National Pension Scheme Authority v Wood (Appeal 203 of 2015) [2018] ZMSC 384 (25 October 2018)

,. .... --- HOLDEN AT LUSAKA • (Civil Jurisdiction) SELECTED JUDGMENT N0.45/2018 P. 1576 APPEAL NO. 203/2015 IN THE MATTER OF: Sections 18 an d 21 of the National Pension Scheme Act No. 40 of 1996. AND IN THE MATTER OF: BETWEEN: Regulation 3 of the National Pension Scheme Eligibility) Regulations, 2000 (Statutory Instruments No. 71 of 2000). (Benefits and NATIONAL PENSION SCHEME AUTHORITY APPELLANT AND PHILLIP STUART WOOD RESPONDENT CORAM: Malila, Kajiman ga and Kabuka, JJS. On 10th July, 2018 and 25th October, 2018 . FOR THE APPELLANT: Mr. E. Mwa nsa, Messrs. Mwansa, Phiri & Partners. FOR THE RESPONDENT: , Mr. M. Z. Mwandenga, Messrs. Mwandenga & Co. JUDGMENT KABUKA, JS, delivered the Judgment of the Court. • ' ' ' J2 P. 1577 Cases referred to: 1. Gerteral Nursing Council of Zambia v Mbangweta (2008) ZR Vol.2 105 (SC). 2. Attorney General, Movement for Multiparty Democracy v Akashambatwa Mbikusita Lewanika and Others (1994) 164 (SC). 3. Stock v Frank Tomes (Tipton Limited) [1978] 1 W. L. R. 220 . 4. Jas~n Yumba and 22 Others v Luanshya Municipal Council, Appeal No. 5/2015 . 5. Inda- Zambia Bank v Mushaukwa Muhanga (2009) ZR 266. 6. Trevor Limpic v Mawere and Others, Appeal No. 121 of 2006. 7. Mid1ael Mabenga v Sikota Wina and Others SCZ Judgement No. 15/2003. 8. Edge and Others v Pensions Ombudsman & Another [1998] 2 All E. R. 547. 9. ~ususu Kalenga Building Limited and Another v Richman Money Lenders Enterprises (1999) ZR 27 (SC). Le gislation and Othe r Works referred to: 1. National Pensions Scheme Act No.40 of 1996, SS . 9, 18-21, 26, 33, 34, 36, 39, 44,45,53. 2. Statutory Instrument No. 71 of 2000, regulations 9, 21,40. 3. The Interpretation and General Provisions Act, Cap. 2, S. 20 (4). 4. The Supreme Court Practice (White Book) 1999, Ed., Order 20. 5. The Supreme Court Rules Cap. 28 rules 58 (3), 68 (1). 6. Halsbucy's Laws of England, Vol. SOA, 2016, parag. 1027; Vol.96, 2012 parag. 694. By a judgment delivered on 22nct May, 2015 the High Court found that payment of a lump sum pension benefit under section 21 i T J J3 P. 1578 of the National Pension Scheme Act No. 40 of 1996, Chapter 256 of the Laws of Zambia ("the Act"), is mandatory. On the facts of the case, th,e court further found, that the respondent is entitled to receive such a payment from the appellant. These are the findings against which the appellant has now appealed to this Court. According to the record of appeal, the history of the case is that the respondent had worked for various employers. By virtue of such employment, he was a member of the appellant's pension scheme known as the National Pension Scheme Authority (NAPSA) for 13 years, from 1st February, 2000 until 20th April, 2013 when he attained the then, statutory retirement age of 55 years. It was not in • dispute that over that period of time the respondent had made a total of 137 contributions to NAPSA. In terms of section 18 of the Act, • however, for a member to qualify for payment of normal pension benefits at 55 years, such member should have made a minimum of 180 conti"ibutions. For members who had attained pensionable age but made less than 180 contributions, section 21 provides for payment of a lump sum benefit, only. • • ' • l t J4 P.1579 Having only made 137 contributions, on 13th May, 2013 the respondent lodged a Benefits Claim Form with the appellant, claiming pension benefits for the period worked, and was issued with a Claim Submission Slip. A month later, on 18th June, 2013 the respondent wrote the appellant a letter requesting that he be paid his lump sum pension benefit. ' In his said letter, the respondent also intimated to the appellant, that he was aware of regulation 3 ( 1) of the National Pension Scheme (Benefits and Eligibility) Regulations 2000, Statutory Instrument No. 71 of 2000, ("the regulations") which appears to entitle a member to a pension, notwithstanding that he has not ~atisfied the requirements of section 18. In that regard, the respondent expressed the view that, the Act took precedence over mere regulations and he was entitled to a lump sum payment, as both sections' 18 and 21 of the Act use the mandatory word 'shall'. Thereafter, the respondent wrote some more letters to the appellant to which he did not receive any response. On 30th October, 2013 the respondent proceeded to seek redress from the High Court • l ' ' JS by issuing origin a ting summons, subs tantially askin g for : ' P.1580 (a) a declaration that regulation 3 of the National Pension Scheme (Benefits and Eligibility) Regulations 2000 (Statutory Instrument • No. 71 