Kitwe City Council v Ng'uni (S.C.Z. Judgment 12 of 2005) [2003] ZMSC 130 (6 September 2003)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA SCZ JUDGMENT NO. 12 OF 2005 APPEAL NO. 57 OF 2003 (145) (Civil Jurisdiction) BETWEEN: KITWE CITY COUNCIL APPELLANT AND WILLIAM NG’UNI RESPONDENT CORAM: LEWANIKA, DCJ, MAMBILIMA AND SILOMBA, JJS On 4th June, 2003 and 6th September, 2005 For the Appellant: Mr. Victor Micheelo, In-house-counsel For the Respondent: Mrs. Ireen Kunda, George Kunda and Company JUDGMENT Silomba, JS, delivered the judgment of the court. Case referred to:- 1. Western Excavating Limited -Vs- Sharp (1978) QB, 761. Legislation referred to:- Local Authorities Superannuation Fund Act, Chapter 284. This appeal is against the judgment of the High Court delivered at Ndola on the 24th of January, 2003. In this judgment, we shall refer to the appellant as the defendant and the respondent as the plaintiff, which is what they were in the court below. By an amended writ of summons and statement of claim, the plaintiff claimed terminal benefits amounting to K77,534,824-36 for loss of employment with the defendant and damages J2 (146) for breach of contract/or conditions of service, inconvenience and for loss of earnings arising from the defendant’s delay in processing the plaintiffs resignation. The evidence of the plaintiff, in support of the various claims, was that as an assistant mechanical engineer in the employment of the defendant he was being sent on illegal hunting by the defendant’s Town Clerk, Mr. Ali Simwinga. The plaintiffs evidence was that he was usually sent to hunt in the company of the Town Clerk’s young brother, Mr. Geoffrey Simwinga and Mr. John Kaliminwa, the Deputy Director of Engineering Services. During these trips, they used the personal vehicle of the Town Clerk. The plaintiff testified before the lower court that they were either sent to hunt illegally or to buy cattle for the Town Clerk. When the trend did not stop, the plaintiff started to refuse to go out to hunt and according to him the Town Clerk started harassing him. In November, 1995 the plaintiff and Mr. Barry Waluzimba, the Director of Engineering Services, were called by the Town Clerk and while in his office the plaintiff was told to resign from the defendant’s employment because he (the Town Clerk) thought that he was too rich to work for the defendant council. The Town Clerk told the plaintiff that apart from owning a fleet of buses and trucks in Luanshya, he was running around with someone’s wife, a Mrs. Chambeshi, but he did not answer back. The plaintiff refused to resign and consequently he was written a letter by the Director of Engineering Services accusing him of persistent dishonest and unethical conduct for having bought a rotten engine for the Council grader to which he responded. This accusation was later repeated by the Town Clerk himself in a letter to the plaintiff to which he replied by way of exculpation, stating that the order for the engine was never signed by him but by the Director of Engineering Services, Director of Finance, the auditor and the accountant. There were other allegations made against the plaintiff regarding the GM Crankshaft for the same Council grader, which was dismantled and sent to Engine Reconditioners of Zambia (ERZ) for examination. After examination, ERZ wrote a report to the defendant stating that the engine was operated without oil. After the plaintiff had written letters of exculpation, he decided to resign in May, 1998. The resignation was tendered to the defendant Council by his legal counsel on his J3 (147) behalf. The reason for resigning was harassment and victimization by the Town Clerk himself. However, the resignation was not accepted by the Town Clerk who wanted the plaintiff to appear before the full council meeting to explain issues, which issues the plaintiff was not aware of. During the period the plaintiff resigned, he was on half salary; he was not able to leave Kitwe as he was still waiting for an answer from the council. Besides, he could not practice his profession to raise money for the upkeep of his family. The evidence of the plaintiff was that he was not aware of any disciplinary action against him apart from the letters he exchanged with the defendant. He denied that he entered into any arrangement with Vinmas Company, except for a trip he made to their premises to inspect a tractor. He admitted before the lower court that there was a contract between Vinmas Company and the defendant for the hire of a gang mower for K2,3 88,000-00, which the Director of Engineering Services signed on behalf of the defendant. The plaintiff was not present when the contract was being entered into. According to the plaintiff, the only role he played was to raise an order, which was signed by the Director of Engineering Services and counter-signed by him. After the gang mower was secured it was handed to the Works-Superintendent for the annual grass cutting in the city. As per his amended writ of summons and statement of claim, the plaintiff testified that he was claiming terminal benefits under the Local Authorities Superannuation Fund Act, risk allowance and repatriation allowance after having worked for the defendant Council for twenty-three years. In cross examination, he told the lower court that he was entitled to retirement benefits irrespective of the