Zulu and Ors v Zambia State Insurance Corporation Ltd (Appeal 203 of 2008) [2016] ZMSC 278 (4 February 2016)

I IN THE SUPREME COURT OF ZAMBIA Appeal No.203/2008 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SCZ/8/255/2008 DICKSON ZULU AND 3 OTHERS APPELLANTS AND ZAMBIA STATE INSURANCE CORPORATION LIMITED RESPONDENT Coram: Chibomba, Hamaundu, JJS and Lisimba, Ag JS. On 8th May, 2014 and on 4th February, 2016. For the Appellant: Mr. H. Chinene of Lumangwe Chambers. For the Respondent: Mr. J. C. Kalokoni of Kalokoni and Company. JUDGMENT Chibomba, JS, delivered the Judgment of the Court. Cases referred to: 1. Attorney General vs Marcus Kampumba Achiume (1983) ZR 1 2. Birch and Humber vs University of Liverpool (1985) IRC 479 3. Cosmas Phiri and 85 Others vs Lusaka Engineering Company Limited (2007) ZR 1 4. Kabwe vs BP(Z) Limited (1995-1997) ZR 218 5. National Milling Company Limited vs Grace Simataa and Others (2000) ZR 91 6. Rodgers Chama Ponde and Others vs Zambia State Insurance Corporation Limited (2004) ZR 151 7. Bank of Australasia vs Palmer (1897) AC 540 8. Jacob Nyoni vs Attorney General (2001) ZR 65 9. Association of Copper Mining Employees vs Mine Workers Union of Zambia, SCZ Appeal No. 129 of 1998. 10. John Paul Mwila Kasengete and 40 Others vs ZANACO Bank Limited (2000) ZR 72 11. Van Boxtel vs Kearney (1987) ZR 63 \ 12. Pan Electronic (1988-89) ZR 19 ,) >1 < I . * J 2 13. ZIMC0 Limited (In liquidation) vs Michael Malisawa and 17 Others, SCZ Appeal No. 139/2002. 14. Augustine Kapembwa vs Danny Maimbolwa and Attorney General (1981) ZR 128. 15. Jones Atkins Nyirenda vs Pre-Secure Limited, SCZ Appeal No. 118/2005. 16. Austine Mubanga vs Grinaker LTS, SCZ Appeal No. 63/2010. 17. Richard Kalyangu and 26 Others vs Maamba Collieries Limited, SCZ Appeal No. 152/2011. 18. Colgate Palm Olive Zambia Limited vs Able Shemu Chuka and 110 Others, SCZ Appeal No. 181/2005. 19. Chilanga Cement PLC vs Edson Mwiinga and 10 Others, SCZ Appeal No. 17/2008. 20. Maamba Collieries Limited vs Douglas Siakalonga and Others, SCZ Appeal Appeal No. 51/2004. Legislation referred to: 1. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. The delay in delivering this Judgment is deeply regretted. A number of factors contributed to this delay. Among them are that the initial panels that heard this Appeal retired before Judgment could be delivered. The panels had to be reconstituted four times. Subsequently, the Appellants also substituted their Heads of Argument and consequently, the Respondent had to re-file its own revised Heads of Argument and the Judgment had to be re-aligned with the new Heads of Argument. We must also indicate that when we heard this Appeal, Mr. Justice Lisimba, Acting Supreme Court Judge, sat with us. He has since retired. This is therefore, a Judgment by the majority. This is an appeal against the Judgment of the Industrial Relations Court (IRC) at Ndola in which the Court below ruled that the Appellants were not entitled to be paid terminal benefits on the ZIMCO Conditions of Service as they had agreed to early retirement under the Respondent’s Conditions * J3 of Service which did not provide for the merger of basic salary and allowances when computing the benefits. The history of this matter is that the Appellants were employees (Managers) of the Respondent in salary scale MS4. The Respondent put a scheme for its senior employees in scales MS1 to MS3 to take early retirement and then get fixed term Contracts. The Appellants, together with their fellow Managers who were in the MS4 salary scale, requested Management to consider them in this scheme as well. Management agreed on condition that the Appellants would not be automatically re­ engaged but were to compete for the same jobs with others in the labour market as their positions were going to be advertised. Management held planning meetings at which this position was made clear. Consequently, the Respondent engaged a private firm (Ernst and Young), to advertise these positions in MS4. The Appellants accepted this condition. They were then placed on early retirement but they did not retain their jobs during the recruitment. When their terminal benefits were paid, they claimed that they ought to have been paid under the ZIMCO conditions of service and not on the Respondent’s conditions of service. Management did not accept this proposition. The Appellants then commenced an action in the IRC in which they claimed that they were employed on permanent and pensionable conditions of service. They alleged that the Respondent had unilaterally J4 altered their conditions of service without their consent and to their disadvantage. That as such, they were seeking declarations that:- 1. Their purported early retirement was unlawful and they should be paid damages computed by way of loss of salary and allowances up to normal retirement age. 2. Their benefits be computed on the basis of merged salary and allowances. 3. Money found to be due to them be paid with interest at the appropriate rate and the complainants further claim costs. 4. The complainants were discriminated against as the Directors whose conditions had been altered with their consent were not made to apply for employment but continued in employment. 5. The Respondent chose to underpay the complainants by failing to merge their salary and allowance when computing their benefits in line with the directive from the shareholder.” After hearing evidence from both parties, the Court below came to the conclusion that there was “mutual agreement” to amend the conditions of service so as to allow the Appellants to take early retirement and that their jobs were advertised but that the Appellants were not re­ engaged. The Court below also ruled that the Appellants were employed under the Respondent’s Corporate Conditions of Service which did not have any clause providing for incorporation of allowances into basic pay. Hence, that they were not entitled to any of the declaratory orders sought. Dissatisfied with the Judgment of the Court below, the Appellants appealed to this Court advancing three Grounds of Appeal. These are:- J5 “1. That the learned Judge in the Court below erred in law and fact in stating that the Appellants had agreed to early retirement on condition that they would not automatically be re-appointed. 2. 3. That the learned Judge in the Court below erred in law and fact when she found and held that Document 1-15 were the corporate terms and conditions of service applicable to the Appellants. That the learned Judge in the Court below erred in law and fact in failing to see the applicability of the John Paul Mwila Kasengele and 40 others case, to the Appellants’ case.” The learned Counsel for the Appellants, Mr. Chinene, relied on the Appellants’ Heads of Argument filed on 30th April, 2013. In support of Ground one of this Appeal which attacks the trial Court’s finding that the Appellants had agreed to early retirement on condition that they would not automatically be reappointed, it was submitted that this was a misdirection. We were referred to page 21 of the Record of Appeal where the Court below stated that “there was evidence that the Complainants’ retirement was by “mutual agreement”. It was contended that this condition precedent is derived from the letters which the Respondent wrote to the Appellants retiring them early following the resolution of the Board held on 13th May, 2004. It was argued that this is against the weight of evidence of objection by CW1 which the Court below totally ignored. It was further contended that the evidence of RW2 did not support the finding of the Court as RW2, under cross-examination, stated that he could not recall if there was formal writing