced these provisions in paragraph J 0. 4 above. The two provisions essentially provide for payment of benefit.~ calculated according to the years served. This i.~ in addilion Jo the entitlement under their respective pension schemes. The Appellants were paid according to these clauses. This, in our view, is in accordance with our earlier decisions in other cases including that of Kitwe City Council v William Nguni that salarie.~ and pen.~ion benefits sh.ould not be awarded for periods no/ worked for, as this may be termed to be unjust enrichment. J7 From the foregoing, we therefore find no basis to inte,fere with the learned trial Judge's findings of fact that the Appellants were correctly paid under clauses 11. 6 and 20 point 1.3 and.for holding that it would be a fallacy and unjust enrichment to treat the Appellants as having retired at 55.' 2. l 4 On the issue in the third ground of appeal the Supreme Coun, held as follows: 'The main contention in the third ground of appeal is that the Appellants should have continued to be paid their salaries until all the outstanding dues were paid The unchallenged evidence of DWI, was that all the employees of the college were paid according to the number of years served That the payments included leave pay, repatriation and severance package and all the discrepancies were corrected, and payments effected It follows therefore, that the Appellants cannot be paid beyond 2009 when their benefits were settled. The third ground of appeal also fails. ' 2.15 In concluding its judgment of9 Augusl 2019, the Supreme Court allowed the appeal to a narrow extent regarding the notice period and ordered the 1 sc Respondent to pay the Appellants three months' salaries in lieu of notice, in addition to the sum ofK3,497,664.59 salary arrears adjudged as owing by the High Court. The Supreme Court revised the order of interest and awarded interest on the judgment sum at short term deposit rate from the date of issue of the writ up to the date of judgment and thereafter, at six percent until the date of payment. The Supreme Court also ordered the costs to the Appellants for both Court actions. J8 3.0 APPLICATION TO CORRECT . JUDGMENT 3.1 On 13 June 2022, nearly three years after the delivery of the Supreme Court judgment and over six years after the High Court judgment was issued, the Appellants (as Plaintiffs in the lower Court) filed an application before Limbani, J in the Kabwe High Coutt seeking leave to correct the judgment of Judge M wikisa delivered on I I May 2016. 3.2 The application was made under Order 20, Rule II of lhc Rules of the Supreme Court of England, (White Book), 1999 Edition. The Appellants requested the Court to correct Judge Mwikisa's decision, specifically regarding the calculation of the salary arrears for all the Appellants for 24 months. 3.3 In support of the application, the Appellants submitted an affidavit sworn by Bernard Musa Phiri (located on page 35 of the Record of Appeal). In the affidavit, he stated that on ll May 20 I 6, judgment was entered in favour of the Appellants, entitling them to receive salary arrears for differing months as computed by the Cou1t. He further stated that the Court's computation of salary arrears for varying months was made by accidental slip or omission. He pointed out that the Court had held in the judgment that the Appellants were retired on 31 December 2007 and received payments by the end of 2009 or 2010, resulting in a period of 24 months, which should have been applied for all the Plaintiffs. Given these circumstances, they sought a correction of the judgment. J9 3.4 The Attorney General opposed the Appellants' application for leave to correct the judgment of the High Court, as detailed in an affidavit in opposition filed on 8 July 2022, sworn by Chomba Colleen Nanyangwe Bwalya, a State advocate in the Attorney General's Chambers. The deponent noted that the Appellants had initially brought an action in the High Court in 2009, which was later amended by writ of summons and statement of claim on 20 October 2014. That judgment was delivered on l l May 2016, by Judge Mwikisa in favour of the Appellants, awarding them salary arrears and costs to be assessed by the Deputy Registrar. 3.5 Further, that in May 2016, the Appellants appealed against the judgment, and on 9 August 2019, the Supreme Court of Zambia delivered judgment, ordering that the Appellants be paid 3 months'. salaries in lieu of notice in addition to K3,497,664.59 already awarded by the High Court. They noted that the l sr Respondent had paid the fufl amount, as evidenced by the account's payment records. 3.6 The Attorney General agued therefore, that granting the fresh application brought by the Appellants would constitute an abuse of the process, as the matter had already been conclusively detennined by both the High Court and the Supreme Court, Furthermore, that the Appellants had already benefited from the judgment of the Court. Thus, the deponent sought the dismissal of the application. JIO 4.0 DECISIOJ\ OF THE JUDGE 4. I After considering the application for leave to correct judgment, the lower Court, Limbani , J made the following detenninarion in his ruling of 27 July 2023: 'In relation to the application for the correction of the judgment, Order 20 Rule 11 RSC is very clear on the subject, that is, that if there are clerical mistakes in a judgment or orders or errors due to accidental slip or omis.~ions they are permitted to be corrected The court has power, by means of the slip rule, to correct the judgment and en.