of 2000) is void to the extent that it is inconsistent with the provisions of section 18 of the National Pensions Scheme Act, No. 40 of 1996; (b) a declaration that regulation 3 of the National Pension Scheme (Benefits and Eligibility) Regulations 2000 (Statutory Instrument No. 71 of 2000), is void to the extent that it purports to amend section 18 of the National Pensions Scheme Act No. 40 of 1996; (c) a declaration and order that he is entitled to be paid a lump sum of his benefits und.er section 21 of the National Pensions Scheme Act, No. 40 of 1996; Th e judge considered affidavit evidence both in support and in opposition to the claims, wh ich were filed by the parties in the court below together with sub missions from th eir respective counsel. Her findings were th at, th e respondent was disqualified from payment of a retirement pension u nder section 18 of th e Act as he h ad not made the requisite num ber of 180 contributions required under sub- section (b). Th e ju dge also considered other sections which were in contention being sections 9, 18, 21, 39 and 40 of the Act in light of • \ I t J6 P.1581 regulation 3 . She further considered the cases of General Nursing Council ,v Ing.'untu ·Milambo Mbangweta1 ; Attorney General and Others v Akashambatwa Mbukusita Lewanika and Others2 ; and Stock Frank Tomes (Tipton Limited)3 and found that the words of section 21 are plain, unambiguous, and are a mandatory provision requiring that a lump sum must be paid to a member who 1s disqualified from payment of pension benefits under section 18. In the event, the judge came to the conclusion that, even with the consideration of sections 9 and 39 of the Act the appellant had no discretion in the matter. According to the trial judge, discretion ' in those sections only applies when prescribing the mode of payment. Her finding was that, to place the respondent on a pension rather , than a lump sum payment, was only in the best interest of social security and actuarial considerations and not of the respondent. ' The learned judge also made a general observation to the effect that, in such matters, the intention of Parliament was to first pay a pensioner a lump sum and thereafter monthly payments, so as to ' avoid pensioners being left destitute. She opined that a lump sum ' I f J7 P.1582 payment as contained in Article 124 of the Constitution before amendment , guaranteed protection of pensions for employees. It was her further considered view that regulation 3 is meant • to cater for those employees who go on early retirement and is not ultra vires the Act, nor does it amend section 18. The judge concluded by finding that, the respondent was entitled to a lump sum payment of his benefits under section 21 and that the appellant should pay him in accordance with the said section, with interest at the short-term bank deposit rate. Dissatisfied with the findings of the learned judge, the appellant filed an app eal on 19th June, 2015 advancing 9 grounds, supported by heads of argument which were filed on 16th December, 2015. The,gist of the arguments was that, contrary to the trial judge's findings, pension funds are ordinarily not intended to be sources of lump sum payments to members but rather, sources of regular income to them, up to their time of death. That lump sum payments • are generally, a stop gap measure, to pay those members who are unable to qualify to receive their monthly payments for reasons that • J8 P. 1583 are specifically stated or due to actuarial considerations, to avoid undermining the long-term viability of a pension scheme. , It was argued in this regard that, section 40 of the Act, specifically states that the Authority shall prudently manage the scheme so as to ensure that it is in a state of actuarial correctness, financially sustainable, fair in its benefit distribution and is affordable. In reaction to the appeal, counsel for the respondent filed a notice of intention to raise preliminary objection on the ground that, it was not proper or competent for the appellant to amend grounds 1, 6, 7 ahd 9 as they appear in the memorandum of appeal filed on 19th June , 2015 using the heads of argument filed on 16th December, 2015 without first obtaining leave of the court. It was his further argument that, grounds 4,5,6, 7 and 9 of the memorandum of appeal filed on 19th June, 2015 do not meet the requirements of rule 58 (2) of the Supreme Court Rules. When the matter came up for hearing of the appeal, we consider~d the arguments made in support and in opposition to the preliminary objection. In resolving the issue, we maintained the J9 P.1584 position. we took · in Jason Yumba and 22 Others