nor any minutes. ** J6 Counsel argued that the Appellants were not unionised but management staff with individual contracts with the Respondent which meant that any agreement had to be unequivocal. And that as a corporate entity which is obliged to maintain a record of minutes, the Respondent ought to have adduced documentary evidence that the Appellants had formally written to indicate acceptance of early retirement with that condition precedent. That even assuming that the Appellants had agitated for early retirement so that they could go on contracts following implementation of the restructuring policy in graduated fashion, there is no evidence that they had applied for early retirement as that was a decision of the Board after management referred the matter to it. It was contended that by foisting this decision on the Appellants, the Board discriminated against the Appellants vis-a-vis Managers who were in superior salary grades MS1 to MS3 who were given contracts on a silver plate without a condition precedent and who were not political appointees if at all the rationale for advertising the jobs to compete with members of the public was intended to pick the best candidates. It was further argued that despite both Management and the Board having tried to discourage the full implementation of restructuring on the Appellants because of huge capital outflow from the Company as observed by the trial court, the Respondent cannot be heard to pay hefty packages to its senior staff alone and retaining them on contract but then J7 throw out the subordinates in a discriminatory fashion. And that what Management agreed with the Appellants and took to the Board is found at page 120 of the Record of Appeal where it is stated that:- “Management explained that the exceptional item related to the retirement of all managers so that they could be engaged on fixed term contracts.” It was contended that this document is part of the position paper presented officially by Management to the Board. That this was the final position of Management after all was said and done with regard to negotiations, inter se. That the Board of Directors’ resolution was that once a Manager was put on early retirement, re-engagement would not be automatic as the position would be advertised. It was submitted that this is strong documentary evidence on record which the lower court did not take into account. Therefore, that this Court should interfere with the findings of the Court below as there is overwhelming evidence which is even documented as to what Management agreed with the Appellants to take to the Board but that the Board discriminated against the Appellants. As authority, the case of Attorney General vs Marcus Kampumba Achiume1 was cited to the effect that an unbalanced evaluation of the evidence where only the flaws of one side but not of the other are considered is a misdirection which no trial court should reasonably make, and which entitles the appellate court to interfere. J8 To buttress their argument on discrimination, Section 108 (1) of the Industrial and Labour Relations Act (as Amended by Act No. 30 of 1997), Chapter 269 of the Laws of Zambia (the Act) was cited. This Section provides that:- “(1) No employer shall terminate the services of an employee or impose any other penalty or disadvantage on any employee, on grounds of race, sex, marital status, religion, political opinion or affiliation, tribal extraction or status of the employee.” It was submitted that Section 108 (3) of the Act, provides a relief of compensation for loss of employment on ground of discrimination. It was further contended that the Court below erred in law by citing the case of Birch and Humber vs The University of Liverpool2 as that case dealt with applicants who had applied for early retirement. That however, the Appellants in the current case did not apply for early retirement. And that the case of Cosmas Phiri and Eighty-five (85) Others vs Lusaka Engineering Limited (In Liquidation)3 can also be distinguished from the current case in that it dealt with the plaintiffs’ recognised representatives who were paid their terminal benefits in accordance with an agreement made between the defendant and the plaintiffs’ representatives. However, in the current case, the Appellants, being Management staff, were not represented as each one of them had a specific contract with the Respondent. * J9 In support of the second Ground of Appeal which attacks the trial Court’s holding that the document numbered 1-15 (at pages 69 - 83 of the Record of Appeal), were the Corporate Terms and Conditions of Service applicable to the Appellants, it was contended that the court below misdirected itself when it stated that “the Respondent argued that the Complainants were on the Respondent’s Corporate Terms of Service for Management dated 19th February 2007.” It was submitted that this was not only a typing error on the date but also a serious misdirection on facts as RW2, at page 170 of the Record of Appeal, stated under cross- examination, that he could not precisely say from what date those conditions became effective. Further, that the Court below also contradicted itself at page J16 when it held that Document 1-15 were the ZSIC Corporate Terms and Conditions of Service that were applicable but failed to notice that the same provided, at page 79 of the Record of Appeal, that:- “10 FIXED TERM CONTRACT” (i) All positions in Grade MS4 to MS1 shall be in a fixed term contract of employment. The initial contract will be for three (3) years duration and thereafter for durations of 2 years each contract.” Therefore, that since the Appellants were all Managers in Grade MS4, they were, entitled to mandatory fixed term contracts for an initial 3 years but that the Court below did not, however, grant the Appellants this relief and hence, the claim that the Court contradicted itself. J10 It was further submitted that the Appellants separated from the 1st Respondent on 31st December, 2004 and received their terminal benefits on or about 14th January, 2005 and that Document 1-15 was operationalized after the Appellants had left the employment of the Respondent. That, therefore, the conditions in that document did not apply to them and that unless and until the Appellants were put on contract, the Corporate Terms and Conditions, reflected at page 69 of the Record of Appeal, did not apply to them as they remained on permanent and pensionable conditions since the Respondent operated permanent and pensionable conditions of service for all employees from top to bottom prior to restructuring which was implemented in stages. It was submitted that the Appellants were, therefore, separated by early retirement on 31st December, 2004 as Document 1-15 includes MS4 employees as amongst those on contract which effectively meant that MS4 employees ceased to exist under permanent and pensionable conditions of service. Hence, this change was inevitable and the Appellants had no choice but to adapt and move on or be swept by the tide. In support of this argument, the case of Kabwe vs BP (Z) Limited4 was cited in which it was held that any conditions that are introduced which are to the detriment of the workers do not bind the workers unless they consent to them. Further reliance was placed on the case of National Jll Milling Company Limited vs Grace Simataa and Others5 in which we held that:- “If an employer varies in an adverse way a basic condition or basic conditions of employment without the consent of the employee, then the contract of employment terminates and the employee is deemed to have been declared redundant or early retired as may be appropriate - as at the date of variation and the