~ure that it conforms to the decision. It is important to note, as per the explanatory note in Order 2 0/ I 1 I 1, that the slip rule is only available for the correction of the error if nothing has intervened in the matter which would render it inexpedient or inequitable to make the correction. This is to ensure that the correction results in the record being in harmony with the order that the court pronounced The slip rule is therefore not an avenue for reviewing a decision. It is my considered view that the application in casu if granted will result in a fundamental variation of a radical nature which will lead to a different position to the passed judgments. That is, the application is but an attempt to alter or review the judgments in both matters which jurisdiction is beyond this Court and thu.~ not tenable. Ill The Supreme Cow-t guided on the purpose of the slip rule in the case of Trinity Engineering (Pvt) Limited v Zttmbiu National Commercittl Bank Limited1 that: 'The slip rule was meant for the court to correct clerical mistakes or errors in a judgment arising from accidental slips or omissions. In the present case, the applicant was effectively seeking the reviewing and setting aside of the previous judgment which was not possible. In relation to the issues of Res Judicata and Functus Officio, the position is not in issue as the decisions of the High Court and the Apex Court are indeed Res Judicata with the courts being jimctus officio. The decision of the High Court cannot be reviewed due to the appeal. Suffice to state that the fruits of both judgments have been enjoyed. For the avoidance of doubt, the application to correct the judgment of I 1 May 2016 is dismissed with costs. ' 5.0 THE APPEAL 5.1 Being dissatisfied with this Ruling of Limbani, J of 27 July 2023, the Appellants filed a notice of appeal and memorandum of appeal on 22 August 2023 with the following four grounds of appeal: i) By non-direction or otherwise, the Court misdirected itself in law and fact when it held that granting the Plaintiff's application will result in a fundamental variation of a radical nature which will lead to a different position to the passed judgments when in fact Jl2 both judgments confirmed that the Plaintiffs should have been on payroll for a minimum period of a least 24 months. ii) The Court below erred in law and fact when it held at page RI 4 of the Ruling that 'the application is but an a/tempi to alter or review Jhe judgments in both matters which jurisdiction is beyond this Court and thus not tenable' when the Plaintiff's application was one to correct judgment and not to alter or review. iii) The Learned Judge misdirecJed himself by holding that the decision of the High Court cannoJ be reviewed due to the appeal, when there was neither an application for review nor an appeal pending before any court. iv) The Court below erred in facJ and law and consequently fell into manifest error when it held that at page RI 5 the Ruling that fruits of both judgments have been enjoyed when there was no evidence to support such a.finding. 6.0 HEARING OF THE APPEAL 6.1 The appeal was heard before us on 30 April 2024. The Appellants and 1'1 Re_spondent were represented by their respective counsel, who relied on their heads of argument of 27 September 2023 and 19 December 2023 respectively. There was no attendance on behalf of the 2nd Respondent. The arguments of the parties will not be recast here but referenced in the subsequent analysis section below, where necessary. JD 7.0 OUR DECISIO:"i ON Tl IE APPEAL 7.1 We have conducted a thorough review of the evidence on record, the ruling under examination, the grounds of appeal, and the arguments put forth by the parties. In the four grounds of appeal, the Appellants contend that the lower Court erred by suggesting that granting the Appellants' application would significantly alter previous judgments, when both judgments had already established that the Appellants should have been on the payroll for at least 24 months. 7.2 They argue that the lower Court also erred by concluding that the application sought to alter or review the Judgments when the Appellants application was solely to correct the judgment and not to alter or review it. Furthennore, they argue that the lower Court erred by concluding that the decision of the High Court could not be reviewed due to an appeal, despite the absence of an application for review or an appeal pending before any court. Lastly, they argue that the lower Court erred by asserting that the benefits of both judgments had been enjoyed, without substantiating such a finding with evidence. 7.3 The Appellants are challenging Judge Limbani's decision to deny their request to correct a judgment delivered by Judge Mwikisa. The main contention in this appeal is that Judge Limbani should have granted leave to correct Judge Mwikisa's judgment delivered on l l May 2016 in the Kabwe High Court. Jl4 7.4 The law, as outlined in O,·der 20, Ruic 11 of the Rules of the Supreme Court, 1965 (White Book) 1999 Edition, permits the Court to correct clerical mistakes in judgments or orders, as well as errors arising from accidental slips or omissions, on motion or summons, at any time. 7.5 In the explanatory notes summarized under Order 20 Ruic 11 (1) of RSC on the effect of this rule the authors provide: 'This rule therefore upplies only in c"ses where there is " cleric"/ mistake in a ju,lgment or 11rder or an error arising from an accidental slip or a omission. Apart from the rule, the court hm; an inherent power to vary its ow11 ortle/'s so as to carry out its own n1eaning ,mil to make its meaning plai11. Where an error ~f tlutl ki11d has been committed it is always wit/tin the competency ,f the Court, if nothing h11s intervened which would render it inexpedient or inequitable t" do s", to correct the record in order to bring it into harmony with the order which the judge ob••iously • meant to pronounce. ' 7.6 The foregoing rule applies specifically to cases involving clerical mistakes in judgments or orders, or errors arising from accidental slips or omissions. However, beyond this rule, the Court has an inherent power to vary its own orders to ensure they reflect the intended meaning and are clear. If an error of this nature has occurred and no intervening circumstances make correction inappropriate, the court can correct the record to align it with the order the judge intended to make. Jl5 7. 