v Luanshya Municipal Counci14. We there re-iterated that, rules of the court are in tended to assist in th e proper and orderly administr ation of ju s tice and as such, m u st be strictly • followed , failing wh ich the con sequen ces may be fatal to the a ppeal for being incompetently before th e Court. In our short ruling on th e preliminary objection s, we upheld th e submission by coun sel for the respondent th at allowing the purported amended grounds of appeal as contained in the appellant's heads of argument, would effectively be allowing the appellant to sneak in additional grounds of appeal through th e backdoor. We further ech oed the settled position tha t , regardless of whether the amendment to be made is a mere typographica l error, leave of this Cou r t m,ust first be sought as required by Rule 58 (3) of the Supreme Court Rules. We accordingly expunged grounds 1, 4, 5 , 6, and 7 from the record and the appellant was confined to arguing grounds '2, 3 and 8 of the appeal, which state as follows : 2. "the learned judge in the court below erred in law and fact when she s aid: 'I opine that the intention of Parliament was to pay the J lO P.1585 lump sum and later monthly payments to avoid pensioners being destitute;' 3 . tpe learned judge in the court below erred in law and fact when she held that section 39 of the subject Act is irrelevant to the facts of this case; 8. the learned trial judge erred in law and fact when she held that the respondent has no discretion to decide whether the lump sum be ' paid or not." Those a re the only grounds that remain to be determin ed on the appellant's appeal. The respondent also filed a cross-appeal raising one ground, the substance of which is that, to the extent that regulation 3 purports to amend th e provisions of section 18, it is ultra vires that section and void. We will for convenience start with t h e arguments relating to the ' appellant's appeal after which we will proceed to deal with those of the cross-appeal. , Gr ounds two and eight of the appeal raise the sam e issue and we will consider them together. The gist of the appellant's argument in these grounds is that the learned judge erred in finding that a , lump sum paymen t was meant to cushion a pensioner at the end of Jll P.1586 th eir working life. The appellant a lso argued that th e learned judge erred in finding that a member wh o h as attained pensionable age and has retired from employment but does not meet the qualifications for a pension under section 18 , is to be entitled to a lump sum benefit. It was argued that, the appellant infact h as the discretion whether to pay a lump su m or not and the formulae are already determined u nder the r egulation s. As such, actuarial considerations cannot be • taken in to account at that stage, as fou n d by the trial judge, but rather at the tim e when the appellant is determining whether or not • a member should be given a lump sum or paid a monthly pension. The case of Indo- Zambia Bank v Mushaukwa Muhanga5 was cited as authot"ity for the submission that in constrning statutes, it is only where there is ambiguity in the natural meaning of words that recourse can be had to the principles of interpretation. The appellant also argued that section 9 (3) clothes it with the power to decide whether or not a member should be eligible for pension. •That to deny the appellant such power, as suggested by th e finding of the trial judge, is to undermine th e very essence of a J12 P.1587 pension scheme, particularly in respect of members who may be entitled to pension due to changed circumstances in the scheme's financial'viability. The submission was that the Authority can decide whether a member should be awarded a pension notwithstanding that he has not paid the requisite number of contributions. • On ground three, the appellant argued that sect ion 39 of the Act empowers a Minister to prescribe the conditions for entitlement to a pension benefit for various categories of people who may not ordinarily qualify for such pension. It was further argued that, the same section also allows the Minister to convert the amount paid by a member of an existing fund who is above a prescribed age for purposes of entitlement to a retirement pension. The' submission on the point was that, the respondent who had reached retirement age but did not qualify for pension due to the insufficient number of contributions made, fell into the category of , pension scheme members to whom section 39 applies, and that the regulations, also applied to him. J13 P.1588 Th<; arguments on section 40 were that, the said provision is relevant as it allows th e appellant