benefits are to be calculated on the salary applicable.” As regards the claim for underpayment, it was contended that the applicable formula ought to have been based on documents marked “DZ11”, the Respondent’s own formula and “DZ12”, the shareholders’ overriding authority for incorporation of allowances when paying the Appellants’ benefits. It was argued that these were lawful documents which were not impugned by any evidence. And that these contain the formulae, the basis upon which the Appellants were underpaid. That as such, RW2’s testimony flies in the teeth of documentary evidence when he stated, under cross-examination that: “the author of DZ11 had no authority to author the document.” As authority, the case of Rodgers Chama Ponde and Others vs Zambia State Insurance Corporation Limited6 was cited in which this Court held that:- “Parol evidence is inadmissible because it tends to add, vary or contradict the terms of a written agreement validly concluded by the parties.” Further, that in Bank of Australasia vs Palmer7, Lord Morris stated that:- “Parol testimony cannot be received to contradict, vary, add to or subtract from the terms of a written contract or the terms in which the parties have deliberately agreed to record any part of their contract.” J12 It was contended that since document “DZ11” was authored by the Human Resources Manager of the Respondent with copies to the Managing Director and others, Clause 3 therein on early retirement, redundancy and/or medical discharge packages, clearly applied to the Appellants as accrued benefits except Clauses 4 and 5. In support of this argument, the case of Jacob Nyoni vs Attorney General8 was cited in which this Court held that accrued rights became entrenched in the Appellants’ conditions of service. That this position was first stated in the case of Association of Copper Mining Employees vs Mine Workers Union of Zambia9 in which we stated that there can be no doubt therefore, that those benefits became an accrued right and it is trite law that an accrued right cannot be taken away. In support of the third Ground of Appeal, it was contended that the Court below erred in failing to apply the case of John Paul Mwila Kasengele and 40 others vs Zambia National Commercial Bank Limited to the current case. It was pointed out that the Respondent was a subsidiary of ZIMCO and wholly owned by the Government just like Zambia National Commercial Bank. Hence, the Kasengele10 case ought to have been applied in the current case. It was further contended that at the time the Appellants joined the Respondent, the Respondent was a subsidiary of ZIMCO as conceded by RW1 in the Respondent’s Affidavit in J13 Opposition in which he deposed that the Appellants were initially employed under the ZIMCO Conditions of Service. Therefore, that it was not correct for the court below to say as was stated on J16 that the “weathered Memo of Mr. Penza is therefore, inapplicable”. Further, that the Supreme Court also stated in the Kasenqele10 case that “the Penza letter was never revoked and there can be no doubt from this letter that Government and/or the Minister of Finance, the sole shareholder in ZIMCO and its subsidiaries, decided that employees’ salaries and allowances be merged.” Further, it was submitted, that the cases of Van Boxtel vs Kearney11 and Re: Pan Electronic 2 are authority that the beneficial owners especially shareholders enjoy, as a matter of right, overriding authority over a company’s affairs. And that this position was restated in the Kasenqele10 case as follows:- “The Law is therefore settled and we need not say any more except perhaps to emphasize that in corporate law, Directors and Managers must dance to the Shareholder’s tune.” It was submitted that this Court has consistently followed this decision and therefore, it was baffling how the Court below ignored this celebrated case. Reference was also made to the case of ZIMCO Limited (In liquidation) vs Michael Malisawa and 17 Others13 in which we stated that:- "ln our considered opinion, if the Respondents were entitled to Club Membership and a Social Tour, whether a one-off payment or not, they J14 were still benefits which had to be incorporated into a salary for purposes of calculating terminal benefits.” It was argued that these cases fortify the position taken in the Kasengele10 case and as such, the Appellants did prove that they were underpaid in their early retirement terminal benefits. It was therefore, submitted that the court below should be reversed and the Appeal upheld. In augmenting the Heads of Argument, the learned Counsel for the Appellants emphasised that this is an appropriate case in which this Court should disturb and reverse the findings of facts made by the trial Court in that the trial Court’s finding of facts were not in accordance with the evidence. Counsel referred to several pages of the record of appeal which we have read. It was submitted that, on the basis of these arguments and on the basis of the decision in the case of Attorney-General vs Marcus Kampumba Achiume1. the findings by the Court below in this matter should be reversed. It was further contended that Section 108 of the Industrial and Labour Relations Act prohibits discrimination. That, however, the Appellants were retired on the basis of their status and hence, the argument that they were discriminated against. And that this is what led to the loss of employment which Section 108 of the Act prohibits. Therefore, that Ground one should succeed. J15 In augmenting Ground two, the learned Counsel for the Appellants submitted that the Court below did not take into account certain considerations in arriving at the decision in computing the Appellants’ benefits. That at pages 135 - 136 of the Record of Appeal, it is stated that:- “The other item we are complaining is the issue of basic pay for completing our benefits. Our understanding is that our allowances are supposed to be added to the terminal benefits and that figure should be used to compute the benefits. We are aware that others after us were paid merging basic pay and allowances. We are objecting to this early retirement. We were employed on permanent and pensionable conditions of service when we joined. As far as we know retirement age in Zambia is 55 years. None of us was 55 when we were given these letters. None of us applied for a medical discharge if it meant going on early retirement.” In support thereof, the cases of Bank of Australasia vs Palmer7 and Jacob Nyoni vs Attorney General8 were cited. It was submitted that on the basis of Attorney-General vs Marcus Kampumba Achiume1, this Court should upset the findings of fact of the trial court. Counsel concluded by urging us to allow this Appeal and to overturn the Judgment by the Court below. On the other hand, in opposing this Appeal, the learned Counsel for the Respondent, Mr. Kalokoni, relied on the Respondent’s Heads of Argument filed on 14th May, 2014. In response to the first Ground of Appeal, it was contended that this ground merely attacks the findings of fact made by the Court below. As authority, the case of Augustine J16 Kapembwa vs Danny Maimbolwa and Attorney General14 was cited in which this Court held, inter alia, that:- “(iv) The appellate court would be slow to interfere with a finding of fact made by a trial court, which has the opportunity and advantage of seeing and hearing the witnesses but in discounting such evidence the following principles should be followed: That: (c) (b) "(a) by reason of some non-direction or mis-direction or otherwise the judge erred in accepting the evidence which he did accept; or in assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or it unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or in so far as the judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer."” (d) Counsel then posed the question he thought was crucial for determination before the court below as: who conceived the idea of the Appellants going on early retirement and were they discriminated against in any way? To answer this question, learned Counsel referred to the findings of fact made by the Court below where the IRC stated that- “We have carefully examined the evidence as presented to us and we are inclined to believe the Respondent when they stated that the idea of going on early retirement was conceived by the Managers in MS4. We are of the view that the Complainants are being economical with the truth when they denied not having been part and parcel of the decision by Managers in MS4 to make a request for early retirement. We strongly hold the view that the early retirement was not foisted on the Complainants with their eyes closed. They do not dispute that there were meetings held where the decision to place them on early retirement was discussed and also subsequent Board sentiments communicated to them. • I J17 We consider that they collectively agreed to be placed on early retirement. We have not been given any proof to support the contention that they objected to the early retirement.” It was submitted that the above findings were supported by the evidence of the then Company Secretary for the Respondent, Mr. Kamfwa Obote Kasongo (RW1), who told the Court below that:- “the Appellants themselves are the ones who conceived the idea of going on early retirement... Thereafter, management started receiving representations from the next grade of employees which was MS4 which covered Managers where the Complainants belonged. The representations were to the effect that they too wanted to be retired and re-engaged on fixed term contracts.” Mr. Kalokoni further submitted that the Respondent’s reaction to the Appellants’ representations that they be retired early and be put on contract and why conditions were attached to the Appellants’ going on early retirement and what these conditions were, are discernible from Mr. Kamfwa’s evidence which was that:- “Management decided to take these representations to the Board for guidance through a Committee of the Board known as Remuneration and Staff Welfare Committee. Initially the Committee requested us to do the cost benefit analysis of such a decision and we did. After that the Committee accepted the recommendation to put employees in MS4, Complainants included, on contract but with conditions attached... One of the conditions was that it be made very clear to employees in MS4 that once they are retired, re-engagement would not be automatic but the positions would be advertised and affected employees would have to compete with other applicants for those jobs.” As to whether these conditions were explained to the Appellants, Counsel cited RW1’s evidence as follows:- J18 “I do recall on 2 forums these conditions being clearly explained to the Complainants. One such forum was during a budget meeting for the Company held in October, 2004. Then there was another forum when the employees who were going to be affected had in-house seminar which was attended by the Complainants...! was forced out of the office to go and address the Appellants.” Regarding the Appellants’ reaction, it was submitted that RW1 told the court below that the Appellants “unanimously informed him that they understood the conditions and that they were ready, whereupon he took that information back to his colleagues in Management and then to the Board.” The Board of Directors’ decision was to grant the Appellants and other employees their wish as they had accepted the conditions. And that the Board of Directors directed the Respondent’s Management that in order to remove personality issues from the process, an external firm should be used to advertise the positions and make recommendations to Management. Hence, Management engaged the services of Ernst and Young which advertised the positions to the general public. It was further submitted that RW1 informed the court below that these conditions were attached to the Appellants’ early retirement because the Appellants had insisted that they wanted to retire and be re-engaged and the Board put conditions in the hope that they would be persuaded to think otherwise but they accepted to be retired with these conditions. In support of this position, Counsel cited the evidence of Mr. Anock Mbambara (RW2), who was also in MS4 with the Appellants, and also J19 opted for early retirement. RW2 told the IRC that they were never forced to go on early retirement at all. That RW2 further testified that:- “Managers in MS4 grade desired and opted to be retired from permanent and pensionable and put on contract. Several meetings took place. We even had a workshop to that effect and Managers demanded that they be retired and put on contract. ” Mr. Kalokoni, therefore, contended that the conditions attached to the MS4 employees’ early retirement were that once retired, the Managers would not automatically be put on contract and that the positions would be advertised and if these Managers so wished, they would be free to compete with other members of the public who would be interested. And that these conditions were communicated to the Appellants and because they wanted to go on early retirement, they agreed. It was argued that even the letters of retirement that were sent to the Appellants repeated the terms and conditions attached to the early retirement as indicated in the sample letter that was reproduced. It was submitted that Mr. Dickson Zulu (CW1) admitted to the contents of this letter under cross-examination. It was therefore, the Respondent’s contention that the findings of fact made by the lower court that early retirement was not foisted upon the Appellants is supported by abundant evidence on record and hence, the Appellants’ submission that they were forced to go on early retirement with conditions attached should be dismissed. In support of this argument, the Respondent relied on the J20 case of Jones Atkins Nyirenda vs Pre-Secure Limited15 in which it was held that “Section 97 of the Industrial Relations Act bars an Appeal on findings of fact to come to this Court.” And that in Austine Mubanga vs Grinaker LTS16, this Court held that “the provisions of Section 97 prescribes against appeals lying to this Court on findings of fact by the Industrial Relations Court.” In response to the second Ground of Appeal, it was contended that it also attacks the findings of fact made by the IRC which are in fact supported by ample evidence on record. Mr. Kalokoni posed a question as to what were the applicable conditions of service at the time when the Appellants went on early retirement. In response to his own question, Counsel referred to the evidence of RW1 which was that:- “They were serving under Corporate Conditions of Service. No, they did not work under ZIMCO Conditions of Service. Following the liquidation of ZIMCO, Zambia State Insurance Corporation decided to come up with its new conditions of service to replace the ZIMCO conditions which was around 1997. The Respondent decided to come up with Corporate Conditions of Service since ZIMCO was no more... Page 1 is Zambia State Insurance Corporation Corporate Terms and Conditions of Service. I can confirm these were the Conditions applicable to the Complainants.” It was argued that the above evidence is on record and is unchallenged. It was submitted that the Appellants did not disassociate themselves from the ZSIC Corporate Terms and Conditions of Service which are shown at