7 Further, Matibini P, learned author of Zambian Civil Procedure: Commentary and cases, volume 2 elucidates at page 1147 on the issue of correction on judgments as follows: 'Thus, the Supreme Court was satisfied that a High Court Judge has power under Order 20, rule 11, and also inherent in tire judge, to correct clerical errors or accidental omissions in a judgment or order or to vary the judgment or order so as to give effect to his meaning and intention .... It needs fo be stressed however that the operation of tire slip rule is limited to accidental slips or omissions, such as clarification of an ambiguity in the text of tire judgment, a typographic error, an arithmetic error or generally to correct a patent error. ' 7.8 The learned authors of Halsbury's Laws of England, 4th Edition at volume 26 at paragraph 557 provide ~ list of circumstances under which clerical or accidental mistakes cari be correcled. They state that there is power, both under the Rules of Court and inherent in the Judge or master who gave or made the judgment or order, to correct any clerical mistake in it or some error arising from it from accidental slip or omission, or to vary the judgment or order to give effect to his meaning or intention. The power applies in cases of mistakes or accidental slips made by officers of the court, such as a miscalculation of interest, or a mistake in a date, or accidental omission from a bill of costs . • 1)6 7 .9 Before delving into considering the specific grounds of appeal mentioned earlier, we must determine whether Judge Limbani should have entertained the Appellants' application for leave to correct the judgment of Judge Mwikisa. 7.10 According to the learned authors of Halsbury's Laws of England, 4th Edition, in Volume 26, 1>an1gn11>h 7, citing the Court of Appeal case of Tucker v New Brunswick Trading Co. of London2 an application for correcting a judgment should be directed to the Judge or master who issued the decision. Interpreting this source indicates that it is generally considered more appropriate to submit an application for correcting a judgment to the presiding Judge who originally rendered the decision. 7.11 The reasoning for the above proposition is that the Judge who issued the original judgment or order is more familiar with the case and best positioned to understand the context of the application. The presiding Judge is also more accurately able to assess whether there was a clerical error or accidental omission in line with the Judge's original intentions. This practice also ensures consistency and integrity in the legal process. Directing an application for correction of a decision, back to the original Judge who rendered the decision ensures that any corrections accurately reflect the original intent of the judgment. 7 .12 In the present case, al though the judgment of 11 May 2016 was issued by Judge Mwikisa, an application for leave to correct the judgment was taken before Judge Limbani. J17 7.13 According to the learned authors of Halsbury's Laws of England, an application for correcting a judgment should be directed to the Judge or master who issued the decision. Given the above, the application to correct Judge Mwikisa's judgment should have been brought before Judge Mwikisa, who remains a High Court Judge, albeit now stationed at Lusaka High Court. Judge Limbani, should not have entertained the application to correct a judgment of a judge of equal authority. 7.11 Based on the preceding discussion, we are of the considered opinion that the application to correct Judge Mwikisa's judgment was improperly brought before Judge Limbani. Therefore, there is, in our view, no basis to consider the grounds of appeal against the decision of the lower Court. 7.12 Before concluding, we wish to highlight that the application brought by the Appellants to correct the High Court judgment regarding the assessment periods, appears to be an afterthought, as it is raised belatedly - six years after delivery of the High Court judgment and two years after the Supreme Court judgment. 7.13 Considering that the Appellants had the opportunity to challenge the lower Court's assessment in their appeal before the Supreme Court, but chose not to do so, the subsequent filing of an application in the High Court, to correct the judgment in the manner sought, in our view, constitutes an abuse of the Court process. J18 8.0 (~ONCLUSION 8.1 For the reasons we have given above, we set aside lhe ruling of Judge Limbani of 27 July 2023 and order the Appellants to bear the costs of lhcsc proceedings, to be laxed in default of gre ment. J. (:hashi COURT OF APPEAL ,JUDGE tt&u, Er- C. KMakungu COURT OF APPEAL JUDGE . ----------~--➔ -- 1~ c: ... •····· · NA. Sharpe-Ph ii COURT OF APPEAL JUDGE J19