to ensure that the scheme is managed in accordance with prudential management principles, specified in the Pension s Sch eme Regulation Act. In answer to those su bmissions, to the extent that th ey were relevant.to the remaining grounds, the respondent in ground two, referred to the lower court's sentiments complained of, when the trial judge said, "I opine that the intention of Parliament is to pay the lump , sum and later monthly payment to avoid the pensioners being destitute." The submission was that, contrary to that statement, the trial judge did not make any order for monthly instalments as alleged , by the appellant. That th e only order she made was for a lump sum payment and the remarks referred to were simply obiter remarks which had no bearing on the decision reached. In the event, that they cannot be the basis for a competent ground of appeal as they do not go to the root of the judgment. Reliance for the submission was , placed on the cases of Trevor Lim pie v Rachel Ma were and Others6 Jl4 P.1589 and Michael Mabenga v Sikota Wina, Mafiyo Wallace and George Samulela7 • In ground three, the respondent's contention was that the lower court was on firm ground in holding that sections 39 and 40 of the Act were irrelevant to the facts at hand. The respondent argued that, section 39 is a transitional provision which confers power on the Minister to enact Statutory Instruments prescribing on matters specified in the section. That as his case was premised on regulation 3 being ultra vires section 18, the circumstances envisaged in section 39, do not concern the respondent as he was not above the prescribed age of 55 at the time the Act came into force in 1996. He was also not a member of an existing fund which converted his account to the appellant's fund or transferred his pensionable employment covered under another pension legislation. The respondent contended that, at the time the Act came into force he was aged 38 years, 9 months and section 39 capturing those members who were 39 and above clearly did not apply to him. Jl5 P.1590 On section 40, the ~espondemt argued that, the said p1iov1ston conce:rns how thee appellant is supposed to manage the National Pension Scheme gene:raJ11y, an issue which was not brought into question by the respondent am.cl thus" was irrelevant to the facts of tlhe case. Lastly, on ground :ei~ht, the respondent maintained that section 21 is crystal cleair ~atil(d unam'biguous as to its meaning, requiring that only the ltlterall interpretation be em ployed in discerning its said meaning. That the use of thee word <:shau~ in the section, calls fioir a mandatory co.mpHance in so far as the requiitiement for payment of a lump s'lllm is cooncerned,. This :means the appellant has no disc:retion in wlliletmrer O>Il" not to pay the respondent a lump- sum. The respondent further argued that,, section 18 of the Act provides for qualification 1to -rpayment oif a pension and rerrcers those m:embers who do not iS{)) qualify, to section 21, ifur a lump sum paymcent under that se:ctiiom. According to the respondent, the onfy question this Court shou1lcd ccomiceirn itself with in det ermining this JJ.6 P.1591 appeal., is whether the appellant has prescribed the manner for the payment of lump sums to its members. In response to his own question, the !iespondent contends that,, he is not aware of any Statutory Instrument that has 'ibeen issued pursuant to section 21, prescribing the manner of the payment of lump sums to members who are not eligible to receive a pension under section 18 of the Act. What the appellant claimed to be a,ware of, is that regulation 8 provides the formulae for calculation of the [ump sum benefits under the Act. Those were the arguments ,on the main appeal. In relation to the cross-appeal, counsel for the respondent argued that contrary to the finding made by the trial judge, that r,egulation 3 applies to members who go on early retirement., the said regulation is infact ultra vLres th1e Act. This is to the extent that it is meant to cater for members w ho a!ie not eligible to receive a pension under sect:ion 18, due to their failure to meet the threshold of 180 monthly contributions. Counsel submitted that, the judgment of the trial judge s houil:d to that extent., lbe varied accordingly. . • J17 P.1592 In his response to the cross-appeal, counsel for the appellant argued that Statutory Instruments are made to actualise or put to good use the provisions of the law and not to undermine them. His submission was that, the learned trial judge was correct when she held that there was no undermining of the provisions of the law, as the Statutory Instrument