pages 69-83 of the Record of Appeal nor did they J21 protest against their implementation when they were still serving under the Respondent. In support of this submission, the evidence of Moses Lesho (CW2) in cross-examination was cited where he stated that “we did not disassociate ourselves from the above conditions of service.” Further, that under intense cross-examination, RW2, told the court below that:- “in so far as I know, we all served under Zambia State Insurance Corporation Conditions” and that “ I was never and I know all the others were never under ZIMCO Conditions of Service. ZIMCO was liquidated way back - Zambia State Insurance Corporation had its own Corporate Conditions of Service from pages 1-15." It was further contended that the Appellants in fact received their benefits under the same conditions of service ‘without any complaint at all’. That as such, the Appellants should not be allowed to blow hot and cold as they are now rejecting the Respondent’s conditions of service after receiving benefits under the same and hence, their claim should be dismissed. As authority, the case of Richard Kalyanqu and 26 Others vs Maamba Collieries Limited17 was cited in which we held that:- “The maxim allegans contraria non est audiendum applies in this case as our firm view is that the Appellants are blowing hot and cold as they accept the 2005-6 Conditions but are now purporting to reject them after receiving benefits under the same.” It was the Respondent’s further contention that the Appellants are trying to mislead the Court over Clause 10 which provides for fixed term contracts of employment. That on the contrary, the Appellants were on permanent and pensionable employment as the evidence on record shows and that it was them that fought to be put on contracts. That only if they J22 had succeeded in winning back their positions were they going to be put on fixed term contracts of employment. And that this was conceded to by CW2 who told the court below that they were not on fixed term contracts and therefore, Clause 10 did not apply to him and his colleagues. It was, accordingly, submitted that Ground two of this Appeal is misleading to this Court as it is not supported by the evidence on record and hence, the Appellants have cited the cases of Kabwe vs BP(Z) Limited4 and National Milling Company Limited vs Grace Simataa and Others5 out of context. As regards the allegation by the Appellants that they were underpaid, it was argued that this is against their own evidence which is on record as CW2 testified that:- “This is the formula for early retirement according to these conditions of service. CW2 - referred to DZ2 - I was paid 24 months’ salary as per DZ and on page 13 item 17.1 (a) The whole formula under 17.1 was paid to us. Using this formula, Zambia State Insurance Corporation does not owe us anything.” It was submitted that the Appellants are blowing hot and cold and therefore, their claims should be dismissed as well. In response to the third Ground of Appeal, which attacks the Court below’s failure to apply the case of John Paul Mwila Kasengele and 40 others vs Zambia National Commercial Bank Limited10 to the Appellants’ case, it was submitted that the Appellants have misunderstood the Kasengele10 case. Firstly, because the Kasengele10 case dealt with J23 the employees who were on ZIMCO Conditions of Service that existed at the time of retirement/separation whereas, in the current case, the Appellants were on ZSIC Limited’s Corporate Terms and Conditions of Service as found by the Court below. Therefore, that the Court in the Kasenqele10 case was interpreting the ZIMCO conditions of service which is not the case in the current case. Secondly, that the current legal position is that conditions of service which were in existence at the time of separation are the ones to use for the purposes of computing terminal benefits. And that in the current case, the conditions of service that existed at the time of the Appellants’ early retirement were the Zambia State Insurance Corporation Limited’s Corporate Terms and Conditions of Service and not the ZIMCO Conditions of Service. Hence, the court below justifiably referred to the “Penza Memo” as “the weathered memo of Penza was therefore inapplicable.” It was submitted that the court below cannot be faulted for holding so as CW2, (at page 148 of the Record of Appeal), admitted that “there is no clause for incorporating of basic pay and allowances in the Zambia State Insurance Corporation Corporate Conditions of Service.” Therefore, that the claims for incorporation of allowances are misconceived at law. The case of Colgate Palm Olive Zambia Limited vs Able Shemu Chuka and 110 Others18 was also cited in which we stated that:- J24 “In Rosemary Ngolima and 10 Others vs Zambia Consolidated Copper Mines (Mufulira Division), we held that: ‘It is trite law that in any employer/employee relationship the parties are bound by whatever terms and conditions they set out for themselves.’ The case involving the Plaintiffs is therefore, no exception to the rule... If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting.” In sum, the Respondent contended that the Appellants’ Appeal is mainly based on the lower court’s findings of fact which are in fact supported by ample evidence on record. And that the Appellants are trying to negotiate for better conditions of service retrospectively through the judicial process which this Court abhors. And that this appeal also contravenes Section 97 of the Act and hence it should be dismissed with costs. We have seriously considered this Appeal together with the Grounds of Appeal filed and the Arguments in the respective Heads of Argument and the authorities cited therein. We have also considered the Judgment by the learned Judge in the Court below. It is our considered view that this Appeal raises one major question and this is whether the early retirement of the Appellants was wrongful or not. As regards Ground one, it is our considered view that Ground one raises three issues for determination. The first issue raised attacks the finding by the court below that the early retirement of the Appellants was by ‘mutual agreement’. It is contended that this finding is not supported by J25 the oral evidence of CW1 and RW2 as well as documentary evidence on record. And that the court below erred by relying on the Birch and Humber vs University of Liverpool2 case in coming to that finding as that case dealt with applicants who had applied for early retirement whereas in the current case, the Appellants did not. And that the case of Cosmas Phiri and Eighty-five (85) Others vs Lusaka Engineering Limited (In Liguidation)3 should also be distinguished from the current case in that it dealt with plaintiffs who were paid their terminal benefits in accordance with an agreement made between the defendant and the plaintiffs’ recognised representatives while in the current case, the Appellants were non-represented as they were Management employees. The thrust of the Respondent’s position in response to the above arguments was that the idea of going on early retirement was not foisted on the Appellants by the Respondent but that the Appellants themselves conceived it together with other MS4 grade employees. And that although this argument attacks findings of fact made by the Court below, the said findings are nonetheless, supported by abundant evidence on record. We have anxiously considered the above arguments. It is our firm view that the evidence on record shows clearly that when the Respondent embarked on early retirement for its employees in salary scales MS1 to MS3, the Appellants’ salary scale, MS4, was left out. What followed was