Engen Petroleum Zambia Limited v Willis Muhanga and Anor [2019] ZMSC 390 (2 August 2019)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: APPEAL NO. 117/2016 ENGEN PETROLEUM ZAMBIA L . qi.aMj (cid:9) S' oucOFZAMBIA APPELLANT AND (cid:9) WILLIS MUHANGA JEROMY LUMBA c . M ST RESPONDENT 2ND RESPONDENT CORAM: MAMBILIMA CJ, MMftAAND KAOMA JJS; On 2nd April, 2019 and 2nd August, 2019 For the Appellant For the Respondents Mr. M. J. Kawana, of Corpus Legal Practitioners Mr. M. Lisimba, of Mambwe Siwila and Lisimba Advocates JUDGMENT MAMBILIMA, CJ, delivered the Judgment of the Court. CASES REFERRED TO: 1. NATIONAL MILLING COMPANY LIMITED V GRACE SIW. TAA & OTHERS (2000) ZR 91 2. BARCLAYS BANK ZAMBIA PLC V ZAMBIA UNION OF FINANCIAL INSTITUTIONS AND ALLIED WORKERS (2007) ZR 106 3. CHILANGA CEMENT PLC V KASOTE SINGOGO (2009) ZR 122 4. ZIMCO (IN LIQUIDATION), ZAMBIA PRIVATISATION AGENCY V MICHEAL MALISAWA AND OTHERS, JUDGMENT NO. 139 OF .2009 5. MAAMBA COLLIERIES LTD v DAGLUS SIAKALONGU AND OTHERS APPEAL NO. 51/2004 6. COLGATE PALMOLIVE (Z) INC V CHUXA AND OTHERS APPEAL NO. 181/2005 7. WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT I IMITED (1982) ZR 172 (cid:9) (cid:9) (cid:9) J2 8. KONKOLA COPPERMINES PLC V JACOBUS KEUNE, APPEAL NO. 29/2005 9. HOLMES LIMITED V BUILDWELL CONSTRUCTION COMPANY LIMITED (1973) ZR 97 10. 11. RE WILLIAM PORTER AND CO. LTD. (1937) 2ALL ER 36 MEAMUI KONGWA V ZAMBIA NATIONAL COMMERCIAL BANK LTD APPEAL NO. 132/2011 12. INDO ZAMBIA BANK LIMITED v MUSHAUKWA MUHANGA (2009) ZR 266 13. ATTORNEY GENERAL V NACHIZI PHIRI AND 10 OTHERS APPEAL NO. 68/2009 14. ZAMBIA DAILY MAIL LIMITED V GREVACIOUS MAYENGA, CUTHBERT MUTALE AND LUKA DLAMINI, APPEAL NO. 31/2010 15. CHOLA CHAMA V ZAMBIA ELECTRICITY SUPPLY CORPORATION LIMITED (2008) 1 ZR 222 16. 17. 18. KITWE CITY COUNCIL V. WILLIAM NGUNI (2005) ZR 57 AMIRAN LIMITED V ROBERT BONES, APPEAL NO. 42/2010 ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED V MIRRIAM SHABWANGA AND 5 OTHERS, APPEAL NO. 78/2016 & APPEAL NO. 81/2016 LEGISLATION REFERRED TO: a) THE EMPLOYMENT ACT, CHAPTER 268 OF THE LAWS OF ZAMBIA b) THE MINIMUM WAGES AND CONDITIONS OF EMPLOYMENT ACT, CHAPTER 246 OF THE LAWS OF ZAMBIA c) THE INCOME TAX ACT, CHAPTER 326 OF THE LAWS OF ZAMBIA d) THE INDUSTRIAL AND LABOUR RELATIONS ACT, CHAPTER 269 OF THE LAWS OF ZAMBIA WORKS REFERRED TO: (i) CHITTY ON CONTRACTS, VOLUME 1, 13TH EDITION, (2008) PARAGRAPH 22- 32 (1i)HALSBURY'S LAWS OF ENGLAND, VOLUME 22, 5TH EDITION, PAPA 353 (iii) BLACK'S LAW DICTIONARY 1. INTRODUCTION This appeal is from the Judgment of the Industrial Relations Court (IRC), delivered on 25th April, 2016, ordering the J3 recalculation of the Respondents' redundancy benefits at the rate of five months' salary for each year served, inclusive of allowances. It further awarded interest and costs to the two Respondents. 2. BACKGROUND 2.1 The material facts in this appeal are common cause. The two Respondents are former employees of the Appellant. They started out as employees of Chevron Zambia Limited before being transferred to the Appellant. 2.2 The 1st Respondent was first employed on 1st September, 2006 as a Senior Logistics HES Specialist for South and Central Africa, while the 2d Respondent was employed on 7th March, 2007 as a Retail Business Manager. While working for Chevron Zambia Limited, the Respondents enjoyed terms and conditions of employment for non- unionized staff, which included a non-contributory pension scheme and a redundancy benefit. Clause 21 of the said conditions of service provided for redundancy as follows:- "21. REDUNDANCY An employee whose contract of service has been terminated by reason of redundancy shall: J4 21.1 Be entitled to such redundancy payment as agreed between the employee and the company, but shall not be less than five (5) months per year of service as required by law. 21.2 Be paid redundancy benefits not later than the last day of duty of the employee. 21.3 Where the company is unable to pay the redundancy benefits on the last day of duty of the employee, the Company shall continue to pay the employee full wages until the redundancy benefits are paid as required by the law." 2.3 Chevron Zambia Limited was acquired by the Appellant's holding company in 2010 and was renamed Engen Marketing Limited. The Appellant undertook to maintain the terms and conditions of employment for ex-Chevron employees for a period of not less than 12 months post - close'. The Appellant indicated that it would 'consult and inform employees of proposed changes in line with country legal requirements' and 'ensure a fair and equitable consultation process'. 2.4 On 1st December, 2010, the Appellant wrote a letter to the 1st Respondent confirming his (1st Respondent's) continued employment with Engen Marketing Limited, in line with the terms and conditions of the share purchase agreement which was entered into between Engen and Chevron. The letter, which was signed by the Managing Director and the Regional Human Resource Manager, stated: "The legal entity (your employer) remains the same, but only the shareholding owners has changed as a result the name under which the entity will be managed is changing to Engen. 1. TERMS AND CONDITIONS OF EMPLOYMENT 1.1 Engen will maintain your current terms and conditions of employment in line with the change of share ownership agreement. 1.2 Engen will be substituted in the place of Chevron in respect of all contract of employment in existence immediately before the date of transfer. 1.3 All the rights and obligations between Chevron and their employees at the time of the transfer will continue in force as if they had been rights and obligations between Engen and the employees. 1.4 Your years of service accrued at Chevron will be recognized by Engen and transferred accordingly in line with the Share Purchase Agreement...." 2.5 Later, in March, 2011, the Respondents signed letters which were written to them under the hand of the Managing Director, acknowledging the further transfer of their contracts of employment from Engen Marketing Limited to Engen Petroleum Zambia Limited. The letters were couched as follows: "RE: Transfer letter We refer to the consultation sessions between the C3mpany and yourself regarding the Company's need to transfer its Engen Marketing Limited Employees to Engen Petroleum Zambia Limited with effect from 1St April, 2011. This move is aimed at enhancing efficiencies within the organization and thereby ensuring the sustainability of the business. As indicated during the consultation sessions your current terms and conditions of employment with Engen Marketing J6 Limited will not change as a result of the proposed transfer. Your current accrued benefits will be transferred tc- Engen Petroleum Zambia Limited. Accordingly we would like to advise you that with effect from 1St April, 2011 you will be an employee of Engen Petroleum Zambia Limited. The Company would like to take this opportunity and thank you for your valuable input during the consultation sessions and looking forward to your continued positive contribution to the business. Kindly indicate your acceptance of the above by completing the section below and return it in person, no later than 11th March 2011 to dedicated mailbox located in the reception of Engen Petroleum head office." 2.6 These letters had an acceptance provision at the bottom where the Respondents signed. They were accompanied by a "consent form to transfer the contract of employment", which the Respondents also signed. The said consent forms were couched in the following terms: "I (name of employee) NRC No. (stated ) hereby make declaration as follows: 1. That my current employer Engen Marketing Limited employment contract and conditions of service is being transferred and consolidated into Engen Petroleum Limited with effect 13t April,2011. 2. My Designation shall remain unchanged. 3. That the transfer of my contract and conditions of service has been discussed with me by my Representative of the National Union of Transport and Allied workers and/or Management. 4. I acknowledge that Engen Petroleum Limited has agreed to retain my services on terms and conditions no less J7 favourable than those under which I am presently employed. 5. That I have accepted the position offered to me in terms of subject to the conditions which have shown to me. 6. I acknowledge that my accrued benefits for years served under Engen Marketing Limited (formerly known as Chevron Zambia Limited) will be deemed to continue as provided for in my contract and conditions of service with Engen Petroleum Zambia Limited. 7. I further acknowledge that I have neither been induced nor compelled to complete this contract by any representative whatsoever and I confirm that I entered this contract of my own free will without duress or coercion." The 1st Respondent's job title was thereafter changed to HSEQ Manager, while the 2nd Respondent's job title continued to be Retail Manager. 2.7 On 22nd March, 2012, the Human Resource Coordinator sent an email to former Chevron employees requesting them to collect copies of the consent form to transfer to the Engen Petroleum Pension Trust Fund and copies of the 'revised conditions of service'. The consent forms, which were signed by the Respondents, were in the following format: "CONSENT FORM: TRANSFER TO ENGEN PETROLEUM PENSION TRUST FUND TITLE: (cid:9) SURNAME: (cid:9) FIRST NAMES: (cid:9) COMPANY: (cid:9) Mr. (name stated) (name stated) Engen Petroleum Zambia Limited. J8 SITE: (cid:9) Lusaka EMPLOYEE NUMBER: (cid:9) (stated) DATE OF BIRTH: (cid:9) I. D. NUMBER: (cid:9) (stated) (stated) I, with details above, do hereby declare as follows: 1. That with effect from 31st March 2012, I will join the Engen Petroleum Fund. 2. My current accrued benefit provision with Engen Petroleum Zambia Limited amounting to (sum stated) will be transferred to the Engen Petroleum Pension Fund. 3. My current employment contract and conditions of service will be revised and consolidated into Engen Petroleum Zambia Limited with effect 31st March 2012. 