was merely there to ensure that the law provided, works well. Counsel proceeded to highlight that regulation 3 simply assists in actualising what section 18 provides by taking into account other provisions in the Act and thereby filling the lacuna that is in the Act. Counsel went on to argue that section 39 is intended to give the Minister authority to prescribe the conditions for entitlement to benefits under the Act, in respect of two categories of members: (i) those who do not make the required number of contributions; and (ii) those above the prescribed age. The submission was that, to remove the power from the Minister would mean undermining the authority that the scheme has, in ensuring its viability and providing equitable pension payments to its ageing members in line with section 9 of J18 P. 1593 the Ac t . We were implored to consider that, technical requirements of actuarial analysis always inform the man ner in which payments are made. That, section 39 is a bridging provision which allows the Minister to convert payments made under the old authority to the new one . On section 40, the contention was that, the said provision gives authority to the appellant to prudently manage the scheme and to ensure equitable distribution of pension. That the appellant has discretion, by virtue of section 9 (2) as to whether a lump sum should be paid or not, and that for the objectives of the Act to be met, requires a purposive approach and the taking into account of actuarial considerations to ensure that the pension scheme remains viable. In a brief reply, counsel for the respondent submitted that there was nothing on the record by way of evidence, which could be used to support the assertion that actuarial considerations were taken into account in denying the respondent a lump sum payment. On the argument that the appellant has discretion whether or not to pay a lump sum, the submission by counsel for the respondent was that, the argument was without merit, as the law provides the manner in J19 P.1594 which pensions must be paid out and it was not for the appellant to exercise any discretion. We were accordingly, urged to dismiss the appellant's appeal and uphold the respondent's cross-appeal. We have considered the evidence on record, the findings of the lower court, submissions, the law to which we were referred and the cases cited by counsel on both sides. Starting with grounds 2 and 8 of the main appeal, the gist of which is whether the appellant has discretion to pay a lump sum benefit or a monthly pension to a member who has attained retirement age. It was argued by counsel for the appellant that section 9 of the Act clearly identifies the categories of members the authority is obliged to pay pension benefits, upon reaching retirement age. That it also identifies the circumstances under which such payment is to be made. We have noted that in so arguing a lot of weight has been placed on the use of the word 'may' in section 9 (2) of the Act as provides that: "The Authority may pay lump sum benefits under such conditions as the Authority may prescribe." J20 P.1595 Counsel argues that, the use of the word 'may' as quoted above, means that the authority has discretion whether or not they ought to pay a lump sum benefit. In our view, the fact of the matter is that the discretion given to the appellant in the above section cannot ignore the mandatory tone of section 21 which requires that a lump sum payment 'shall' be paid to a member who has not met the requirement of 180 monthly contributions set out under section 18 of the Act. These sections fall under Part V of the Act which provides for 'Benefits'. Section 18 in particular deals with conditions for the award of retirement pension and reads as follows: "18. Subject to the other provisions of this Act, a retirement pension shall be paid to a retired membe r who has- (a) attained pensionable age; and (b) made not less than one hundred and eigh ty monthly contributions." Section 21 on the other hand, addresses the situation of members who fail to satisfy the conditions laid out in the above I • J21 provision as being entitled to lump sum payment, in the following P.1596 words: "21. A member who has attained pensionable age and has retired from employment but does not meet the qualifications for a pension under section eighteen, shall be entitled to the payment of a lump sum as may be prescribed by the Authority." Evidence on record 1n this appeal shows that the respondent only made 137 contributions and for that reason, did not qualify for payment of pension benefits under section 18. There was no dispute by the parties regarding this fact, both