Zambia Railways Ltd v Chipanama (SCZ 143 of 2002) [2003] ZMSC 103 (4 July 2003)

IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO, 143/2002 HOLDEN AT NDOLA & LUSAKA (CIVIL JURISDICTION) ZAMBIA RAILWAYS LIMITED APPELLANT AND RICHARD NDASHE CHIPANAMA RESPONDENT Coram Sakala, CJ., Chibesakunda and Silomba JJS 4th March, and 4th July, 2003 For the Appellant: For the Respondent: No appearance Mr. E. Chulu of Libertas Legal Practitioners ______________________ JUDGMENT______________________ Sakala, CJ., delivered the Judgment of the Court. This is an appeal against that part of the Judgment of the Industrial Relations Court ordering that the Respondent be paid the employer's contributions in accordance with the rules of the Pension Scheme with interest at 12% from the date of the commencement of the action to date of Judgment and thereafter 6%. There is also a cross-appeal by the Respondent against the award of interest at 12% and 6% respectively and against the dismissal of claims to purchase a stove, a house and for costs incurred on eviction. The advocate for the Appellant appeared on the date scheduled to hear the appeal but indicated that he was not ready to argue the appeal. He requested to file heads of argument with the court and leave the matter to the court to decide. Subsequently, although late, he filed written heads of argument which are part of the record. In the case of the advocates for the Respondent, they filed a notice of non appearance under Rule 69 of the Supreme Court Rules indicating that the Respondent did not desire to be present in person or by a practitioner at the hearing of the appeal but filed written heads of argument. The short facts of the case are that the Respondent, who was employed by the Appellant, went on voluntary retirement on 7th June, 1993. The Appellant refused to pay him the Employer's Pension Contribution. According to the evidence on record, the Appellant had paid the Employer's Pension Contributions to other two employees who retired in similar circumstances like the Respondent before reaching normal retirement age. The Respondent commenced proceedings against the Appellant in which he made claims for terminal benefits, failure to be given notice, wrongful eviction, missing and damaged property, rentals for re-location, purchase of the house , purchase of a Cooker and for the Employer's Pension Contributions. The lower court, after considering the evidence before it, dismissed all the claims except the claim for the Employer's Pension Contributions, hence this appeal by the Appellant and the cross - appeal by the Respondent. The appeal was based on one ground, namely that the court misdirected itself in awarding the Respondent the Employer's Pension Contributions in accordance with the Rules of the Pension Scheme with interest at 12% from date of commencement of the action to date of Judgment and thereafter at 6% plus costs of the action. The gist of the written submissions based on this ground was that the Rules of the Pension Scheme set out persons eligible to receive the Employer's Pension contributions upon leaving the company. These being persons who go on early retirement and not those who go on voluntary retirement as was the case with the Respondent. It was contended that in terms of the Rules, a member who leaves the company for any reason before the normal pension date other than Early Retirement, was only entitled to a refund of all his contributions with interest at 5% per annum. It was submitted that the Respondent did not reach the pensionable age and did not go on Early Retirement but opted to go on Voluntary Retirement. It was pointed out that in these circumstances he was not eligible to receive the Employer's contributions. It was also pointed out that in the case of the other employees, relied upon by the Respondent, the payment of the Employer's Pension Contribution was made in error and the error could not be extended to the Respondent. In response to the Appellant's submissions, the advocates, on behalf of the Respondent, pointed out the documentary evidence establishing the employees who were paid the Employer's Pension Contributions before reaching their retirement age. It was contended on behalf of the Respondent that the Court below was on firm ground when it ordered that the Appellant be paid the Employer's Pension Contribution as there was undisputed evidence that the two others who had not reached the pensionable age when they retired from the Appellant's service were paid the Employer's Pension Contributions. We have considered the Judgment of the court below, the evidence on record as well as the submissions in support of this ground of appeal. In dealing with the prayer relating to the payment of the Employer's Pension Contributions, the court had this to say.- "The next question we considered was the prayer by the Complainant to be paid the employer's pension contributions. From the evidence we are agreed that Mr Musyani and Mr. Sikazwe had not reached pensionable age when they retired from the Respondent's service Indeed these people were to our mind similarly placed like the Complainant. The Respondent having resolved that they be paid the employer's contributions, albeit reduced, they should have extended simitar treatment to the Complainant. Accordingly we rind that the Complainant must be paid the employer's contribution in accordance with the rules of the scheme." We have said before that the Industrial Relations Court is a court which has to do substantial justice, not bound by the rules of evidence. The court found as a fact on the evidence on record that two other employees in similar circumstances as the Respondent had been paid the Employer's Pension contributions. The court held that the same should be extended to the Respondent. We find no misdirection. The appeal based on this ground is therefore dismissed, The cross-appeal was on the award of interest at 12% from the date of action to date of judgment and thereafter 6%. The complaint was that those percentages are too little. The Respondent contended that according to Order XXXVI Rule 8 of the High Court Amendment Rules, Statutory Instrument No. 71 of 1997, interest is at short-term deposit rate from the date when the cause of action arose to the date of Judgment and thereafter at current lending rate from date of Judgment to until payment. We found no serious argument on the part of the Appellant in response to this contention apart from pointing out that a court has discretion on matters of interest. The cross-appeal on interest is allowed. We quash the Order made. In its place we order that interest on the payable Employer's Pension contributions will be the Bank of Zambia short term deposit rate from the date of the cause of action to date of judgment and thereafter at the current lending rate from date of Judgment until payment. We have considered the cross appeal on the purchase of the stove, the house and the eviction. We are satisfied that on the evidence on record, these claims were not proved. On these claims the cross-appeal is dismissed. The main appeal having been unsuccessful and the Respondent having succeeded on one ground relating to interest, the appeal is therefore dismissed with costs to be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE 6