4. I declare that I fully understand all issues surrounding this transfer and the implication thereon having discussed them with my employer Engen Petroleum Zambia and the Fund Managers African Life Financial Services Limited. 5. I further acknowledge that I have neither been induced nor compelled to complete this contract by any representation whatsoever and I confirm that I entered this contract of my own free will without duress or coercion of any kind." 2.8 The revised conditions of service made no mention of the newly introduced contributory pension scheme or that Clause 19.2 of the Chevron conditions had been replaced. However, the revised conditions of service replaced Clause 21 which contained a provision on redundancy and introduced Clause 18 which provided as follows: "18. REDUNDANCY As per statutory provision." J9 We have reproduced the provisions of the replaced clause 21 in paragraph 2.2 above. 2.9 On 26th March, 2012, the 1st Respondent reacted to the revised conditions of service by sending an email to the Human Resource Coordinator commenting on some of the clauses in the proposed revised conditions. He, however, did not comment on Clause 18 which provided for redundancy. 2.10 On 15th February, 2013, the 1st and 2nd Respondents were confirmed in their positions as HSEQ Manager and Retail Manager respectively. In the confirmation letters, the Appellant's Managing Director advised the Respondents that their terms and conditions of employment would remain unchanged. 2.11 On 6th December, 2013, the Appellant invited its employees to apply for a voluntary severance package on condition that upon the employment being terminated by way of redundancy, the employees would be entitled to at least one month's notice, and redundancy benefits of not less than two months basic pay for each completed year of service. The Respc ndents J10 expressed interest and applied to be considered for redundancy. The Appellant's General Manager then informed them that they would be paid redundancy benefits in accordance with the provisions of the EMPLOYMENT ACT; being two months' basic pay for each completed year of service together with the value of any outstanding leave pay. 2.12 The Respondents were unhappy with the Appellant's proposed redundancy package. The 1st Respondent reacted by arguing that Clause 21 of the Chevron conditions was still subsisting and he was, therefore, entitled to be paid a redundancy package of not less than five months' salary for each completed year of service, inclusive of perquisites. That if he would not be paid accordingly on the last day of duty, the Appellant would be obliged to continue paying his salary until payment of all his redundancy benefits. 2.13 The Appellant, however, paid the Respondents redundancy packages as it had earlier advised; that is, two months basic pay for each completed year of service together with leave pay. What followed was an exchange of correspondence between Jil the parties' advocates but no settlement was reached. To resolve the impasse, the Respondents escalated the dispute to the lower Court, through a notice of complaint filed on 29th April, 2014. They sought the following reliefs: (a) A declaration that the Respondents were under-paid on their redundancy benefits, in that they ought to have been paid in accordance with the prevailing conditions of service enjoyed by the Complainants at the time of their exit, which is not less than five months (salary) for each year of service and not the two months for each year of service as calculated by the Respondent company; (b) An order for the re-calculation of the redundancy packages in accordance with the prevailing conditions of service for the Respondents at the time of their exit , i.e. not less than five (5) months for each year of service together with allowances payable at the time; (c) An order for the payment of the difference in the amounts underpaid, i.e. the allowances not paid on the two(2) months of each year served so far paid, and payment of not less than the three months for each year served not paid with all allowances included; (d) Payment of all salary arrears for the months from the time the Respondents were declared redundant to the time of settlement of the full redundancy packages in line with Clause 21.3 of the conditions of service as enjoyed by the Respondents; (e) Interest on all amounts payable; (f) Costs; and (g) Any other relief the court may deem fit in the circumstances. 2.14 On 26th June, 2014, the Appellant filed an answer disputing the Respondents' claim. It stated that at the time when the Respondents left employment, their terms and conditions of service were governed by the revised conditions of 2012 which J12 they had consented to. According to the Appellant, the revised conditions of service came into force when the Respondents and other employees signed the 'Consent Form: Transfer to Engen Petroleum Pension Trust Fund'. That the Respondents were, accordingly, paid their dues in accordance with the said terms and conditions of employment which were applicable to them at the time of their separation from employment. That the Respondents were not, therefore, entitled to their claims. 3. EVIDENCE ADDUCED IN THE LOWER COURT 3.1 The 1st Respondent told the lower Court that upon being transferred to the Appellant, he found the Appellant operating a defined contributory pension scheme managed by African Life Assurance. That the Respondents consented to transfer from the Chevron non-contributory pension scheme to the defined contributory scheme after a lengthy consultation process which culminated in their signing of the "CONSENT FORM: TRANSFER TO ENGEN PETROLEUM PENSION TRUST FUND." That alter signing the said 'consent form', he continued to enjoy the rest of the Chevron conditions until his departure in 2014. He argued that the 'consent form' which J13 they signed was only in respect of the pension scheme and not the revised conditions of service. 3.2 The 1st Respondent testified that he came to see the proposed revised conditions of service when he was sent the 'consent form'. That affected employees were never given an opportunity to discuss the said conditions of service, but that he did make some comments on the conditions and in fact, told the Human Resource Coordinator that the revised conditions could not be effected in the proposed manner, but she never responded. In his view, the 'consent form' to transfer to the Engen contributory pension scheme had nothing to do with the revised conditions of service which ought to have come with a separate request for consent. 3.3 The 1st Respondent contended that the expression "as required by law" in Clause 21.1 of the Chevron conditions of service meant that the entitlement should not be outside the provisions of the law. That, in fact, there was no statutory provision which applied to the payment of redundancy benefits to a member of management. J14 3.4 The 2nd Respondent adopted the evidence of the 1',I Respondent in so far as it applied to him. He acknowledged having been given what he referred to as 'conditions of service in draft form' as well as the 'consent form'. He stated that when he was given the revised conditions, he did not take issue with them. He also denied that his conditions of service were revised. 3.5 To rebut the evidence of the Respondents, the Appellant solicited evidence from two witnesses, the first of who in was, Florence Nalavwe, the Human Resources Manager. She testified that consultative meetings were held between management and former Chevron employees over the transfer of their accrued pension benefits to the contributory pension scheme and the revision of the conditions of service. That at the end of the consultation process, the consent form and the revised conditions of service were given to the employees to enable them decide. She further testified that she received a query from the 1st Respondent regarding the revised conditions, but management J15 decided that he would remain on the Engen Marketing Limited conditions of service. According to this witness, the 1st Respondent later informed the Appellant that he wanted to move on and had accepted the revised conditions and that the 2nd Respondent accepted the revised conditions of service and never raised a query. 3.6 The Appellant's second witness was Shadreck Chirwa. He was a former Chevron employee together with the Respondents. It was his view, that when the former Chevron employees signed the 'consent form', the revised conditions of service as well as the transfer to the contributory pension scheme took effect. 4. EVALUATION OF THE EVIDENCE AND DECISION OF THE LOWER COURT 4.1 Upon considering the evidence which was before it and the submissions of the parties, the Court below formulated the issues that fell for its determination as follows: to determine which conditions of service were applicable to the Respondents at the time that they separated from the Appellant; and, whether their redundancy packages were correctly computed in line with the applicable conditions. J16 4.2 At the core of the contention between the parties, was the effect of the 'consent to transfer forms' which were signed by the Respondents. The Court looked at the terms of the 'consent to transfer' forms and found that its contents were clear. It took the view that the 'consent forms' signified the parties' desire to introduce and implement a contributory pension scheme in place of the non-contributory scheme under Clause 19.2 of the Chevron conditions of service. That through the consent forms, the Appellant had invited its employees to transfer to the contributory pension scheme and the contents of the document were aimed at achieving that purpose. 4.3 The Court found that paragraph 3 of the consent form, which provided that the "current contract and conditions of service would be revised and consolidated" into those of Engen Petroleum Zambia Limited with effect from the 31st March, 2014, was merely meant to convey the position that Clause 19.2 of the Chevron conditions would be revised or amended to replace the non-contributory pension scheme. That from the J17 clear language of the 'consent form,' the revised conditions of service were not the target of the document. 