Esedi Chirwa and Ors v Development Bank of Zambia (APPEAL No. 48/2021) [2024] ZMCA 51 (21 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 4 8/ 202 1 HOLDEN AT LUSAKA (Civil Jurisdiction) ESEDI CHIRWA CHILAMBWE LWAO CHILOMBO MONTAH NY ANTANGA HELEN CHIBWE JALA HAPUNDA JOHN CHIBONGA ROBERT MALASHA AND 1 •t APPELLANT 2nd APPELLANT 3 rd APPELLANT 4th APPELLANT 5 th APPELLANT 6th APPELLANT 7 th APPELLANT DEVELOPMENT BANK OF ZAMBIA RESPONDENT CORAM: MAJULA, NGULUBE, AND BANDA-BOBO JJA On: 22 nd January, 2024 and 21st February, 2024. For the Appellants: Mr. J. C. Kalokoni of Messrs Kalokoni and Company For the Respondent: Mr. S. Mambwe of Messrs Mambwe Siwila and Lisimb a Advocates JUDGMENT BANDA-BOBO, JA, delivered the Judg me nt of the Court Cases referred to: 1. 2. Attorney General v Na hizi Phiri and 10 0th r 20 14 ZR Vol. 1, 302 Jacqu eline Chipasha Mutale and Stanbic ank z mbi Limited - Appeal No. 189 / 20 16 J1 , 3. 4 . 5 . 6. 7. 8. 9. 10. 11. 12. 13 . 14. Min is ter of Hom e Affairs, The Attorney General v Lee Ha ba sonde, (2007) Z. R. 20 7 Geoffrey Chumbw v I ith Mukata and Electoral Commission of Zambia (SCZ J udgm nt No. 10 of 201 5) H ey v Y nkee Traveler Res taurant ( 19 76) IRLR 35 Lubunda Ngala & Anothe r v An ti-Corruption Commission (20 18) ZMCC 3 Kitwe City Cou ncil v William Ng'uni (2005) ZR 57 Kabwe v B. P. Zambia Limited ( 1995- 1997) Z. R. 2 18 Peter Ng'andwe and Others and Zamox v Zambia Priva tization Agency (1 999) Z. R. 90 Simpson v Foxon( 1907) P 54 Printing and Numerical Registering Company v Simpson (1875) LR 19 EQ Colgate Palmolive (Z) Inc. v Abel Shemu Chuka and 110 Others (SCZ 18 1 of 2005) Zambia Telecommunications Company v Eva Banda (CAZ Appeal 2 of 2 01 7) Anderson Mwale, Buchisa Mwalongo Kola Odubote v Zambian Open University (2021/CCZ/00 1) Legislation and Other Works referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2 . Article 189 (2) of the Constitution Amendment Act No.2 of 20 16. 3. The Employment Code Act No. 3 of 2019 4. Winnie Sithole Mwenda and Chanda Chungu in their book "A comprehe s ive Guide to Employment Law in Zambia 1.0. INTRODUCTION 1.1 . This is an appeal agains t part of the J udgme t of Honou le J ustice Davies Mumba deliver d in the Indu tri 1 Rela ion Division of the High urt for Z mbia on 15 th October, 2021. J2 .. 2.0. BRIEF BACKGROUND 2.1. The b rief ba k r ound to this m tt r is that the Appellants comm n d thi action g in t t h e espondent on 18th Nov mb r, 2020 by way of Notice of Complaint claiming the following reliefs : I. A declaration that t he Bank's real reason for terminating the complaints contract of employment was redundancy and the voluntary separation scheme was a stratagem adopted by the Bank to disguise the implementation of the retrenchment programme to exclude the complainants from payment of the contractual redundancy package and therefore null and void; II. A declaration and order that the Banks imposition upon the complainants of a redundancy package of 2 and half month's pay for each year served amounted to a unilateral alteration of the retrench ment package of 48 months' lump sum p a yme nt and therefore null and void; III. A declaratory order that the complainants are entitled to the lump sum payment for the period they s erved on permanent and pension a b le emp loy1nent less what they were paid; IV. An Order for payment of interest on delayed pension contributions; J3 V. An Order for the re lease of title deed to their properties; VI. Damages for breach of m utual trust and confidence; VII. Damages for breach of contract; VIII. Damages for mental t orture; IX. A declaration and order that the complainants be deemed to have remained on payroll until the date of Jina l payment of their benefits; and x. Interest and costs . 2.2 . The Appellants were all former middle managers of the Respondent Bank who were employed on various dates and served on a permanent and pensionable basis. Between February and March 2017, the Bank of Zambia (BOZ) conducted an inspection on the Respondent Bank and this exposed a plethora of b r eaches of both the Banking Laws and Regulations governing the operations of banks in Zambia. The Respondent bank was directed by BoZ to formulate proper p olicies and strategies for the effective recapitalization of the Bank to improve on its financial position to avert the Banks total collap e. 2.3. As a result of the foregoing, an internal memorandum was sent to all employees who were on permanent and pensionable conditions of service and who wi hed to 1 ave the Respondent's employment by way of voluntary separation, to submit their J4 applica tions to the Managing Direct or. The applicant s all applied t o go on volun ary epara tion . However, after submitting and receiving t heir various p ack ages, the App llants were dis satisfi ed wi th various issues a s enu mer ated in the Notice of Complaint . 