mode of exit from employment. The plaintiff testified that he was not aware that the Local Authorities Superannuation Fund Act had been amended to exclude retirement after 22 years of service. He admitted, under cross examination, that he did not give three months notice before he resigned as per his conditions of service but he did not think that his act was a breach of contract. The evidence in rebuttal was adduced by two witnesses. DW1, Alex Mwewa Mwansa, the defendant’s Acting Director of Administration, testified that the plaintiff was entitled to the long service bonus under his conditions of service. DW1 confirmed that the plaintiff had been paid part of his long service bonus for the first ten years by J4 (148) way of a book transfer when he applied for a bridging loan to pay for the house which had been offered to him by the defendant. According to DW1, the bridging loan consisted of long service bonus and commutation of leave. He conceded that the plaintiff was nonetheless entitled to the balance sum; that there was an overpayment of K680,000- 00 for the house, which was to be reimbursed. DW1 testified that the plaintiff was, however, not entitled to the payment of the retirement benefits because he did not qualify for them. According to DW1, the retirement age was 55 years but the plaintiff resigned when he was 45 years of age. As far as he was concerned, a person who resigned was not entitled to retirement benefits. He recalled that prior to 1996 an employee was entitled to a retirement package if he completed 22 years of service and since the plaintiff’s resignation was with effect from the SO01 of May, 1998 he was not covered by the previous Local Authorities Superannuation Fund Act, which had been amended by the time the plaintiff resigned. DW1, however, conceded that the plaintiff was entitled to unclaimed half salary and arrears on salary. He testified further that the plaintiff was entitled to a refund of the contributions he made to the Superannuation Fund but that he would not receive the employer’s contribution. He stated that his own contributions would be multiplied by two since the plaintiff served the defendant for more than seven years. DW1 also testified that the plaintiff was not entitled to risk allowance as claimed because he was not categorized under Clause 11 of the Collective Agreement as one of the employees who would come into contact with chemicals or offensive or poisonous substances; that he was not also entitled to repatriation allowance as he was neither retired nor retrenched. Mr. Ali Derrick Simwinga, Town Clerk, was the last witness. He described the accusation that he victimized the plaintiff as unfortunate, disrespectful, an after-thought and childish. DW2 testified that the plaintiff’s letter of resignation, written through his counsel, Messrs George Kunda and Company, did not contain any allegations of victimization and neither did it specify any other reasons for resigning. According to DW2, he had a good working relationship with the plaintiff who was a good friend of his young brother. J5 (149) DW2 did not officially deal with the plaintiff directly but through his supervisor, the Director of Engineering Services. He testified that he received adverse reports about the plaintiff who was disciplined by his supervisor on several occasions; that on one or two occasions he disciplined the plaintiff personally. He testified further that when the defendant council received the letter of resignation on the 30th of May, 1998, written by the plaintiffs advocate, it could not accept the resignation immediately because the plaintiff was facing disciplinary charges and in any event he was wanted to come and hand over the office and council property still in his possession. Consequently, DW2 wrote the plaintiffs advocates to prevail over their client but he still never came. DW2 testified that the plaintiff hired a tractor and gang mower for grass cutting from a company called Vinmas without the knowledge of the defendant council for which the sum of KI 6,000,000 was demanded in the form of hiring fees. As a result, the defendant council wanted the plaintiff to help in defending the action, especially that Vinmas was holding on to the defendant’s vehicle as security for the payment of the hiring fee. He denied that he was responsible for the delay in processing the letter of resignation, insisting that the plaintiff was not co-operative. He testified that as a public officer the plaintiff was and still is under an obligation to account for any property that was in his possession. Under cross-examination DW2 testified that the plaintiff went to hunt with his young brother not on his instructions but on their own will. He testified that when the defendant eventually accepted the resignation, it had to do away with the charge against the plaintiff but decided to exercise a lien on his terminal benefits unless he accounted for the property of the council. This was the nature of the evidence that was presented to the trial court by both sides to the dispute. On the evidence, the learned trial Judge found as a fact that the plaintiff was employed by the defendant from the 7th of September, 1977 to the 22nd of September, 2000, when the plaintiff’s resignation was accepted by the defendant council. On the withholding of the benefits, the learned Judge did not think that the