a request if indeed, not a demand, by the Appellants and other employees in J26 salary scale MS4 to also be given the option of going on early retirement. The matter was taken to the Respondent’s Board which put up conditions upon which the Appellants could go on early retirement. In accordance with the Respondent, the conditions were explained to the Appellants. These conditions were that the Appellants would not automatically be re­ engaged to their positions as their positions would be advertised and then the Appellants would have to compete with the public. The court below agreed with the Respondent that the Appellants unanimously accepted the conditions attached and that it was upon this unanimous acceptance of the conditions that the Respondent agreed to allow the Appellants to go on early retirement. And that the evidence of CW1, RW1 and RW2 supports this. Perusal of the evidence on record including that of CW1 who is the 1st Appellant in this Appeal, was that he and the rest of the Appellants were put on early retirement and paid in accordance with the formula that was indicated at the Budget Meeting in Siavonga; that the Appellants signed for these payments freely, indicating that they were voluntarily separating from the Respondent Company; that whereas Directors and Deputy Directors were put on contracts upon being paid off, in the Appellants’ case, they were told that ‘once they were put on early retirement, their jobs would be advertised and they would have to compete with members of the public; and that they did not object to this in writing. J27 RWTs evidence more or less confirms CW1’s evidence that the Appellants’ scale, MS4, was not included in the early retirement scheme and that it was the Appellants and other employees in salary grade MS4 who initiated and made representations to Management to also be included in the early retirement scheme. And that the Respondent’s Board put up conditions for re-engaging MS4 grade employees as indicated above. And that those conditions were brought to the attention of the Appellants at two fora, whereat MS4 grade employees, including the Appellants herein, unanimously accepted the conditions. Therefore, that the early retirement of the Appellants was not only by mutual agreement but that the Appellants themselves initiated and pressed for it and prepared budgets for their own packages. The evidence of RW2, who was also the Respondent’s employee in MS4 scale, was that, he, together with all other MS4 scale Managers, were put on early retirement at their request and that conditions were put by the Board and that the conditions were explained to them all and they agreed to the same as they wanted to be retired. And that after they retired, their positions were advertised and some of them, including some of the Appellants, re-applied. And that he (RW2) was one of those who successfully competed for the position of Legal Counsel. RW2 also stated that the Managers prepared budgets themselves for their retirement benefits. He, therefore, denied any alleged discrimination against them J28 and stated that they were treated more than fairly because they are the ones who pushed to be put on contracts despite the huge outflow of cash on the Respondent and despite both Management and the Board discouraging them. Perusal of the record has shown that the oral evidence summed up above is supported by documentary evidence on record. In this respect, we draw attention to pages 98 - 127 of the Record of Appeal whereat there are minutes of the Board Meeting approving the early retirement of Managers; letters to the Appellants informing them of early retirement following the agreement between Management and the affected employees; signed declaration of terminal benefits in which the Appellants indicated that it was a voluntary scheme; refunds of pension contributions and the Respondent’s Budget for 2005 which included allocations for restructuring. In view of the above evidence, the Appellants cannot successfully argue that the court below erred when it held that their early retirement was by mutual agreement as their argument that they did not retire by mutual consent flies directly in the teeth of the evidence summed up above as well as the documentary evidence on record. The record further shows that the only issue the Appellants raised after receipt of their terminal benefits is the alleged underpayment and not that they were not consulted and not that they did not agree to early retirement or that the early J29 retirement was foisted on them “with their eyes closed” as argued. We therefore, find no reason to fault the court below for finding as it did as the finding is supported by the evidence on record. As regards the argument that the court below ought not to have relied on the case of Birch and Humber v University of Liverpool2 as the two cases are distinguishable, our firm view is that the court below was on firm ground by relying on that case. Although not on all fours with the current case, the decision in that case is highly persuasive despite the fact that in the earlier case, the appellants applied for early retirement while in the current case, the Appellants in fact agitated for it and submitted proposed budgets for their terminal benefits on early retirement as MS4 grade employees. The common threshold between the two cases however, is that the retirement, whether applied for or requested, entails that there was mutual agreement in both cases. Therefore, there was nothing wrong for the court below to have relied on the English authority as it was/is persuasive. This also applies to the Appellants’ argument that the court below should not have relied on the case of Cosmas Phiri and 85 Others vs Lusaka Engineering Company Limited (in Liquidation)3 and/or that the court below should have distinguished that case from the current case. Our firm position is however, that the facts of the earlier case can only be distinguished from those in the current case to the extent that in the earlier J30 case, early retirement was negotiated for by the appellants’ union while in the current case, the Appellants and other MS4 grade employees being non-unionised employees, directly engaged Management and that the common thread between the two cases is that early retirement was arrived at by mutual agreement between the employer and the affected employees, whether unionised or otherwise. The principle is the same and this is that the consent of the employee must be obtained and in accordance with the evidence on record and as properly found by the court below, this was done in the current case. As regards the second issue raised under Ground one, the Appellants’ argument is that the Respondent should have produced documentary evidence to show that the Appellants accepted and/or applied for early retirement with a condition that they would not automatically be re-engaged as they would have to compete for their positions with members of the public. And that since the Appellants were non-unionised employees who served under individual contracts of employment, any variation of their conditions of service required unequivocal consent. The gist of the Respondent’s argument in response was that the conditions attached to the Appellants’ early retirement were explained to the Appellants and that they unanimously responded that they understood them. And that Ground one in fact, attacks findings of fact J31 made by the Court below which findings are nonetheless, supported by abundant evidence on record. We have considered the above arguments. Our position is that this issue has already been extensively dealt with above. However, we wish to add that the Appellants, in their