in the court below and at the hearing of the appeal. While section 18 is clearly made subject to section 21, the same cannot be said of section 9 of the Act, on which the appellant seeks to anchor its argument in this regard , which speaks in general terms . Sections 18 and 21 are more specific in providing for the category of persons who qualify for payment of monthly pension or are to receive a lump sum benefit, and why. It was spiritedly canvased by counsel for the appellant, that the learned judge did not take into account actuarial considerations in J22 P. 1597 reaching her findings that the appellant had no discretion in deciding whether or not to pay a lump sum, with the result that, such finding undermined and posed a danger to the viability of the scheme. We have considered the provision of section 9 (3) which requires that, 'in such circumstances as may be described, the authority shall exchange lump sum benefits referred to under sub section 9 (1) for a pension, in accordan ce with actuarial advice'. In answer to a question from the Court at th e hearing of the appeal, learned counsel for the appellant magnanimously conceded that, there was no evidence placed before the trial court, of any actuarial advice relating to th e respondent. In the absence of such evidence, it is clear to us that there is no basis for applying regulation 3 which seemingly, prescribes payment of a pension benefit to persons not entitled to such p ayment under section 18. This brings us to the real issue to be determined in this appeal namely, which provision takes precedence over the other, regulation 3 or section 21 of the principal Act? '. • ~ J23 P.1598 The Act of course grants the Minister power to make regulations pursuant to sections 19, 26, 33, 34, 36 and 39 while section 53 provides for the Minister to make regulations by statutory instrument, for the better carrying out of the provisions of the Act. A reading of those provisions shows that, the intended regulations ought to allow for the better carrying out of provisions of the Act which is the general objective of regulations, and not to undermine or conflict with them. We say so, as regulations are made to support provisions of the Act and not the other way around. We are fortified in this regard by section 20 (4) of the Interpretation and General Provisions Act, Cap. 2 of the Laws of Zambia, which provides that a statutory instrument which is inconsistent with any provision of an Act, is void to the extent of the inconsistency. Sections 44 and 45 of the Act provide for an appointed actuary to evaluate the scheme and submit a report, following which the appellant, can implement the recommendations made therein. ~ . JJ24 P.1599 Granted the foregoing, we iffinol it inconceivabl,e,, that it can be seriously canvassed by counsel for tme appellant, that Ministerial discretion granted in regulation 3 which is a subsidiary legislation, can override c[ear statutory provision in S'.ection 21 directing in mandatory terms, payment of a lumpsum itlo a ·member who has made less than 180 contributions.. Si'milarly, in our view, considerations suggesting imprudent management of the p.ension funds should not be allowed to be used as an excuse to adversely affect a pensioner who frills in the category of meimbers, captured under section 2L, with the result of depriving such member from entitlement to payment of a lump sum benefit. The learned authors of Halsb1ury':s lua1ws of England, 'Volume SOA (2016) in paragrap!h 1027 write that, an actuary is under obHgation to communicate to a Regulator or Authority, any matter as prescribed by the regulations. Although such an a rrangement is one that is pu!Iiely interna[, proceeding that ·way cou[d have enabled the appellant to gather the requisite information and prove its asserUons at triat, if necessary, in "camera," that iits decision 'Was weU informed, . ' J25 P.1600 as it was based on the pnor benefit of actuarial advice. This observation is made in consideration of the appellant's main argument, that actuarial considerations were taken into account in not paying a lump sum benefit to the respondent. Evidence on record however, shows nothing was placed before the trial court to prove that assertion. The actuary can make detailed recommendations and also give a picture of whether the pension fund is in surplus or deficit. The English case of Edge and Others v Pensions Ombudsman and an,othe:r8 is an illustration of the great assistance a detailed actuarial report can be to the relevant Authority and indeed a court of law, in coming to its findings. ff the appellant had :started encountering difficulties in effecting