4.4 As to whether the parties reached an agreement regarding the revised conditions of service, the Court alluded to the position of the law on the formation or variation of a valid agreement; that there must be an offer and acceptance. It found that an offer was constituted when the Respondents were invited to collect copies of revised conditions, and the 1st Respondent's immediate reaction was that he wrote an email to the -luman Resource Manager questioning the computation of the amount of accrued benefits that were to be transferred to the new pension scheme. He did not get a satisfactory response and decided to take up the matter with senior management. The 1st Respondent again wrote to the Managing Director on 2nd April, 2012 and obtained a response on the same day, to the effect that the he (1st Respondent) was considered to have effectively withdrawn his consent and would thus be omitted from the new pension scheme. The Court noted that the matter was, however, later resolved and the 1st Respondent was reinstated to the pension scheme. J18 4.5 The Court also noted that on 26' March, 2012, the 1st Respondent sent an email to the Human Resource Manager in which he made comments on a number of clauses in the revised conditions of service but did not comment on the new redundancy provision as contained in Clause 18. It also observed that the 1st Respondent had referred to the revised conditions as 'proposed conditions'. That he never got a response to his comments until he wrote to the Managing Director on 31st October, 2013, requesting that the conditions of service be looked at again in order to come up with conditions which were 'reasonable to both parties'. Arising from this reaction by the 1st Respondent, the Court concluded that he (the 1st Respondent) could not be regarded as having given an unqualified acceptance to the revised conditions of service, having raised concerns over some of the clauses. 4.6 Though the 1st Respondent did not comment on clause 18 which related to redundancy, the lower Court was of the view that going by the tenor of the 1st Respondent's commentary, especially when he referred to the revised conditions as 'proposed', the Appellant should have been put on notice that Jig the he had not wholly accepted the revised conditions of service. That consequently, the Appellant should have exhaustively dealt with the issue rather than proceed on the purported understanding that the 1st Respondent had 'acquiesced' to the revised conditions. At the end of t'ie day, the Court below, concluded and found that the 1st Respondent did not accept the revised conditions of service. The Court held that the said conditions did not take effect, and reached the inescapable conclusion that the 1st Respondent continued to work under the Chevron conditions of service. 4.7 As to whether the 2nd Respondent accepted the revised conditions of service', the Court noted that after the 2'' Respondent collected the revised conditions of service, he continued to work, seemingly unaffected by its contents. That despite being fully aware of the contents, the 2nd Respondent never took issue with the revised conditions. The Court also found no evidence to suggest that the 2nd Respondent participated in making the comments contained in the I s' Respondent's email to the Human Resource Manager and later, to the Managing Director. It concluded that the 2r J20 Respondent accepted the revised conditions of service ind his continued silence amounted to acquiescence, as was lield in the case of NATIONAL MILLING COMPANY V GRACE SIMATAA AND OTHERS'. The Court consequently held that the 2nd Respondent's conditions of service were revised and upon separation, his redundancy package was to be computed in accordance with Clause 18 of the revised conditions of service. 4.8 The Court considered whether the Respondents were entitled to the recalculation of their redundancy benefits. The Court alluded to the law on redundancy in Zambia; which is that parties to an employment contract are free, to stipulate the terms under which they may separate by way of redundancy. That if an employee is a protected worker, then the Statutory Order under the MINIMUM WAGES AND CONDITIONS OF EMPLOYMENT ACT" applies. The Court further explained that where the employment contract is orally made, the terms of separation by way of redundancy are covered under Section 26B Part IV of the EMPLOYMENT ACT ). To buttress this point, the Court relied on our decisions in the case of J21 BARCLAYS BANK ZAMBIA PLC V ZAMBIA UNION OF FINANCIAL INSTITUTIONS AND ALLIED WORKERS2 and the case of CHILANGA CEMENT PLC V KASOTE SINGOGO3. It held that any attempts to incorporate the provisions of section 26B of the EMPLOYMENT ACT ), whether expressly or by implication, into a written contract of employment must be resisted as it is redundant and of no effect. 4.9 The Court further found, that the expression "as required by law" in Clause 21.1 of the Chevron conditions, was ambiguous. That the expression could mean "as stated by the law", which, in the context of conditions of service, could refer to the EMPLOYMENT ACT ) and the minimum wage statutes: That it could also mean 'not contrary to the law' or 'not unlawful' and could apply to a situation where the redundancy benefit includes a statement that the package shall not be subject to a deduction of income tax chargeable under the INCOME TAX ACV when tax is a requirement of the law. 4.10 To resolve the ambiguity, the Court, in the case in casu, invoked the contra profereritem doctrine; which states that J22 when interpreting written documents, ambiguities should be construed against the drafter. (cid:9) The Court found that the conditions of service in this case were drafted by Chevron Zambia Limited and the Appellant adopted them. It, therefore, held that since the clear intention of the employer under the Chevron conditions was to provide a redundancy benefit of not less than five months' salary for each year served, it was only fair that the 1st Respondent be entitled to that redundancy benefit as stipulated under Clause 21.1 of the Chevron conditions. 4.11 The Court further observed that it was not clear under clause 21 of the Chevron conditions of service whether the payment for redundancy benefits was to be calculated on the basic salary excluding allowances, or, on a salary inclusive of allowances. The Court was of the view that another ambiguity had been created in this regard and again adopted the contra preferrentum doctrine and construed the provisions of the clause against the draftei-. It consequently held that the 1st Respondent was entitled to the payment of five months' salary for each year served inclusive of allowances as definea in the J23 case of ZIMCO (IN LIQUIDATION), ZAMBIA PRIVATISATION AGENCY V MICHEAL MALISAWA AND OTHERS' where salary included fringe benefits. 4.12 The Court also held that Clause 18 of the revised corditions of service was redundant. It found that there was unanimity among the parties, that the expression 'as per statutory provision' contained in Clause 18 of the revised conditions of service referred to Section 26B of the EMPLOYMENT ACTa) and the minimum wage statutes but that these pieces of legislation did not apply to the Respondents. 4.13 Having found that Clause 18 of the revised conditions of service was redundant, the Court held that Clause 21 of the Chevron conditions was revived with respect to the 2nd Respondent. It, therefore, found that the 2nd Respondent was equally entitled to a redundancy benefit to be calculated under Clause 21 of the Chevron conditions for the entire period of service with the Appellant including his period of service under Chevron. The Court ultimately held that the Respondents were ontitled to a recalculation of their redundancy benefits at the rate of J24 five months' salaries for each year served, inclusive of allowances, for the entire employment period starting with Chevron Zambia Limited until the date of retrenchment, less the redundancy benefits already paid. 4.14 The lower Court refused to grant the Respondents' claim for wages from the date of separation until full settlement of the redundancy benefits as provided under Clause 21.3 of the Chevron conditions. It reasoned that there was no dispute that each Respondent was paid a redundancy payment which the Appellant deemed to be due to them at the time of separation. That the obvious intention of clause 21.3 providing for the continued payment of wages until the redundancy benefits were paid, was to ensure that the employee would not be deprived of means of subsistence while waiting for the payment of the redundancy package. That where a benefit is paid in circumstances such as obtaining in this case, ordering the continued payment of wages would be most unfair and amount to unjustly enriching the employees. That the Appellant, having paid what it regarded as each Respondents' redundancy package, could not be said to have rende'ed the J25 Respondents without any means for their subsistence. The Court thus dismissed the claim. 