evidence, did not point to any evidence to show that at the time the condition precedent for early retirement was communicated to them, they did not agree or indeed, that they individually dissociated themselves from the collective representation made to Management by MS4 grade employees, the scale in which they too belonged. It was incumbent upon them to dissociate themselves from the meetings the MS4 scale employees were having with Management prior to their early retirement or to indicate their wish not to be considered for early retirement. Therefore, although the Appellants have attempted to assert that as non-unionised employees, they needed to unequivocally agree and/or to be consulted before any variation of their individual contracts could be effected, their argument is not only porous and a red herring but is also not plausible because CW1, who is the 1st Appellant in this Appeal, told the court below that the Appellants collectively agreed with other MS4 grade employees to request Management to go on early retirement. Clearly, the Appellants were part and parcel of the representations made to the Respondent’s Management. Hence, they cannot now demand for any documentation to show that they accepted to be retired with a J32 condition precedent. The Respondent’s letter to the 1st Appellant which is on record supports this position and reads in part as follows:- Ct 30^ December, 2004 Mr. Dickson Zulu Debt Recoveries Department Mpendwa House NDOLA. Dear Mr. Zulu, RE: EARLY RETIREMENT We wish to refer you to the new policy agreed upon by management and affected staff to have all employees in MS4 salary scale on contract. We also wish to draw your attention to the fact that both parties have reached an understanding that once retired, you will not automatically be re-appointed as the position will be advertised and you will be at liberty to apply for the position and compete with other applicants... Yours sincerely I. M. Muyenga MANAGING DIRECTOR” The fact that some of the Appellants after retirement went on to re­ apply for their jobs, raises the question that begs an answer and this is:- if at all the Appellants did not either expressly agree or acquiesce to their early retirement with the ‘condition precedent’ as forcefully argued, then why did some of the Appellants re-apply for the same jobs they are now claiming they did not agree to relinquish? We find no merit in the second issue raised. As regards the third issue raised under Ground one, the Appellants contend that by foisting the early retirement on them, the Respondent’s J33 Board discriminated against them on the basis of their status vis-a-vis the Managers in MS1 to MS3 grades who did not have any conditions attached to their early retirement. And that this discrimination resulted in the Appellants’ loss of employment. The response by the Respondent was to repeat their argument that the conditions attached to their early retirement were explained to the Appellants and that they unanimously responded that they understood. Also that this assertion attacks findings of fact made by the Court below which findings are nevertheless, supported by abundant evidence on record. We have critically considered the above arguments regarding the alleged discrimination against MS4 grade employees. The basis of the alleged discrimination is that those in salary grades MS1 to MS3 were automatically given contracts upon retirement without any condition precedent whereas their positions were advertised to members of the public. Our firm position on this issue is that the court below cannot be faulted for finding that there was no discrimination by the Respondent’s Board by attaching conditions to the Appellants’ early retirement. We totally agree with the reason given by the court below that there was no discrimination whatsoever against MS4 grade employees as the Appellants and indeed, all MS4 grade employees, were not similarly circumstanced with those senior Managers in grades MS1 to MS3. In Chilanga Cement PLC vs Edson Mwiinga and 10 Others19, we stressed f J34 that employees who are not similarly circumstanced cannot expect to benefit or to be treated in the same way. We apply the same principle to the current case as it is a fact that whereas the idea of putting MS1 to MS3 grade employees on contracts was conceived by the Board of Directors of the Respondent, in the case of MS4 grade employees, it was the employees themselves who agitated for early retirement despite Management’s effort to discourage them. The evidence also shows that the Appellants did not object to the early retirement with the conditions put up by the Respondent’s Board. They proceeded to receive their terminal benefits which they, themselves budgeted for and were paid. Some went as far as to re-apply for their positions without any complaint. Some succeeded; others did not. We do not at all, see any discrimination. Therefore, the court below was on firm ground when it found no discrimination against the Appellants. The Appellants are also estopped from now turning around and claiming discrimination based on the condition attached to their retirement when their early retirement with conditions was by mutual agreement as illustrated above. For the reasons given above, Ground one of this Appeal fails. With regard to Ground two of this Appeal which requires us to determine the conditions of service the Appellants retired on and/or the conditions of service under which their terminal benefits ought to have been computed, we wish to point out from the outset that it is a settled J35 principle that conditions of service applicable at the time of separation are to be applied in computing terminal benefits. We espoused this principle in the case of Maamba Collieries Limited vs Douglas Siakalonqa and Others20 where we made it clear that when computing terminal benefits of any employee, the existing conditions of service at the time of separation have to be used. We also stated that not all benefits enjoyed by an employee during his period of service must be integrated in the basic salary before computing the employee’s terminal benefits except where the conditions of service so state. In the current case, in supporting their argument that the applicable conditions of service at the time of their early retirement were those reflected at pages 56-58 as “DZ11” dated 7th October, 2003 and not “Document 1-15” shown at pages 69 to 83 of the Record of Appeal which the court below found to be applicable, it was argued that the finding by the court below was contrary to RW2’s evidence as he told the court below that he could not precisely say when the conditions in Document 1-15 became effective. It was the Appellants’ further position that if those were the conditions of service applicable to them, then they should have been serving under fixed term contracts of three years after restructuring because prior to their early retirement, they were permanent and pensionable employees. They asserted that the conditions in Document 1- 15 only became effective after their early retirement and after they were < ■ V, J36 paid their terminal benefits. Hence, their argument that their retirement benefits ought to have been calculated and/or based on those conditions of service in “DZ11”. The Appellants further argued that if ZIMCO conditions of service were applied to them as reflected in “DZ12”, then allowances should have been merged with their basic salary in computing their retirement benefits. The response by the Respondent was that the court below was on firm ground as those were the applicable conditions of service and that the Appellants did not dissociate themselves from those Conditions nor did they