defendant exercised the “so called lien” on terminal benefits in good faith. The view taken by the learned trial Judge was that the defendant should not have withheld the whole amount of J6 (150) the benefits due to the plaintiff but should have assessed what was due and payable to the plaintiff less what it was counter-claiming. By withholding the whole amount, the defendant council was being unfair and punitive toward the plaintiff, the learned trial Judge opined. On the plaintiff s resignation from the defendant, the learned trial Judge found, on the basis of the surrounding circumstances of the case, that the plaintiff was hounded out of his employment by the defendant; that he was, therefore, constructively dismissed in breach of the conditions of service through the defendant’s misconduct of harassment and victimization. On the basis of his finding, he ruled that the respondent was entitled to damages for breach of contract, inconvenience, loss of earnings arising from the appellant’s delay in processing the respondent’s resignation and consequential loss. On the question of the claim for K77,534,824-36, being terminal benefits, the learned trial Judge thought that the claim was admitted by the defendant and what was in dispute was the quantum of such benefits. He also dealt with the issue of retirement benefits, as a separate item. Owing to the breach of contract of employment, whereby the respondent could not retire at the appropriate retirement age to be entitled to retirement benefits, the learned trial Judge ordered the appellant to pay terminal benefits equivalent to retirement benefits, as well as, long service bonus, unclaimed half salary, superannuation benefits and repatriation benefits. There are six grounds of appeal that have been advanced for our consideration. These are:- 1. 2. The learned Honourable Judge erred in holding that the appellant did not file or deliver any written submissions. The appellant did deliver their written submissions on 8th of August, 2002. The Honourable Judge misdirected himself in holding that the Respondent’s resignation was as a result of victimization, harassment and frustration when the evidence as given by the plaintiff did not constitute victimization and defence witness, DW2, had countered the respondent’s claim of victimization. 3. The learned Honourable Judge erred in holding that the respondent was entitled to retirement benefits due to the breach on the part of appellant. J7 (151) 4. 5. 6. The Honourable learned Judge erred in holding that the damages due to the respondent on constructive dismissal were equal to the retirement benefits the respondent would have received if he had worked up to the retirement age. The learned Judge misdirected himself in awarding the respondent full payments in a claim that had already been paid and in claims that were legally not due to the respondent. The learned Judge erred in holding that the counter-claim could not succeed as Vinmas Limited were not made a party to the proceedings. In his oral submission, counsel for the defendant did not begin with ground one but ground two. In fact ground one was covered towards the end of his submission. In this judgment we shall begin with ground one for there is no good reason for dealing with it in any other manner. Counsel has submitted that contrary to the learned trial Judge’s assertion that the defendant did not file or deliver written submissions these were actually filed on 8th of August, 2002 and were found lying on the court’s file. Counsel thought that because the learned Judge did not look at the defendant’s submissions he was swayed to rule in favour of the plaintiff. In response, counsel for the appellant thought that ground one was not meritorious because the defendant put in its written submissions outside the twenty-one days as ordered by the learned trial Judge. We have considered the submissions on ground one and we note that at page 219 of the record of appeal the learned trial Judge ordered the parties’ advocates to file their written submissions within twenty one days from the 28th of June, 2002. By simple computation, the 21 days were to end on the 19th of July, 2002, by which date the submissions from both sides were supposed to be with the court. By filing the written submissions by the 8th of August, 2002, the defendant was completely in breach of the court’s order. We have gone so far, so as to show that the court’s order was not obeyed but what is important is for the parties to note that the learned trial Judge was not bound to consider counsel’s submissions as these were meant only to assist the trial court in J8 (152) shaping up its judgment. To that extent, we do not find any merit in ground one and is accordingly dismissed. On ground two, counsel for the defendant submitted that at the time the plaintiff tendered his resignation he was facing disciplinary charges. He stated that in his resignation, through his lawyers, the plaintiff did not say that he was resigning because of harassment, frustration and victimization. Counsel submitted that in his own words, found in the letter of resignation at page 63 of the record of appeal, the plaintiff resigned on his own accord and not that he was harassed, victimized and frustrated by the defendant; that he had to resign because he wanted to end his career in the Local Government in an amicable and