5. GROUNDS OF APPEAL AND CROSS-APPEAL 5 1 Both parties were not satisfied with the judgment of the lower Court. The Appellant has appealed to us against the decision while the Respondent has launched a cross-appeal. In its appeal, the Appellant has advanced five grounds, that: - 1. the Court below erred in law when it held that the Respondents are entitled to a recalculation of the redundancy benefits to be paid at the rate of five months salaries for each year served inclusive of allowances for the entire employment period; 2. the Court below erred in law and in fact when it held that any attempts to incorporate the provisions of Section 2613 of the Employment Act whether expressly or by implication into a written contract of employment must be resisted as it is redundant and of no effect; 3. the Court below erred in law and fact when it held that the phrase "current contract and conditions of service would be revised and consolidated in the Engen Petroleum Zambia with effect from 31st March 2014" was merely meant to convey the position that clause 19.2 of the Chevron conditions of service would be revised or amended to replace the non-contributory pension scheme; 4. the Court below erred in law and fact when it held that the 1st Respondent had rejected the revised conditions having made an earlier finding that the 1st Respondent did not specifically object to the clause dealing with redundancy; and, that 5. the Court below erred in law and fact when it held that the expression "as required by law" in clause 21.1 of the Chevron Conditions was ambiguous and invoked the principle of contra preferentum rule. J26 5.2 In their cross-appeal, the Respondents have advanced one ground of appeal, that: 1.) Having decided that the Respondents were entitled to the payment of five months' salaries for each year served including allowances, instead of the two months' salary only paid by the Appellant, the court below erred in law and in fact in refusing to Order the continued payment of wages until the payment of full redundancy benefits. Both parties filed written heads of argument in respect of the appeal and the cross-appeal, which they augmented with oral submissions at the hearing. We shall first deal with the Appellants' appeal before coming to the cross-appeal. 6. APPELLANT'S SUBMISSIONS IN SUPPORT OF THE APPEAL 6.1 In arguing the first ground of appeal, Mr. Kawana, the learned Counsel for the Appellant referred us to a portion of the lower Court's judgment on page J44, in which the Court allowed the claim for a recalculation of the redundancy benefits at the rate of five months salaries for each year served, including allowances, less the benefits that had already been paid. It was Counsel's submission that there was a revision of the Chevron conditions of service to Engen conditions. That the Respondents consented to the revised conditions or (cid:9) (cid:9) J27 acquiesced to them. That these conditions provided for two months pay per each year served and not the Chevron conditions. To support his contention, Counsel cited the case of MAAMBA COLLIERIES LTD v DAGLUS SIAKALONGU & OTHERS5, where we stated, inter alia, that:- "This Court's reasoning in the case of Professor Ram Copal (Dr) v Mopani Copper Mines Plc was that when computing terminal benefits of any employee, the existing conditions of service at the time of separation, have to be used for computing such benefits. In line with that thought, in the case before us, the existing conditions of service at the time of the Respondents' separation from Maamba Collieries Limited have to be used in computing their terminal benefits. Moreover, this Court in the case of Robbie Mumba and Others v ZPA and Consumers Buying Corporation has laid down the principle that in computing terminal benefits of an employee not all benefits enjoyed by an employee during his period of service must be integrated in the basic salary before computing that employee's terminal benefits except where the conditions of service state so." 6.2 In respect of the 2nd Respondent, Counsel pointed out that the Court below in fact found that he had acquiesced to the revised conditions but that notwithstanding, the Court went ahead to award him five months' pay under the Chevron conditions which were no longer applicable to him. According to Counsel, this was a contradiction and it defied logic as the effect of the Court's decision was that the 2nd Respondnt was working under two sets of conditions of service. J28 6.3 Mr. Kawana argued that the 21 Respondent accep-ted the revised conditions of service when he signed the consent forms and as such, he was not entitled to the redundancy benefits under the Chevron conditions which had ceased to exist. In his view, it is trite that where an agreement has been reduced to writing and has been signed, the party who signed it will be bound by the terms of the written agreement whether he has read them or is ignorant of their precise legal effort. 6.4 Mr. Kawana further submitted that under Clause 18 of the revised conditions of service, the Respondents were entitled to be paid redundancy packages of two months' salary, minus allowances, for each year served, in accordance with the law. That the Respondents were aware, when the Appellant offered them voluntary separation packages, that their redundancy package would be not be less than two months' pay for every year served. That, accordingly, the Respondents were paid their redundancy packages in full, in accordance with the revised conditions of service which were applicable to them at the date of their separation from employment. He submitted that these redundancy packages were not inclusive of J29 allowances as there was no such provision in the revised conditions. 6.5 In support of the second ground of appeal, Counsel argued that the lower Court's finding, that Section 26B of the EMPLOYMENT ACT' cannot be incorporated into a written contract expressly or impliedly; is of no effect and is wrong at law. According to Counsel, it is trite that persons with full capacity to contract are at liberty to contract and incorporate terms in their contract as they please, provided that the terms are not illegal or against public policy. This, in his view, entails that parties can decide to incorporate statutory provisicns into their contracts without them being applicable as a question of law, but contract. To buttress his argument, he referred us to the case of COLGATE PALMOLIVE (Z) INC V CHUKA AND OTHERS', where it was stated that: "...if there is one thing more than another which pub1i policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by Courts of justice." 6.6 The learned Counsel for the Appellant contended that Clause 18 of the revised conditions provided that the redundancy J30 package was to be paid as per statutory provision. He argued that the Appellant merely adopted the statutory positi n into the conditions of service and this effectively meant that the prevailing redundancy pay under the law for the time being was the one that would be applicable. He further stated that the Appellant adopted the position of the Minimum Wages and Conditions of Service Order which provides for two months' salary per each year served. 6.7 Mr. Kawana argued the third and fourth grounds of appeal together. The gist of his submissions under the two grounds was that this is a proper case for this Court to interfere with findings of fact because the Court below did not analyze the evidence before it, and, as such, the findings that it made were not supported by the evidence on record. 6.8 Counsel submitted that the Court below misapprehended the facts when, in relation to the consent form, it found as ollows:- follows:- "Our view of paragraph 3 which stated that the 'current "Our contract and conditions of service would be revised and consolidated" into the Engen Petroleum Zambia Limited with effect from the 31st March, 2014 was merely meant to convey the position that Clause 19.2 of the Chevron conditions of J31 service would be revised or amended to replace the non- contributory pension scheme." 6.9 Counsel submitted that this Court has laid out princiles on which it can interfere with the findings of fact of a trial court. In this respect, Counsel referred us to the often cited case of WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT LIMITED 7, in which we held that an appellate Court will only reverse findings of fact made by a trial Court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or UOfl a misapprehension of facts. 6.10 Mr. Kawana argued that the finding by the Court below that the consent form merely revised Clause 19.2 of the Chevron conditions, cannot be supported. That the consent form and the email from the Human Resource Manager informed the Respondents of both the revised conditions of service, and the pension scheme. That, consequently, the finding by the lower Court that the consent form only applied to the transfe: to the pension scheme was a misapprehension of the evidence before J32 it. He contended that had the Appellant meant to only revise Clause 19.2, it would have clearly said so in the consent form. 6.11 Mr. Kawana further submitted, relying on the case of HOLMES LIMITED V BUILD WELL CONSTRUCTION COMPANY LIMITED9 that, where the parties have embodied the terms of their contract in a written document, the aeneral rule is that extrinsic evidence is not admissible to add, vary or subtract from the terms of the written contract. He also cited paragraph 12-096 by the learned authors of CHITTY ON CONTRACTS' who state as follows: "Indeed, in 1897, Lord Morris accepted that 'parole 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'." 6.12 According to Counsel, the finding of the Court belcw was aimed at importing an interpretation of the consent form that the parties did not agree upon. To support his argument further, Counsel found solace in the words of Lord Campbell in the case of RE WILLIAM PORTER AND CO, LTD 10 a hen he said: "The doctrine will apply which is to be found, I believe, in the laws of all civilized nations, that if a man, either by words or J33 by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent.., he cannot question the legality of the act he has so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct." 6.13 In the alternative, Mr. Kawana submitted that the Respondents should be deemed to have acquiesced to the new conditions of service because they had continued to work with the full knowledge that their conditions had been revised. In support of this argument, Counsel relied on the case of NATIONAL MILLING COMPANY LIMITED V GRACE SIMATAA AND OTHERS'; and also the case of MEAMUI KONGWA V ZAMBIA NATIONAL COMMERCIAL BANK LTD", in which we held that: "where an employee is aware that her conditions of service have been varied without her consent but she continues in employment, she is deemed to have acquiesced to the variation of the contract." Counsel urged us to overturn the findings of the Court below and hold that the Respondents received the correct redundancy benefits. 