sectio:n 21, the solution lay in revisiting this section, to take into account such difficulties. In its current form, the section is clear and unambiguous in its meaning and in the absence of relevant evidence, there was absolutely no basis for the trial court to have entertained .. ' J26 ,P,.1601 any fea[", that upholding section 21,, ·may unde["mine the very existence and financial viability .of the !Pension Sciheme, as intimated by counsel in ihis submissions foG>m trre hair. In our view, tlhere cannot be any se1ni.ous debate as to whether or not the autihority ihas discretion 1to pay a lump sum benefit when the mandatory use of the word "shaU' mas been employed in the relevant provision. We do sympathise witih the appellant's position that if 'actuarial considerations' lhaid fbeen t~en into account, the trial court would, probably, have been better placed to consider such evidence in reaching its decision. Im the absence of such re1evan t evidence, the cm .. fffs hands were tied to the evidence actuaUy before 'it. According!ly" we have no difficulty in finding tlhat the apipellant cannot rely o.n subsidiairy law in regulation 3 of SI No .. 7 1 of 2000 in an attempt to escape tlhe unambiguous and mandatory provision ofa parliamentary enactment as 1contamed in s ·e,ction 21 of Chapter 256 of the Laws of Zambia, requfring that a !lump sum payment be J27 P.1602 made to a member who does not qualify for a pension benefit under section 18. In the premises, we accept the submissions by learned counsel for the respondent that the views of the trial judge complained of in ground two of the appeal, were indeed mere obiter dictum with no bearing whatsoever on the final decision made, which was for payment of a lump sum, only. Grounds two and eight of the appeal fail for those reasons . Coming to ground 3, which challenges the findings of the trial court that sections 39 and 40 are irrelevant to the facts of the case. We have noted that s e c tion 39 falls under what are known as transitional provisions. It relates to various categories of p eople who may not ordinarily qualify for pension for reasons which include early retirement or discharge on medical grounds, whilst sect ion 40 relates to prudent management of the scheme. The appellant argues that section 39 empowers the Minister to prescribe conditions for entitlement to payment of benefits as well as to convert the amount that a member of a prescribed age has in an existing fund in their account, with the result that, such member then, becomes entitled • . , ,J28 P.1603 to a retirement pension. The appeHant argued that, it was wrong for the trial court to disregard section 39 without first establishing if the respondent faHs under the targeted category of persons. Counsel for the appellant contended that, the respondent did fall into the category of persons envisaged in section 39 on the ground that he • did not manage to make the requisite number of contributions to the scheme to qualify him for pension benefits because he was above the prescribed age on the date the Act came into force. In addressing those arguments, ·we do so noting that evidence on record shows the respondent was only 38 years and 9 months, at the time the Act came into .force in 1996 and thus under the 39 years targeted by section .39. There was no evidence led suggesting he was • in the category of members of an existing fund whose contributions were transferred to the appellant :for s ecti,on 39 to apply to his situation. Even assuming it did apply, the issue was not raised in the court below. As we have variously maintained previously, the appellant is precluded from raising an issue on appeal, for the very • ) J29 P. 1604 first time: Mususu Kalenga Building Limited. and Another v Richman Money Le nders Enterprise s 9 refers. In our view and as was correctly found by the learned judge, as a transitional provision, section 39 is irrelevant to determining the real issue in this appeal. We are fortified in holding that view by the learned authors of Halsbury's Laws of England, Volume 96, (2012) paragraph 694 on transitional provisions where they state that, 'transitional provisions' regulate the coming into operation of an enactment and where necessary, modify its effect 'during' the period of transition. A prominent feature of such provision is that 'it is expected to be a t emporary arrangement' which becomes spent once all the past circumstances with which it is designed to deal with h ave come to pass. The issues we are dealing with here go back to 1996 which is a period of over two decades ago. Further, evidence on record confined the respondent's claim to the period