congenial atmosphere. Counsel further submitted that the claim of victimization, harassment and frustration as pleaded by the plaintiff and as attested to during trial came as a shock to the defendant. He referred us to the evidence of DW2 (Town Clerk) who testified that the claim that the plaintiff s resignation was as a result of victimization and harassment was unfortunate, disrespectful and an afterthought. Counsel thought that it was wrong for the plaintiff to have resigned while facing charges of dishonest and unethical conduct, which could have resulted in his dismissal. In his view, the plaintiff resigned using the back door method in order to get benefits. He also submitted that the defendant had the evidence to prove the charges against the plaintiff and that was why there was protracted debate whether to accept his resignation or not; that the defendant wanted to pursue the charges, hence the reluctance to accept the plaintiffs resignation. He urged the court to set aside the lower court’s finding that the plaintiff resigned due to harassment, victimization and frustration because the plaintiff knew that the charges he was facing were likely to result in his dismissal. In response, counsel for the plaintiff submitted that the learned trial Judge did not misdirect himself when he found that the plaintiff’s resignation was due to victimization, harassment and frustration. On this ground, counsel further relied on the submissions that she made before the learned trial Judge. We have looked at the written submissions that were filed before the lower court and particularly those at pages 184 to 185 of the J9 (153) record of appeal. In the main, the submissions give instances when, according to counsel, her client was harassed and victimized. We have carefully considered the evidence and the submissions relating to ground two. The contention of the defendant is that there was no harassment, victimization and frustration suffered by the plaintiff prior to his resignation. It is contended that the evidence alluding to harassment, victimization and frustration was an afterthought because the plaintiffs letter of resignation makes no mention of any of these allegations. On the other hand, counsel for the plaintiff has shown that the repeated disciplinary charges and a suspension meted out by the defendant showed that his client was harassed, victimized and frustrated. We have looked at the letter of resignation written by counsel on behalf of the plaintiff. This letter is at pages 63 to 64 of the record of appeal and is reproduced in full as follows:- GK/0665 30th May, 1998 The Town Clerk Kitwe City Council Civic Centre Nsansa Lane P. O. Box 20070 Kitwe FOR ATTENTION MR. SIMWINGA by FAX AND POST Dear Sir Re: WILLIAM NG’UNI-RESIGNATION FROM EMPLOYMENT We act for Mr. William Ng’uni of your Engineering Department and refer to your letter dated 27th April, 1998 addressed to our client, in which you interdicted and suspended him from performing his duties. We also refer to our client’s letter to you dated 4h May, 1998, in which he exculpated himself of the allegations of persistent dishonest and unethical conduct. J10 (154) Please note that our client continues to plead his innocence of the allegations and considers the allegations, with due respect, to be baseless, as he has explained in his letter of exculpation aforesaid. As such, our client is prepared to establish his innocence, before any forum of justice. Be that as it may, Mr. Ng’uni does not desire to go into the unpleasant exercise of exchanging aspersions or obloquy, with people he has worked with for a long time, if that can be avoided. Accordingly he would like to end his career in Local Government, in an amicable and congenial manner. In the premises our client has decided to resign from the service of your council with immediate effect. In this regard this letter should be treated as a letter of such resignation. We contend that our client is entitled to bring the contract of employment to an end by resigning at any time, in terms of the Conditions of Service for Local Government Officers of 1996, as well as Regulation 20 of the Local Government Service Regulations, Statutory Instrument No. 115 of 1996. Since the contract has come to an end we now demand the payment of all the terminal benefits due to our client, for the period starting from the time he joined the Local Government Service on 7th of September, 1977, to date. Our client wishes to convey his gratitude to all those he worked with in the Council over the 21 years or so and hopes that it will not be necessary to antagonize each other over this matter with accusations and counter accusations. We look forward to your further communication. Yours faithfully, GEORGE KUNDA & CO If it is true that he resigned because of harassment, victimization and frustration then the above quoted letter (and the letter of exculpation at pages 55 to 59 of the record of appeal) does not give that impression. We find paragraphs 3 and 6 of the quoted letter to be at variance with what the plaintiff testified at trial. The letter of resignation that was supposed to set the tone by outlining, in detail, the kind of harassment, victimization and frustration the plaintiff went through during his employment with the defendant is reconciliatory and portrays the plaintiff as the person on the retreat. JI 1 (155) With these comments, we agree with the argument of the defendant that the evidence of harassment, victimization and frustration was an afterthought. We also agree that he decided to resign in the face of dismissable disciplinary charges against him in order to get some terminal benefits, which he would not have been entitled to had he been dismissed. We uphold ground two and accordingly reverse the learned trial Judge on his finding that the plaintiff resigned due to harassment, victimization and frustration. We now move to deal with grounds three and four together because the result in one affects the other. Counsel for the defendant submitted, in respect of ground three, that the payment of retirement benefits was governed by conditions of service and the Local Authorities Superannuation Fund Act No. 30 of 1996. He submitted that apart from the two, there was no any other law that regulated the payments for a retiring employee in the Local Government Service. It was submitted that Act No. 30 of 1996 repealed Section 26 of the Local Authorities Superannuation Fund Act, Chapter 284 of the Laws (hereinafter called the LASF Act) to provide that retirement shall be at the pensionable age of 55 years. The court was told that the amendment came into effect on the 27lh of November, 1996 while the plaintiff resigned on the 30th of May, 1998 at the age of 43 years, thereby making him ineligible for retirement benefits under the amendment. Counsel submitted that in 1992 the LASF Act was amended to allow employees in Local Government Service to retire after working for 22 years and that if the law had not been amended by Act No. 30 of 1996 the plaintiff would have been entitled to a pension because he had worked for 23 years. Counsel urged the court to reverse the learned trial Judge’s order awarding the plaintiff retirement benefits when they were not due to him as he had not attained the age of 55 years. Besides, counsel argued that it was wrong, in terms of Section 32 of the LASF Act, for the learned trial Judge to award retirement benefits to the plaintiff who was facing disciplinary charges. Further, it was argued that it was wrong to award the plaintiff repatriation benefits against the stipulation in the conditions of service, which allows the payment of repatriation benefits to employees who have been retired or retrenched. J12 (156) On ground four, counsel submitted that it was wrong for the learned trial Judge to award the plaintiff damages that were equal to what he would have earned had he worked up to the retirement age but for the constructive dismissal. Counsel thought that the award of retirement benefits, as a measure of damages for wrongful dismissal, was too excessive. In response, counsel for the plaintiff agreed with the Court that ground three was related to ground 4. She was of the view that if the plaintiff was not constructively dismissed or forced out of employment he would have reached the retirement age of 55 years and that he would have been entitled to his retirement and other benefits. On ground four, counsel submitted that the trial court awarded damages for breach of contract and/or conditions of service; that in awarding retirement benefits the trial court stated that the plaintiff was entitled to payment of terminal benefits equivalent to retirement benefits but not actual retirement benefits. We have carefully considered grounds three and four together in relation to the submissions from both sides. At page 12, lines 26 to 30, of the record of appeal, the learned trial Judge sets out what is due to the plaintiff in terms of retirement benefits as a result of the breach of contract by the defendant. We reproduce the relevant passage, which we think covers both grounds three and four, as follows:- “As to retirement benefits, I have just determined that the defendant council was in breach of the plaintiffs contract of employment. Had the plaintiff been allowed to retire at an appropriate retirement age he would have been entitled to retirement benefits. In the circumstances, I find that due to the breach on the part of the defendant, the plaintiff is entitled to payment of terminal benefits equivalent to retirement benefits. He is also entitled to payment of long-service bonus, leave pay, unclaimed arrears of half salary, superannuation benefits and repatriation benefits but not risk allowance.” The evidence we have is that the plaintiff tendered his resignation, through his lawyers, on the 30th of May, 1998 while disciplinary charges were pending against him. This fact was not rebutted. According to the evidence and submissions of the defendant, JI 3 (157) the resignation was acceded to after along time and with pressure from the advocates. In fact, the defendant would have wanted the due process of the law to take its full course. We have said in this judgment that the reasons for resigning from the defendant could not have been frustration, victimization and harassment. We wish to go further, under the two grounds of appeal for purposes of putting the law in proper context, that the plaintiff could not have been constructively dismissed from employment as a result of frustration, victimization and harassment because these are not the essentials in law that might render a dismissal to be constructive. In the case of Western Excavating Limited -Vs- Sharp (1) the employee (respondent) was dismissed for taking unauthorized time off work. In reversing the decision of the EAT the Court of Appeal stated that the test for constructive dismissal was to be determined by the contract test, that is, did the employer’s conduct amount to a breach of contract which entitled the employee to resign? The Court of Appeal dismissed the ‘unreasonable conduct’ theory as leading to a finding of constructive dismissal on the most whimseal grounds. Since there had been no breach of contract in Sharp’s case there was no dismissal, constructive or otherwise. In the present case, the facts show that the plaintiff resigned to avoid a dismissal because the charges he was facing were serious and were likely to lead to his dismissal. By laying charges against the plaintiff, the defendant’s conduct cannot be said to amount to a breach of contract, which entitled the plaintiff to resign. In fact it was conduct in furtherance of the performance of a contract of employment because the employer was entitled to discipline any erring officer under its conditions of service. What would be the entitlement of an officer in a local authority, who resigns or leaves employment while answering charges of misconduct? In our view, this is the question the learned trial Judge should have posed and answered. We have visited Section 32 of the LASF Act, which appropriately deals with the kind of benefits available to an employee who is allowed to resign while disciplinary charges are pending. The section reads:- J14 (158) “32. If a member is dismissed from the service of his employer as a result of his grave misconduct, dishonesty or fraud, or if he is allowed to resign or retire in order to avoid such dismissal, he shall receive a lump sum equal to the amount of the contributions paid by him, and, for the purposes of this section, any resignation tendered by a member during an inquiry into his conduct and before the result of such inquiry is announced shall be deemed to be a resignation in order to avoid dismissal. ” The law, as outlined in the above quotation, is unambiguous and requires no further elaboration from us. We reiterate that the plaintiff resigned to avoid a dismissal in view of the serious charges that were pending against him. It follows, therefore, that where a member or employee of a local authority is allowed to resign as was the case here, he can only claim a refund of the amount of contributions paid by him and no more. Under this section, the refund of the amount the plaintiff is entitled to, is in respect of the contributions he made towards the superannuation benefits. As we shall soon show, the plaintiff was not entitled to what was coined as “terminal benefits equivalent to retirement benefits” under the LASF Act, the regulatory Act, because at the time he resigned the law had been changed to allow local authorities employees to earn their pensions on reaching the retirement age of 55 years. The plaintiff resigned on the 30th of May, 1998. The law that regulated his superannuation benefits at the time was the Local Authorities Superannuation Fund (Amendment) Act No. 30 of 1996, which amended the Principal Act, deleted Section 26 of the LASF Act and put in place the following provisions under the new Section 26(1):- 26(1): Subject to the other provisions of this section or any other written law, a member shall retire on attaining pension age: Provided that the Minister may in consultation with the Board prescribe earlier or later dates for the retirement of all or any of its officers. JI 5 (159) “Pension Age” is interpreted under Section 2 of the LASF Act to mean the age of 55 years. In relation to the plaintiff, the proviso to sub-section (1) of Section 26 could not apply to him because he had resigned. Clearly, there was no basis for awarding a retirement package to the plaintiff under Sections 26(1) and 32 of the LASF Act. We are, therefore, dismayed by the order to award “terminal benefits equivalent to retirement benefits” the plaintiff would have earned if he had reached retirement age had he not been constructively dismissed. Apart from the issue of constructive dismissal, which we have already dealt with, we have said in several of our decisions that you cannot award a salary or pension benefits, for that matter, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment. The order of the learned Judge is accordingly reversed and in its place the defendant is ordered to refund the contributions the plaintiff made to the Superannuation Fund under the LASF Act, minus the defendant’s contributions. We, however, note that in relation to other claims, there is no dispute that the plaintiff is entitled to leave pay, unclaimed half salary and arrears on half salary. The interest on the amounts due to the plaintiff shall be the average short-term deposit rate from the date of the writ to the date of judgment and thereafter at a rate fixed by Bank of Zambia. If parties cannot agree on the quantum, then they must submit to assessment as ordered by the learned trial Judge. On the payment of repatriation benefits, as a condition of service, we have sought guidance from the conditions of service under which the plaintiff worked as a unionized employee. The conditions of service can be found at pages 155 to 162 of the record of appeal and clause 22 thereof, which deals with repatriation, states and we quote “Council shall provide transport to a retiring or retrenched officer or in the event of such transport not being available payment of a repatriation benefit to be based on the actual quotation provided by the UTTA or railway transporter. ” J16 (160) From the evidence on record the plaintiff was neither retired nor retrenched and so he could not be paid repatriation benefits. The order of the learned trial Judge is accordingly set aside. On the whole, we find grounds three and four meritorious and we uphold them. On ground five, the defendant’s counsel submitted that the learned trial Judge misdirected himself in awarding full payment of long service bonus when the claim had already been paid and, therefore, not legally due. He stated that the long service bonus was paid to the plaintiff towards the purchase of the house that had been offered to him by the defendant council. He further stated that the evidence of DW1 was supportive of the defendant’s assertions. In response, counsel for the plaintiff submitted that the learned trial Judge awarded the amount of long service bonus that was not disputed. According to counsel, what the appellant was entitled to was the long service balance, after having worked for 22 years or more less the part payment for the first 10 years. We have considered ground five and the evidence on record. The undisputed evidence of DW1 was that the defendant had partly paid the long service bonus for the first ten years by way of a book transfer to meet the cost of the house that had been sold to the plaintiff by the defendant; that there was an over-payment for the house in the sum of K680,000, which was due to the plaintiff. Notwithstanding the foregoing, it cannot be argued that the plaintiff was paid the full amount of long service bonus for the 22 years or more he had worked for the local government service. Counsel for the defendant wants the court to believe that the plaintiff was paid bonus for 17 years but the evidence at page 131 of the record of appeal does not render support to his contention. Since the facts establish that there was part payment in relation to the first ten years, the plaintiff is entitled to the balance long service bonus as contended by counsel for the plaintiff. To that extent, we shall vary the order of the learned trial Judge by ordering the payment of the balance on the long service bonus instead of the order for the payment of long service bonus because of the confusion it is likely to cause. Ground five fails. On the last ground, the defendant’s contention is that even though Vinmas Limited was not a party, the counter-claim ought to succeed. It is further contended that because the plaintiff did not cooperate with the defendant in ensuring a proper handover, J17 (161) the defendant had failed to offer a satisfactory explanation to Vinmas Limited leading the latter to confiscate two motor vehicles of the former. In response, counsel for the plaintiff contended that the learned trial Judge properly dismissed the counter-claim on the basis that Vinmas Limited was not a party to the proceedings; that it was improper for the defendant to counter-claim on behalf of someone who was not a party to the proceedings. As far as counsel is concerned, there was ample evidence on record to show that the contract between Vinmas Limited and the defendant was concluded with the Director of Engineering Services as the signatory and not the plaintiff. We have considered the submissions and the evidence on record. In a proper case, a counter-claim can be maintained against the plaintiff for causing financial loss to the defendant during his tenure of office as its employee. On the facts of this case, our view is that the defendant, through DW2, did not adduce sufficient evidence in support of the counter-claim. If, however, Vinmas Limited has sued the defendant (per evidence of DW2) for the recovery of KI 6,000,000, which the defendant strongly feels was incurred by the plaintiff without the concurrence of the Council, then the solution is not in a counter-claim under these proceedings. The defendant must defend that suit and the plaintiff should be a party by way of third party proceedings. Before we conclude our judgment, we would like to comment on the judgment under this ground in which the learned trial Judge made a finding that the counter-claim could not succeed partly because the defendant was counter-claiming on behalf of Vinmas Limited who was not a party to the proceedings and who did not authorize the defendant to counter-claim on its behalf. We find the finding to be at variance with the amended defence and counter-claim at pages 36-38 of the record of appeal. From our perusal of the amended defence and counter-claim, we note that the defendant counter- claimed on its own behalf. Nowhere does the counter-claim suggest that the defendant was counter-claiming on behalf of Vinmas Limited. For the earlier reasons we have stated under this ground, we decline to entertain ground six as the remedy lies elsewhere. !*’i' t ,<f fffllrhu-, fit? Out of the six grounds the defendant advanced before us only three have succeeded. This being the case, there will be no order for costs as each party will be : (162) expected to meet his or its own costs. D M. Lewanika, DEPUTY CHIEF JUSTICE. I. M. C. Mambilima, SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.