6.14 With regard to the fifth ground of appeal, it was Ccunsel's contention that the Court below erred in interpreting Clause J34 21.1 of the Chevron conditions, when it held that the expression "as required by law" was ambiguous and invoked the principle of contra proferentem rule against the Appellant. To this effect, Counsel referred to a portion of our judgment in the case of INDO ZAMBIA BANK LIMITED v MUSHAUKWA MUHANGA12, in which we said: "We did hold, in the case of Mazoka and Others v Mwanawasa and others (11), that: 'it is only if there is ambiguity in the natural meaning of the words and the intention cannot be ascertained from the words used by the legislature, that recourse can be had to other principles of interpretation'." Counsel argued that the contra preferentem principle should only be invoked in instances of ambiguity. He urged us not to uphold the decision of the lower Court to invoke this principle against the Appellant because there was no ambiguity in Clause 21.1. According to Counsel, clause 2 1. 1 merely directs the parties to the law itself, which allowed parties to draft their own terms or incorporate provisions of the law. It was his further argument that the provisions of the law create no ambiguity as the intention of the legislature to provide for redundancy benefits of two months' pay per year served, is clear. Counsel submitted that Clause 21 of the Chevron J35 conditions of service did not apply to the Respondents. That the applicable provision was Clause 18 of the revised conditions. Finally, he urged us to uphold this appeal with costs. 7. THE RESPONDENTS' SUBMISSIONS AGAINST THE APPEAL 7.1 (cid:9) In response to the first ground of appeal, Mr. Lisimba, the learned Counsel for the Respondents, disputed that there was a revision of the Respondents' conditions of service and that the Respondents consented to the revised conditions, as there was no such evidence on record. The gravamen of his submission was that the Respondents only consented to the transfer of their non-contributory pension scheme, and that thereafter, the funds which had accrued to them were transferred to the Engen Defined Pension Scheme. He contended that by implication, Clause 19.2 of the Chevron conditions ceased to apply by consent of the parties. That it was preposterous for the Appellant to state that the consent form which was signed by the Respondents effectively changed all the conditions of service. J36 7.2 Mr. Lisimba further submitted that the purported revised conditions which the Appellant attempted to sneak in were inferior, and would have disadvantaged the Respondents. To support his submission, Counsel referred us to the case of ATTORNEY GENERAL V NACHIZI PHIRI AND 10 OTHERS1311 in which we stated that:- "In our view the respondent should not be disadvantaged by subjecting them to a term and condition which did not exist in 1996; but which was created in the 2000 after they had rendered more than 10 years' service were about to exercise their option of separation. Having worked for so long, the Respondents were entitled to bear legitimate expectations of terminal benefits under the 1996 conditions. The ex gratia payment was within their contemplation and was, therefore, an accrued right." 7.3 Counsel supported the decision of the lower Ccurt to incorporate allowances into the basic salary for purp ses of calculating terminal benefits. In his view, the lower Court properly applied the principle in the case of ZIMCO (IN LIQUIDATION), ZAMBIA PRIVATIZATION AGENCY V MICHEAL MALISAWA & OTHERS4, where the term 'salary' was defined to include allowances and other fringe benefits for purposes of calculating terminal benefits. 7.4 (cid:9) Mr. Lisimba supported the second ground of appeal only to the J37 extent that there is no bar to parties adopting statutory provisions into their contract. He, however, argued fiat the Court below erred in refusing to accept that the Appellant's inability to pay the Respondents redundancy packages triggered the payment of monthly salaries until full payment of redundancy packages. He submitted that the parties in this case adopted Section 26B of the EMPLOYMENT ACT ) ::n their conditions of service, to the extent that where the Appellant was unable to pay redundancy benefits on the last day of duty, the Appellant would continue to pay the Respondents full wages until the redundancy benefits were paid in full. 7.5 Mr. Lisimba further submitted that the Appellant misunderstood the position of the Court below regarding the incorporation of statutory provisions. According to Counsel, the Court guided that parties cannot just have a blanket clause stating "as per statutory provisions", but should specifically provide what the conditions actually entail. He supported the decision of the lower Court when it held that the Minimum Wages and Conditions of Service Order were not J38 applicable to this case. In his view, it was wrong or the Appellant to argue that the Minimum Wages Order applied to the Respondents as a matter of contract, in that there was no consent from the Respondents to alter the Chevron corditions of service to incorporate the Minimum Wages and Conditions of Service Order. He urged us to dismiss the second ground. 7.6 In response to the third ground of appeal, Mr. Lisimba submitted that the Court below thoroughly examined the 'consent to transfer form' and arrived at the inescapable conclusion that the document, 'clearly and unambiguously', referred to the transfer of the contributory pension scheme, and that all its contents were addressed in achieving that purpose. He contended that the principle of ejusdem generis applied in this regard. To elucidate on the meaning of this principle, Counsel referred us to BLACK'S LAW DICTIONARY which states that: "the 'ejusdem generis rule' is that where the general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned." J39 7.7 Counsel submitted that the authorities cited by the Açpellarit in this regard, including the case of WILSON MASAUS() ZULU V AVONDALE HOUSING PROJECT' did not aid the Appellant's case in that that there was no evidence add-iced to show that the consent form addressed any other subject matter other than the consent to transfer the Engen Petroleum Pension Trust funds. That by reading into the consent form, that it had effectively altered all the conditions of serv:.ce, the Appellant had totally misapprehended the facts and gone on a garden path to imagine all manner of interpretation of the consent form. He urged us to also dismiss the third ground of appeal for lack of merit. 7.8 In response to the fourth ground of appeal, Mr. Lisimba supported the finding of the Court below, that he 1st Respondent had rejected the revised conditions of service. He submitted that the Court, to an extent, invoked its powers under Section 85(6) of the Industrial and Labour Relations Act to treat the 2ndRespondent, who was similarly circumstanced in like manner as the 1st Respondent. That the Court having held, firstly that the consent form to transfer Pension Fund did J40 not amount to altering or consenting to alter the wholc terms and conditions of employment, and secondly, that clause 18 in the proposed 'new conditions' was redundant, it was only open to the Court to hold that clause 21 of the existing valid conditions was applicable to the 2nd Respondent so I hat he would also be entitled to redundancy benefits for the entire period of service, including that under Chevron on th same terms as the 1st Respondent. He maintained that the signing of the consent form did not amount to consenting to the revised conditions of service which were held by the Court below to be unclear. Relying on the case of ZAMBIA DAILY MAIL LIMITED V GREVACIOUS MAYENGA, CUTHBERT MUTALE AND LUKA DLAMINI'4, and the case of ATTORNEY GENERAL V NACHIZI PHIRI AND 10 OTHERS", Counsel spiritedly argued that conditions service can only be altered with the express consent of the employee and acquiescence cannot be implied from conduct. Counsel submitted that the two cases he had cited overturned the case of NATIONAL MILLING J41 COMPANY V GRACE SIMATAA AND OTHERS' as regards the principle of acquiescence. 7.9 On the fifth and last ground of appeal, learned Counsel submitted that the court below was on firm ground when it held that the expression "as required by law", in Clause 21.2 was ambiguous, as it could either mean "as stated by 'aw" or "not contrary to the law". He also submitted that clause 18 of the purported 'new conditions' did not apply to the Respondents and did not help in clarifying the phrase. In his view, the Court below properly applied the rule in verba charterum fortuis accipuintur contra proferentem doctrine, which states that in interpreting written documents, ambiguities are to be construed against the drafter. He submitted that the conditions of service in this case were drafted by the Appellant and the Court below held that the expression "as required by law" in Clause 21, was ambiguous. He urged us to dismiss the appeal. 8. CONSIDERATION OF THE APPEAL BY THIS COURT 8.1 We have considered the Judgment of the Court below, the submissions of Counsel and the issues raised in this appeal. J42 We are indebted to learned Counsel for their industrious submissions. We propose to deal with the first, third and fourth grounds of appeal together, as they are inter related and are centred on a common theme. We shall then address the second and fifth grounds of appeal separately. 8.2 The common thread that runs through the first, third and fourth grounds of appeal is whether the Respcndents consented to the alteration of their conditions of service. It is trite that conditions of service already being enjoyed by employees cannot be altered to their disadvantage without their consent. Like any other contract, a contract of employment can only be altered by mutual agreement. As the learned authors of CHITTY ON CONTRACTS(), aptly put it "Variation. The parties to a contract may effect a variation of the contract by modifying or altering its terms by mutual agreement... A mere unilateral notification by one party to the other, in the absence of any agreement, cannot constitute a variation of a contract." 