3 .0. DECISION OF THE LOWER COURT 3.1. The learned J udge, in th e J udgment delivered on 15th October ' 2021 fo und that the Appellant s were employed on a permanent and pensiona b le basis, and the a pplicable conditions of service were the DBZ Human Resource Policy Manual of 201 4 . He found that the BOZ con ducted an inspection of the operations of the Respondent Bank and found various financial irregularities and as a result the BOZ recommended corrective measures. 3 .2 . He found that t h ere wa s an intern al m emorandum by which all employees on permanent and pensiona b le conditions of s ervice who wished to leave the res pondent's employment by way of voluntary separation, were invited t o submit their applications to the Mana ging Direct or. Th e learned Judge found that in th e separation letters, it was clearly stated that the voluntary separa tion packa ge was to be calculated at two and h alf m on ths basic s a lary per each year s erved plus car maintenance JS allowance . That a ll t h e Ap pellants applied to go on voluntary separation, and signed the necessary d ocum ents. 4.0. THE APPEAL 4.1. The Appella n t s , dissatisfied with p art s of t h e Judgment have now appealed to t his Court on the following six groun d s: ( 1). The Learned trial Judge erred at law when he he ld that: " the Complainants cannot claim that the real reason for the termination of their employ ment was redundancy and cannot claim to be paid t hei r separation packages in accordance with their 2 014 Conditions of Service as the Respondent was relieved of the obligations under the 2014 Conditions of Service upon accepting the Complainants applications for voluntary separation thus denying the Appellants payment of 48 months lump sum payment as their redundancy package contrary to the evidence on record and the applicable law; (2). The tria l Judge erred in law by h o lding that the Appellants participated in t h e a ltera tion of the Conditions of Service and t h a t they h ad sufficient J6 ,- notice of the ond tion of Serv ce that were va ried resulting ir to volu tary epa ration cheme and its package to which they later consented in writing" con rary to the Law and the evidence on record· , (3). The Lower Court erred in law by stating that all the contplainants were given enough time to consider whether or not the voluntary separation scheme wa detrimental to them, contrary to the evidence on record which clearly shows that the Appellants jobs were advertised before consent was availed and in clear breach of the principles of consultation; (4). The Lower Court erred in law by holding that the Appellants were not entitled to remain on the pay roll contrary to the evidence on record and t he current law; (5). The lower Court erred when it held tha the Respondent did not breach the contract of employment contrary to the evidence on record and the curren l aw; and (6). The lower court misdirected itself in law by failing to comply with the tenets of writing judgments by not J7 summarizing t h e Ap pellants submissions and the authoritie s c ited t h erein and by faili ng to a nalyze t h e m . . 0. ARGUMENTS IN SUPPORT 5.1. Couns 1 for th e Appellants filed heads of arguments on 3 rd March, 2022 and submitted in ground one that the Appellants were declared redundant by operation of the law and not that they opted to be voluntarily separated . 5 .2. The Appellants argued that there was a unilat eral, adverse alteration of their conditions of service by the Board and ·ts management, that is to say an accrued right was taken away in contravention of Section 55 (1) (c) of the Employment Code Act which essentially amounted to declaring the Appellant redundant as at the date of the alterations being 21 st pril 2020. 5. 3 . It was argued that the lower court's holding th at the Respon ent ba nk was r elieved of the obligation t o p ay ben fits under the 2014 Employee Ma nua l w nt gainst t h e guidan e of the Suprem e Court 11 lh ca.. of Attorney General v Nachizi Phiri1 . urth r, they r ru cl th t t h Re pondent bank h ad J8 .. disguised t ans n o t r ancy ituation which had r alt rat' on of the Appellants ' ondif f s · ic i1 April 2020 . Coun el relied on the case of J acque line Chipasha Mutale and Stanbic Bank Zambia Limit ed2 . 