protest against their application whilst in employment. The court below did consider the issue of the applicable conditions of service of the Appellants. As regards the assertion that ZIMCO conditions of service ought to have applied to the Appellants, the court below found that after the dissolution of ZIMCO in 1995, the Respondent came up with its own corporate terms and conditions of service. And that in view of this, any claim under “DZ12” could only be possible up to the time ZIMCO was liquidated. Although the exact date is not clear, the court below accepted the evidence that immediately ZIMCO was liquidated, the Respondent’s own corporate conditions of service came in place as the Appellants continued in the employment of the Respondent. The court below was of the view that at the time of the Appellants’ early retirement, the conditions of service that applied to them were those contained in Document 1-15 at 1 • •*. . ♦ J37 pages 69-83 of the Record of Appeal. And that in accordance with those conditions of service, there was no provision for merger of basic pay with allowances in computing the terminal benefits. We have seriously considered the above arguments and the finding by the court below. Perusal of the pleadings and the evidence on record has shown that the Appellants were employed under ZIMCO conditions of service when the Respondent was a subsidiary of ZIMCO. When ZIMCO went into liquidation in the 1990s, the Respondent put in place its own conditions of service, the ZSIC Corporate Terms and Conditions of Service. The Appellants continued working under the ZSIC corporate conditions of service until their early retirement. There is no evidence on record showing that the Appellants protested or raised issues concerning the application of the ZSIC conditions of service to them and/or that they did not acquiesce to the application of those conditions. Therefore, their claim that their severance packages under ZIMCO conditions which could have entitled them to benefit from the directive in the “Penza letter” (DZ12), as has been argued, has no basis. They are therefore, estopped from claiming that they retired under the ZIMCO conditions of service. Further, and as we see it, the issue under Ground two of this Appeal is simply which of the Respondent’s conditions of service did the Appellants retire on so that their terminal benefits are computed under those conditions. The Appellants have on one hand claimed that the » I J38 conditions in “DZ11” applied to them while the Respondent on the other hand, have argued that the applicable conditions were those in “Document 1-15.” We have perused the respective conditions of service. It is a fact that from the time ZIMCO went into liquidation, the Respondent put in place its own corporate conditions of service which were being revised from time to time. Although the Respondent has forcefully argued that the applicable conditions of service at the time of the Appellants’ early retirement were those found in “Document 1-15” and not those in “DZ11” as argued by the Appellants, we have found no plausible explanation as to why the conditions of service in Document 1-15 allude to all employees in salary grades MS1 to MS4 as being on mandatory fixed term contracts of three years if the Appellants never served under fixed term contracts as they were on permanent and pensionable conditions of service at the time of their early retirement. Clearly, those conditions of service must have become effective after the restructuring process was finalised and after the Appellants had left employment. As can also be seen from the early retirement letters from the Respondent’s Managing Director to the Appellants dated 30th December, 2004, a new policy was put in place under which employees in MS4 salary grade were placed on contracts. This, in our view, entails that Document 1-15 came after this new policy which required MS4 employees to be placed on contracts. We also note <>» J39 that in fact, the conditions of service in “Document 1-15” are not dated. On the other hand, “DZ11” clearly shows the date when it was issued. This was after approval by the Respondent’s Board and this was done whilst the Appellants were still in employment as it is dated 7th October, 2003 while the Appellants retired on 30th December, 2004. On the authority of our decision in Attorney General vs Marcus Kampumba Achiume1, we find that this is an appropriate case in which the finding of fact by the trial court can be reversed as we are satisfied that the court below misapprehended the facts when it held that the applicable conditions of service are those contained in “Document 1-15”. We, accordingly, reverse the said finding and order that the Appellants’ retirement benefits be recomputed on the basis of the conditions of service contained in document “DZ11” which were the last conditions of service the Appellants retired on. In an event of failure to agree on the quantum, either party is at liberty to apply before the Deputy Registrar for assessment which should be less what has already been paid to each one of the Appellants. Any sums found due, if any, shall attract interest at the short term deposit rate from the date of Notice of Complaint to date of this Judgment and thereafter, at the Bank of Zambia recommended lending rate up to payment date. Ground two has therefore, partially succeeded to the extent elucidated above. J40 With regard to Ground three, the question is whether the John Paul Mwila Kasenqele and Others vs Zambia National Commercial Bank Limited10 case applies to the current case. In the earlier case, the Minister of Finance, the sole shareholder in ZIMCO and its subsidiaries, wrote a letter to the Managing Director of ZMICO, that the ZIMCO Board had resolved, on 26th August, 1994 that its employees’ salaries and allowances were to be merged in computing their terminal benefits and that this directive was to be implemented without further delay. The appellants, in the Kasenqele10 case, were employees of the respondent; a subsidiary of ZIMCO, which was wholly owned by Government with the Minister of Finance being the sole shareholder. They retired on divers dates but between 18th March 1995, and 30th November, 1996. Upon their retirement, the appellants were paid terminal benefits not based on the Minister’s directive but on ZIMCO conditions of service then applicable. In that case, we held that in corporate law, Directors and Managers must dance to the tune of the Shareholders as they have no powers to fetter, change or modify a Shareholder’s decision. Although it has been argued by the Appellants in the current case that the Respondent’s failure to merge their allowances with their basic pay resulted into them being underpaid, our firm position is that based on what we have stated in Ground two above, this Ground of Appeal cannot succeed. We so state as clearly, the Kasenqele10 case does not apply to •r »■ J41 the current case as the Appellants were serving under the ZSIC Corporate Terms and Conditions of Service at the time of their early retirement and not under the ZIMCO Conditions of Service. The ZSIC Corporate Terms and Conditions of Service clearly, did not provide for merger of allowances with the basic salary in computing terminal benefits. We, therefore, find no reason to fault the court below for not applying the Kasengele10 case to the current case. Ground three therefore, lacks merit. The sum total is that the Appeal in this matter has only partially succeeded to the extent spelt out under Ground two of this Appeal. It is therefore, only fair that each party bears its own costs of this Appeal. H. Chibomba SUPREME COURT JUDGE E. M. yafmaxrntfu SUPREME COURT JUDGE