8.3 In resolving the issue as to whether parties reached mutual agreement to vary the terms of the contract, we have found that the words of Lord Denning, in the case of BUTLER J43 MACHINE TOOLS LIMITED V EX-CELL-O CORPORATION (ENGLAND) LIMITED23, provide useful counsel, that: "The better way is to look at all the documents passing between the parties and glean from them, or from the conduct of the parties, whether they have reached agreement on all material points..." 8.4 Plucking from Lord Denning's nugget of wisdom, we have considered all the documents that passed between the parties in this case, as well as the conduct of the parties SO as to ascertain whether they reached mutual agreement to alter the conditions of service. The Respondents' employment history shows that their contracts were transferred from Chevron Zambia Limited to Engen Marketing Limited; later from Engen Marketing Limited to Engen Petroleum Zambia Limited. In the first transfer, it was stated that: 'Engen will maintain your current terms and condition of employment in line with the change of share ownership agreement.' In the transfer letter to Engen Petroleum Zambia Limited (the Appellant herein) it was stated inter alia that: "As indicated during the consultation sessions your current terms and conditions of employment with Engen Marketing Limited will not change as a result of the proposed transfer. Your current accrued benefit will be transferred to Engen Petroleum Zambia limited" (underlining for emphasis ours) J44 Then in March 2012, there came the 'Consent Form: Transfer to Engen Petroleum Pension Trust'. The Respondents ap Dended. their signatures to the Form. It contained clause 3 which stated that: "My current employment contract and conditions of service will be revised and consolidated into Engen Petroleum Zambia Limited with effect from 31st March 2012." The Appellant has forcefully argued that pursuant to this Consent Form, the Respondents' conditions of service were revised and the Respondents' consented to such revision or acquiesced. That it is the revised conditions of service which in clause 18 provided for two months pay for each year served by simply stating 'as per statutory provision'. (cid:9) The Respondents, on the other hand, contend that ther is no evidence to show that there was a revision of the conditions of service; that the Respondents only consented to the transfer of their non contributory pension scheme. 8.5 Firstly, the document, which we have reproduced in paragraph 2.7 above describes itself as the 'CONSENT FORM: TRI NSFER TO ENGEN PETROLEUM TRUST FUND.' Secondly, it slates in clause 3 that the " (cid:9) contract of employment and conditions of J45 service will be revised...' (emphasis by underlining ours). This means that the revision was going to be done later. It :bllows, therefore, that the CONSENT FORM did not, of itself, revise the contract of employment and the conditions of service. It is clear to us that the CONSENT FORM was intended to transfer the Respondents' non-contributory pension scheme under Clause 19.2 of the Chevron conditions to the Engen Petroleum Pension Fund. 8.6 We cannot, therefore, fault the lower Court when it held that all the contents of the 'consent form' were aimed at achieving the transfer of the Trust Fund. In our view, the Court was on firm ground when it held that paragraph 3 of the consent form, which provided that the ". .. current contract and conditions of service would be revised and consolidated in the Engen Petroleum Zambia with effect from 31st March 2014", was merely meant to convey the position that clause 19.2 of the Chevron conditions would be revised to replace the non- contributory pension scheme. 8.7 We have also considered the Appellant's alternative argument that the Respondents should be deemed to have acquiesced to J46 the revised conditions. The evidence on record shows that the 11;1 Respondent made comments on a number of clauses in the revised conditions of service although he did not specifically comment on Clause 18 which contained the provision on redundancy. We have further noted that the 1st Respondent referred to the revised conditions as 'proposed new conditions', which in our view, indicates that the 1st Respondent treated them as such. On this aspect, the Court below stated at page J38 as follows: "Going by the tenor of the 1st Complainant's commentary, however, especially in the last bullet point of the email in which he calls the revised conditions of service as "the the proposed new conditions", our position is that (cid:9) Respondent should have been put on notice that the 13t Complainant had not wholly accepted the revised conditions of service. The Respondent should have dealt with the issue exhaustively rather than proceed on the purported understanding that the 1st Complainant had "acquiesced" to the implementation of the revised conditions of service. We find accordingly that the 1t Complainant did not accept the revised conditions of service when he raised all those concerns in his commentary." 8.8 We support this finding by the lower Court. The fact that the Appellant did not bother to address the 1st Respondent's concerns shows that the 11;1 Respondent did not acquiesce or consent to the revised conditions. That being the case, the Chevron conditions of service continued to apply to the 1st J47 Respondent in that the Respondent's transfer letters to Engen Petroleum Zambia Limited categorically stated that his conditions of service would not change as a result of the transfer. In our view, the Court below properly directed itself when it ordered that the 1st Respondent was entitled to the recalculation of his redundancy benefits in accordance with the said conditions. 8.9 (cid:9) Also, in the acceptance provision to the transfer of the contract of employment, the employee declared, in paragraph 4 that:- "4. I acknowledge that Engen Petroleum Limited has agreed to retain my services on terms and -conditions not less favourable than those under which I am presently employed." Clearly, accepting the Appellant's contention would impose less favourable conditions. The Appellant would pay two months salary for each year served as opposed to five (5) months pay for each year served as provided under the Chevron conditions of service. This would negate the intention of the parties when the Respondents were being transferred to the other entities. (cid:9) J48 8.10 With regard to the 2nd Respondent, the evidence on record shows that he received the revised conditions of service, but never took issue with them and continued working. The Court below deduced, from this conduct, that the 2d Respondent had accepted the revised conditions and his continued silence amounted to acquiescence. The Court found on page J40 of the judgment, ' (cid:9) that for the 2nd claimant, his conditions of service were revised as stated by the Respondent and that upon separation, his redundancy package was to be computed in accordance with the revised condition of service...' 8.11 In the case of ATTORNEY GENERAL V NACHIZI PHIRI AND 10 OTHERS '3, we directed our minds to the same issue when we stated:- "...conditions of service already enjoyed by the employees cannot be altered to their disadvantage without their consent... We must add that conditions of service for any kind of employment can be amended, but this must only be with clear and express consent of the employee. It is our view that express consent of an employee must always be a major pillar in the principles of employment law, in the safeguarding of the terms of an employee's contract of employment already being enjoyed... While we agree that the presence or absence of emdoyees' consent to downgraded conditions of service must be considered as a matter of fact, to be established in the circumstances of each particular case; and that in appropriate cases, consent by conduct may be considered sufficient....." However, in the case of ZAMBIA DAILY MAIL LIMITED V GREVACIOUS MAYENGA, CUTHBERT MUTALE AND LUKA DLAMINI'4, we guided that acquiescence should be adopted with caution. It is our view, on the facts of this case, that the Court below should have proceeded with caution before finding that the 2nd Respondent acquiesced to the change in conditions of service more so that the conditions of service with regard to redundancy were being downgraded. 8.12 However, the 2nd Respondent was not prejudiced in any way by the finding of acquiescence because the lower Court ultimately found that Clause 18 of the revised conditions of service, which contained a provision on redundancy, was itself redundant. This left only Clause 21 of the Chevron conditions of service as the only provision providing for redundancy. Consequently, the Court ordered that the 2nd Respondent was also entitled to the recalculation of his redundancy benefits. 