5.4 . Cou nsel argued grounds two and three together, submitting that there was no evidence on record that the Appellants participated in the alteration of their Conditions of Service and that ·n fact the Board Resolution as appear at p ages 162-169 of Record of appeal does not indicate that the Appellants attended that p articular meeting. 5.5. It was furt h er argued that the Appellants did not have su fficien n otice of the Con ditions of Service that were varied r esulting into voluntary separation, neith er were the Appellant s given enough time to consider the detrimental effects thereof. 5.6 . Counsel submitted that there was no evidence on record to prove this. Counsel contended that the evidence on record ho s that the Appellants were given only four hours within hich to apply for positions which t hey were currently holding a nd without any prior consultation a per pag 448 of th record of appeal, lines J9 7-25 . It wa t fore t e p lla n · could get feedback on th it o 'tio w re cla ed vacant and d 5 .7. In 4- 10 o th r cord of a ppeal . 1 r rgu d th t the A pellants were n ot cl us 7. 0 proces as per the 20 14 Condit ions of Service ' 1.d RWl's evidence at page 493 lines 9-21 of the record of a ppeal. 5.8 . Under ground four Counsel argued that the lower court erred by h olding that the Appellants were not entitled to remain on he payroll contrary to the evidence on record and the curre t law in Article 189 (2) of the Constitution Amendment Act No.2 o 2016. Further, by the lower Court's finding that the Appellan s were not paid their benefits in full and awarded three months ' pay in lieu of notice and payment of accrued leave days. 5.9 . He argued that the Appellants were entitled to rema· on e payroll as per Article 189 (2) of the Constitution No. l of 2016. 5.10 . In ground five , Coun el cont nded that th lo er u · erred by holding that the pond nt di ot r ach th e Contract of Employmen t which was co tr ry to the vidence on r ecord . JlO Counsel argued th t the effect of unila teral alteration of Conditi n f tha w r being enjoyed by the employees amount d to br h of contr ct. To buttress this point, d to he minutes of the Board meeting a t pages 162- 169 of the record of appeal. 5. 11. Under ground six, Counsel argued that the lower cou rt misdirected itself in law by failing to comply with the tenets of judgment writing by not summarizing the Appellant 's submission and the authorities cited therein and by failing to analyse them. 5.12. Counsel referred to the cases of Minister of Home Affairs, The Attorney General v Lee Habasonda3 and Geoffrey Chumbwe v Keith Mukata and Electoral Commission of Zambia4 . He argued that despite referring the lower court to Supreme Court authorities, the lower court never summarized them nor referred to them and did not refer to any of the authorities in the Judgment. 6.0. ARGUMENTS IN OPPOSITION 6.1. Counsel for the Respondent filed heads of argument on 20th May, 2022 and submitted in ground on that the Appellants have gone to great lengths to try and prove that what happened was a J11 redundancy that wh · but t rrn1n r ·} n anything el e. Co nsel argued p s no a red ndancy u ... c.u ... ~ by the parties to tr 1 p . un l at d hi ubmi io t t there a re many w ys in v hi h n n ployment relationship may be t erminated per Section 52 (1) of the Employment Code Act No.3 of 2019 . He submitted that a contr a ct of employment legally terminates in any one of th e fo llowing ways: As p r ovided in the Contra ct of Employment; II. As provided u n der the Employment Code Act; III. As p r ovided u nder a n y other law . 6. 3. Counsel argued th at in this instance, the Appellants employmen was terminated by way of voluntary separation whic er c ause (iii) above in which a contra ct of emplo nt ay b terminated. 6.4. He argued that the Appella nts left pl y hr h a v lunary p h t p SU mi t willing w nt. He d t o ff r n hich t o leave J 2 employment as per page 166 ljnes 17 and page 168 lines 20 of the record of a pp 1. He s bmi t d that all the Appellants voluntarily applied in writing to go on voluntary separation as per page 190 to 197 record of appeal. Th eir applications were accepted as shown from pages 198 to 2 12 of the record of appeal. 6. 