between the date the respondent joined NAPSA on 1st February, 2000 to 30th April, 2013 when he reached his retirement age. ' . .. J30 P.1605 On argumen ts relating to section 40 which deals with the manner in which the appellant ought to manage the scheme, prudentially and ensuring that it is at all times in a state of actuarial correctness and financially sustainable. We have a lready dealt with this issue in our findings, that the appellant d id not lead any evidence in the court below pointing to an actuarial report or assessment which had influenced the decision not to pay the respondent a lump sum benefit as prescribed in mandatory terms by section 21 of the Act. We accordingly find ground three of the appeal equally unsustainable. It is for the reasons given that we find that the appeal has no merit and we dismiss it. Coming to the cross-appeal, the respondent contends that the real issue here is, whether regulation 3 is ultra vires the Act or amends section 18 of the Act. The respondent's simple argument is that regulation 3 as it stands, is ultra vires the Act, as it is inconsistent with the provisions of section 18 or in so far as it purports to amend the said section. ~ I I " · . J3l For convenience we witll again, reproduce sectio)n. Jl.8 in issue, which provides a.s follows: :Subjee'.t to t'h.e o'tlher pr,ovi'siion_s (Of this Act,, a ll1etiriememt ,i>e:nsioiJil. skalll '.be )Paid to a r.etisred membcer 'Wlho nas- attaiin.ced pensi11nabr.te <B'ge; :and fa1) fibO ma.dee mot :les:s t'h.:am one llu:ndl'ce:d ia,ru! e•ghty mo:nfnly co111.~dln1tio•s. (underlining ·suppl1iedi) And, th e r1elevant p ortion of regulatiollil 3 fJl) states that: JJl~ A membei- ,\\(hiD is mot elLi.§ib1te [ol' a :l',eti Teme,nt p ,e;lilsiDm Uinder .se.ctiro;lil eiiglrteen ;m;ay be en'tid1:ecd ·tro that J>elllfsion ruf;: fa1 ) the :mremihe. T has a~bdne'd {the ~gee coftharty-DliDe ihy l;st Febrmary,, 200'0 and 'has m'l!)nths rof p~insi'o:nable employment e 'quru. (to not le:ss th.am the numbe;I' di mDmth,s ellap:smg betw,een the 1st Fe.bruazy,, '2til00 amd 41:lhe rj;ay ((!)JJl whlch tlhe aee:m\bel' att>:amlfs <the age :0'.f ififty~\thT,ee, s1U~je.ct to a mirrmuum of sixty comple1x.ed monit1hs oif jpen<sic@nabJ:-e empi10yment; CGr ~b) t~e mem1ber is bellow (the ~e (l'l)f Uilirty-mn<e aDd llas maooie on:e ll:l"l!llmCdre.d and ceighty :monthly e:orrbrlbutirm:ncs m tier.m-s (l)f cs,u"b re_gnlati o:ns (3)) anid l4i). Section 18 a.rs reproduoed a b0ve is clearly limriting in that ithef e ris only 'C)llte category of members that qualify to be paid cetirement pension, on two conditions; ti~ that they h a\Jie attained the pensionable age of 55 years and ,(ii~ managed to make a 1hunolned and eighty ,con tnibu trions. (Ii. • • - • ,J:32 Regollatio)R 3 cCDn the other hand w'idlens the scope by reducing fhe ipensionabJe cage from 55, at the materia[ time, thereby creating two JID(Q[Te categories of qualifying members. [n terms of regu.l:aticon 3 a ·member wlho was ithirty-nine y;ea11;s old by 1st !February, 2000 and at the cage of fifty-three ha:di contributed a minimum of 60 .months' pen:sionable employment, qualifies. Alternatively, where the member ~vas below tlhle age of thirty-nine, but has made 180 contributions, that memlbeir too, woillld qualify forr- pension. :From this analysis, ir,egulalioJrJ. 3 widens the ,scope of persons who qualify beyond what is provided to!f in section 18. 1t is to the extent of tlliiat inconsistency that the said !iegu[ation is ultra vires and v:c:>id. Further, in so providing, regulati:on 3 takes a:way the mandatory qualification in rs::eetion 21,, which directs a lump su.m paym.ent to a person wlwo does nrot qualify tior pension under section 18. TlTuose a1Pe t1re reasoillls thait we fi.nd .merit in the cross-appeal and we allow it. J33 P.1608 We uphold the trial court below, to the extent that she found the respondent is entitled to a lump sum payment pursuant to section 21 of the Act. The amount due as judgment sum is to be computed from the respondent's date of retirement on 30th April, 2013 and will attract interest at the average short-term deposit rate, from the date of commencement of the matter, to the date of judgment in the court below. Thereafter interest will accrue at bank lending rate, as determined by the Bank of Zambia, to the date of full payment. As the respondent has succeeded both on the appeal and cross- appeal, he will have his costs in this court, to be taxed in default of agreement. ~~ ..................... ~ .......... . ----- ~· '}- . _..._...--M. MALILA SUPREME COURT JUDGE ·· ·· ····~ · ···· ·· ····· ·· ~~·ANGA SUPREME COURT JUDGE J . K. KABUKA SUPREME COURT JUD GE