8.13 In our view, however, the findings by the Court below which we have upheld are amply supported by the evidence on record. We have stated, in a plethora of authorities, including iso the case of WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT LIMITED 7,that an appellate Court will only reverse findings of fact made by a trial Court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant •evidence or upon a misapprehension of facts. Apart from viva voce evidence, the Court below had before it various documents which were produced by the parties on the basis of which it made its findings. We do not find that the Court misdirected itself. The first, third and fourth grounds of appeal therefore must fail. 8.14 The second ground of appeal raises the question as to whether parties to a written contract of employment can incorporate the provisions of Section 26B of the EMPLOYMENT ACT into their contract. On redundancy, the Appellant introduced clause 18 in the revised conditions of service which simply read: 'as per statutory provision.' It would appear that the intention of the Appellant, through this clause, was to incorporate Section 26B of the EMPLOYMENT AC il:ito the revised conditions. J51 8.15 It is a common law principle that patties of full age with competent understanding have the liberty to contract and their contracts are enforced by courts of law. Freedom of contract is one of the fundamental principles of the law of contract. We endorsed these principles in the case of COLGATE PALMOLIVE (Z) INC. V CHUA AND OTHERS" 8.16 However, it is trite that the freedom to contract is not absolute, but subject to certain qualifications. As the learned authors of CHITTY ON CONTRACTS'", point in paragraph 1- 014 of their works: "1-014 QUALIFICATIONS ON FREEDOM OF CONTRACT. However, the principle of freedom of contract is subject to many qualifications in the modern law. These qualifications may affect a person's decision as to whether and with whom to contract; the parties' choice as to the terms on which their contractual relations are to be governed and more generally as to their legal consequences. Furthermore, even where it does not bear directly on the mutual rights and duties of the contracting parties, modern legislation has also regulated the contractual environment in which the parties to some type of contract negotiate, conclude and perform their contracts." 8.17 We have had occasion to pronounce ourselves on Section 26B of the EMPLOYMENT AC'P, that it only applies to oral contracts of employment. One such decision was the case of BARCLAYS BANK ZAMBIA PLC V ZAMBIA UNION OF J52 FINANCIAL INSTITUTION AND ALLIED WORKER32, we explained that: "...section 26(B) of the Employment Act as amended by Act No. 15 of 1997, is found in part IV of the Act. Section 16 of the Act provides as follows:. 'Section 16: the provisions of this part shall apply to oral contracts. Section 26B of the Act contains detailed provisions on termination by redundancy. In enacting this provision Parliament intended to safeguard the interests of employees who were employed on oral contracts of service which by nature would not have any provision for termination of employment by way of redundancy." 8.18 While parties are at liberty to expressly state or uplift the provision of Section 26B and incorporate them into their written contract, it is our view that simply •stating as per statutory provision" does not incorporate Section 26B of the EMPLOYMENT ACT into a contract. The phrase 'as per statutory provision' does not even state S which Statutory provision it is referring to. It would appear that the Appellant presumes that the phrase, 'as per statutory provision' refers to Section 26B of the EMPLOYMENT ACV) simply because that is the provision which deals with redundancy in the EMPLOYMENT ACT(a). 8.19 As we have stated above, Section 26B of the EMPLOYMENT ACT') only applies to oral contracts. Short of upliThng the J53 provisions of this Section or expressly stating its adoption in a written contract, there is no basis on which to extend the provisions of the Section to the parties in this case who were governed by a written contract. 8.20 There is no statutory provision which provides for redundancy to employees serving under written contracts. This has been left to the parties to agree in the exercise of their freedom to contract. In our view, the term 'as per statutory provision' is speculative and refers to a none existent law. 8.21 Consequently, we cannot, on the facts of this case, fault the lower Court, when it held that any attempt to incorporate the provisions of Section 26B of the EMPLOYMENT ACT' into a written contract of employment must be resisted, as it is redundant and of no effect. It is on that premise that the Court below was of the view that Clause 18 of the Conditions of Service could not be applied to the 2nd Respondent. We, therefore, also find no merit in the second ground of appeal. 8.22 Coming to the fifth and last ground of appeal, the bone of contention in this ground is whether the Court below erred when it held that the expression "as required by law" in clause J54 21.1 of the Chevron Conditions was ambiguous and applied the contra proferentem rule against the Appellant. We have considered the evidence and the submissions on the fifth ground of appeal. The clause in contention states as follows: "21. REDUNDANCY An employee whose contract of service has been termirated by reason of redundancy shall: 21.1 Be entitled to such redundancy payment as agreed between the employee and the company, but shall not be less than five (5) months per year of service as required by law." The clause refers to 'such redundancy payment as agreed between the employee and the - company'. meaning that the parties could agree on any formula for calculating redundancy benefits. Secondly, whatever redundancy payment is agreed upon, it should be 'not be less than five months per year of service as required by law'. (emphasis ours) The law which the parties had in mind in this respect is not stated. We cannot, again, fault the Court below when it held that the expression "as required by law" in Clause 21.1 is ambiguous. As the Court stated, the expression could mean "as stated by the law". It could also mean, "not contrary to the law" or "not unlawful". Clearly, this clause was badly drafted. Jss Contracts of employment are extremely important in labour relations in that they set out the rights and obligations of the parties. The need for clear and unambiguous provisions cannot be over emphasized. The employer, as a stronger party, and who is usually the drafter of the contract, must ensure that the employment contract is properly drafted containing provisions which are, clear and free from ambiguities. 8.23 Arising from what we have stated above, we agree with the lower Court that this was an appropriate case in which to invoke the contra proferentem rule. The rule is summarized by the learned authors of HALSBURY'S LAWS OF ENGLAND("), as follows: "CONSTRUCTION AGAINST THE ORIGINATOR; THE CONTRA PROFERENTEM RULE. Contra proferentum may refer to the rule that, in the event of any ambiguity, wording in a contract is to be construed against a party who seeks to rely on it in order to diminish or exclude his basic obligation, or any common law dut:, which arises apart from contract. It may also refer to the rule that wording is to be construed against the party who proposed it for inclusion in the contract. The latter is a rule of 'las resort' and can only apply if a document, properly interpreted, admits of doubts..." J56 The contra profererttem rule should only be applied to remove a doubt or ambiguity, where the issue cannot otherwise be resolved by application of ordinary principles of construction. In the case in casu, the issue of redundancy as provided for in the Appellant's conditions of service could not have been resolved using ordinary principles of construction. The clause on redundancy simply stated 'as per statutory provision' without naming the provision. The Court below was on firm ground when it invoked the contra proferentem doctrine to resolve the ambiguity. We find that the fifth ground of appeal also has no merit and it is accordingly dismissed. 8.24 Since all the five grounds of appeal have collapsed, we hereby dismiss this appeal for lack of merit. We now turn to the cross- appeal. 9. CROSS APPEAL BY THE RESPONDENTS 9.1 There is only one ground of appeal advanced by the Respondents in the cross appeal. We have reproduced the ground in paragraph 5.2 above. The Responderts are contending with the refusal by the lower Court to order the continued payment of their wages until the full paynent of their redundancy benefits. 10. THE RESPONDENTS' SUBMISSIONS IN SUPPORT OF THE CROSS-APPEAL 10.1 In support of the cross-appeal, Mr. Lisimba relied on Clause 21.3 of the Chevron conditions of service which provided that, where the Appellant was unable to pay redundancy benefits on the last day of duty of the employee, the Appellant should continue to pay the employee full wages until the redundancy benefits are paid. He submitted that the payment of redundancy benefits envisaged in this Clause is full payment and not partial payment. According to him, the finding of the Court below that the Respondents had means for, theft subsistence and were not entitled to payments under the Clause was bad at law. He stated that if that position were true at law, it would create a bad precedence where employers will be making partial redundancy payments and thereafter argue that their employees had means for their subsistence. 10.2 Mr. Lisimba further submitted that the fact that the Appellant wrongly applied conditions of service which were not isa applicable to the Respondents should not disadvantage them. He urged us to order the Appellant to pay the Respcndents salary arrears from the time that they were declared redundant until they are paid their full redundancy packages. 11. TRE APPELLANT'S SUBMISSIONS AGAINST THE CROSS- APPEAL 11.1 In response to the cross-appeal, Mr. Kawana stated that the questions for determination in the cross-appeal are whether the Respondents were entitled to the payment of salaries; and, whether it would amount to unjust enrichment to award them the salaries they were claiming. Counsel argued that the Respondents were not entitled to the payment of salaries under Clause 21.3 of the Chevron conditions because the said conditions were not applicable to them. He stated that the revised conditions of service were the ones applicable to the Respondents. 11.2 Mr. Kawana went on to submit that even in the event that Clause 21.3 of the Chevron conditions was found to be applicable to the Respondents, they would not be entitled to be paid salaries from their last day of duty because the J59 undisputed evidence on record was that they were pad their redundancy benefits. He stated that the Respondents' claim was for full payment of their redundancy benefits and not non- payment. That Clause 21.3 should be read to mean that the Appellant would only pay salaries if it was unable to pay redundancy benefits on their last day of duty. That the intention of the parties should be taken to be what is expressly stated in Clause 21.3. To support his argument, Counsel referred us to the case of INDO ZAMBIA BANK LIMITED V MUSHAUKWA MUHANGA112, where we held that: "Courts should be reluctant to accept that linguistic mistakes have been made unless it can be clearly shown that the parties did not have the intention ascribed to them." 11.3 Mr. Kawana submitted that the wording of Clause 21.3 cannot be extended to mean any more than what it states. That even in the event that the Appellant did not correctly compute the Respondent's redundancy benefits, the Respondents cannot rely on Clause 21.3 because it related to instances where the Appellant is unable to pay redundancy benefits. According Counsel, the intention behind the continued payment of salaries under Clause 21.3 is that where the Appellant is e J6o unable to pay an employee's redundancy benefits, the employee should have a means of subsistence before receiving the benefits. 11.4 Mr. Kawana further submitted that it would amount to unjust enrichment if the Respondents were awarded full salaries from the date of their last day of duty to the date of full payment of their redundancy benefits on the ground that the Respondents did not add any value or give any consideration to the Appellant from the time that their employment was terminated. To support his submission, Counsel cited a number of authorities including the case of CHOLA CHAMA V ZESCO LIMITED" where we held that during the period that an employee is on termination, there is no consideration to justify paying the employee and doing so would amount to unjust enrichment. Counsel also referred us to the case of KITWE CITY COUNCIL V. WILLIAM NG'UNI16 where we held that: "it is unlawful to award a salary or pension benefits., for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment." J61 Counsel urged us to dismiss the cross appeal with costs to the Appellant. 12. THE RESPONDENTS' REPLY TO THE APPELLANT'S SUBMISSIONS ON THE CROSS-APPEAL 12.1 In reply to Mr. Kawana's submissions, Mr. Lisimba stated that if this Court was to order payment of salaries from the time that the Respondents left employment until full settlement of their redundancy benefits, it would not amount to unjust enrichment. He argued that the Chevron conditions were the ones applicable to the Respondents and that the said conditions provided for a redundancy payment of not 1&;s than five months' salary per each year of service, but the Appellant was unable to pay and Clause 21.3 provided for the consequences of such inability. 12.2 Mr. Lisimba submitted that the 'contractual provisions' which the parties gave to themselves were clear, and the duty of the Court was merely to give effect to them and not to add or subtract anything. According to Counsel, to argue that the provisions were meant for subsistence of the affected employees would be to add terms to the contract. He J62 submitted that the decision in the case of INDO ZAMBIA BANK LIMITED V MUSHAUKWA MUHANGA12, which was cited by Counsel for the Appellant, in fact supported the Respondents' case. That the final holding in that case was that where linguistic mistakes appear in a document, they must be interpreted against the drafter. He stated that in this case, the Court below found that the Appellant was the drafter of the conditions of service and it could not benefit from its own mistakes. 12.3 Counsel further submitted that this case arises from a contractual relationship and can be distinguished from the cases cited by the Appellant in relation to unjust enrichment. He argued that this Court has held that the primary role of the court is to give efficacy to the terms and conditions of contract of employment. He cited the case of ROSEMARY NGORIMA AND 10 OTHERS V ZAMBIA CONSOLIDATED COPPER MINES 17, where we stated that in an employer-employee relationship, the parties are bound by whatever terms and conditions they set out for themselves. He argued that the payment of salaries in this case was an express term of the J63 contract between the parties. That the Respondents should, in any event, be awarded the costs of the cross-appeal. 13. CONSIDERATION OF CROSS-APPEAL BY THIS COURT 13.1 We have considered the evidence and the submiss-ions of Counsel on the cross-appeal. The question which we have to resolve in this cross-appeal is whether the Respondents are entitled to be paid wages from their last day of duty until the date when they will be paid their redundancy benefits in full. The Respondents' claim emanates from Clause 21.3 of the Chevron conditions which states that: "21.3 Where the Company is unable to pay the redundancy benefits on the last day of duty of the employee, the company shall continue to pay the employee full wages until the redundancy benefits are paid as required by law." 13.2 It is not in dispute that the Respondents were paid a redundancy package which the Appellant considered to be due to them at the time of separation. However the Respondents have argued that the payment of redundancy benefits envisaged under this clause is full payment and not partial payment. 13.3 We disagree with the Respondents and agree with the submission by Mr. Kawana on this point. A careful scrutiny of • 1 a J64 clause 21.3 shows that the obligation to continue the p;.yment of salaries and wages until payment of redundancy benefits only arises if the employer is unable to pay. In this case, the Appellant paid the Respondents on the basis of a provision which was found not to be applicable to the Respondents by the Court below. In our view, such a scenario cannot reasonably be construed to mean that the Appellant was unable to pay the Respondents as envisaged in Clause 21.3 of the revised conditions. The mere fact that the Respondents were found to have been underpaid after a court action, cannot entitle them to full wages in accordance with Clause 21.3 of the revised conditions. 13.4 We agree with the lower Court that the rationale behind the contractual provision for the continued payment of wages where an employer is unable to pay redundancy benefits on the date of separation is that the employee should not be deprived of means of subsistence while waiting for the payment of the redundancy package. We also agree with the Court below that where a benefit has been paid as in the circumstances of this case, to order continued payment of J65 wages would amount to unjustly enriching the employe:--s. We cannot, therefore, fault the lower Court for dismissing the Respondents' claim. We find no merit in the cross appe&l. 14. CONCLUSION Arising from the foregoing, the net result is that both the appeal and the cross-appeal are dismissed. We now come to the issue of costs. We have been compelled to address the issue of costs, because both parties have prayed for costs. The Court below awarded costs to the Respondents. In our view, this award was in disregard of the rules governing the award of costs in the IRC. The general, rule is that costs are awarded in the discretion of the Court. In matters decided in the Industrial Relations Division, however, Rule 44 (1) of the INDUSTRIAL AND LABOUR RELATIONS ACV), provides the circumstances in which the IRC may make an order for costs against a litigant. It provides that: "Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexations or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order in costs or expenses against him." V The effect of this rule is that the IRC can only make a: order for costs against a litigant if he/she has been guilty of unreasonable delay, or has taken improper, vexatious or unnecessary steps in the proceedings, or is guilty of other unreasonable conduct. We echoed this position in the case of AMIRAN LIMITED V ROBERT BONES20. We stated that: "With regard to costs, Rule 44 of the Industrial Relations Court Rules contained in the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia provides that in matters before the Industrial Relations Court, costs can only be awarded against a party if such party is guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct. With appeals that come from the Industrial Relations Court, we adopt the principle in that rule. In this case, the appeal was filed by the appellant-and it has succeeded. The respondent had no choice but to come and defend the appeal. In the course of this appeal, the respondent has not been guilty of any conduct that would warrant costs being ordered against him. Therefore we shall order that each party bear their own costs." In our recent decision in the case of ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED V MIRRIAM SHABWANGA & 5 OTHERS", we went further to explain the rationale behind Rule 44(1) of the INDUSTRIAL AND LABOUR RELATIONS ACT4 and said that the rule restricts the discretion of the IRC in the award of costs to instances specified in the Rule. We explained that the IRC was established as an Employment Tribunal, and the Rules were intended to guard against the abuse of the court 0. J67 process through unreasonable delays, unnecessary or vexatious applications while ensuring that genuine litigants are not discouraged from asserting their rights on account of cumbersome rules of evidence and litigation costs to which they could be condemned. In this case, we have not found any of the parties to be guilty of unreasonable delay; or taking improper, vexatious or unnecessary steps in the proceedings; or indeed guilty of other unreasonable conduct as stipulated in Rule 44(1) of the INDUSTRIAL AND LABOUR RELATIONS ACT". There was, therefore, no basis on which the Court below should have awarded costs to the Respondents. In the circumstances, we set aside the order of the Court below on costs. We direct that each party will bear its own costs both in this Court and in the Court below. I. C. Mambilima CHIEF JUSTICE M. MaMa SUPREME COURT JUDGE C- C_C • R. M. ClCaoma SUPREME COURT JUDGE