5 . Cou n sel submitted that in the face of th is deliberate decision by the Appellants t o leave employment , it is diffi cult to comprehend their argument that they in fact left employment by way of r edundancy. Counsel cited the case of Harvey v Yankee Traveler Restaurants cited by Winnie Sithole Mwenda and Chanda Chungu in their book "A comprehensive Guide to Employment Law in Zambia" and submitted that a cceptance of such applications by the Respondents cannot be a mutual exercise that can be termed as u n ila teral under an circumstances . 6.6. Counsel submitted that both witnesses for the ppellant s agreed that no one forced them to pply to go on voluntary separation and both confirmed that ther were oth r employees who had been offered to go on voluntary separation but who declined and J13 r were still working for the respondent as per page 41 4 lines 2 1 to 23 and page 429 lines 2 -5 of the record of appeal . 6 .7. He contended that in the circun1 tances , it cannot be argued that the court b elow misappreh ended the facts, made perverse findings , or that there was n o evidence u pon which to make the findings . He u rged this Court to dismiss this ground. 6.8. Groun ds two and three were argued together. It was subm'tted that the statement by the court below, being complained of, is supported by evidence laid before the court at trial, and not made in a vacuum. Counsel chr onicled the events as follows : (l)The circular inviting employees to apply for voluntary separation was issued on 27 th July 2020 as per page 188 of the record of appeal; and (2)Two days later , on 29th July, the 2nd Appellant (page 191), the 3rd Appellant (page 192), and the 5th Appellant (page 194 applied to go on voluntary separation. (3) Eleven days later on 7th August 20 20 the 4 th Appellant applied (page 193). The 6 th Appellant applied 16 days later (page 195) while the 1st Ap pellant applied 18 days later (page 190). Jl4 ,· 6.9. He submit th th a bove chronology of events clearly suppor t ur findings that the Appellants had no n id r wh th r or not th voluntary separation a nt to them. .1 r un el submitted that the Appellants had an oppo unity to change their minds when their applications were a c pted, by refusing to sign the letters of acceptance sent to them by the Respondent. Further, that the fact that their jobs were advertised was also not strange to them because the circular clearly provided for the job advertisemen as per age 188 of the record of appeal. 6.11 . Counsel argued, that when the Appellants applied o separation, and when they consented to the acceptance of their application to voluntarily separate, they knew or ought to have k own that their positions had thereby become vacant . That th point that t heir positions were subsequently advertised b nt. He urged .hat these two ground be dismis d. 6 .12. Unde r ground four , Coun 1 s u bmi · th t · s misleading for t he App 11 to rgu th t th low r ourt awarded them three m onths ' pay in lieu of notice. Coun el submitted that the claim JlS for thre months' p y in li u of no ice was dismissed by the lower co r p r p 58 lin 12 to 1 7 of h re ord of appeal. 6 .13 . r r s r 1ti n o oll, Couns 1 s bmitted that the urt r a oning on his issu ould not be fa lted. He n rd d tl at 1 ve days cannot be termed as a pension benefit hich would entitle the retention of a person on the payroll pursuant to Article 189 (2) of the Constitution of Zambia. In support of the foregoing, Counsel referred to the case of Lubunda Ngala & Another v Anti-Corruption Commission6 . Counse submitted that in the circumstances, this ground must equally fail. 6 .14. In arguing ground five, Counsel maintained his arguments appeanng at pages 703 to 707 of the record of appeal. He submitted that where parties terminate their employment relationship by mutual consent, there can be no brea h of contract or any claim for wrongful or unfair dismissal and that this ground must fail. 6.15. Under ground six, Counsel submitted that the Judge in the lower court reviewed th pl a dings and eviden nd v reasons for J16 the decision h e m a d e as seen on page 48 of the record of appeal, which exc rpt app r follows: "Learned Counsel for both partf. filed wrttten submissions whic'f I have duly con idered and I will make reference to hent wher - relevant. I have considered the Affidavit and viva voce evidence, as wel as t he submission and authorities I have been referred to' 6.1 6 . Counsel submitted the above excerpt shows that the Judge was fu ly aware of the submissions and authorities cited by the parties. He argued that it is trite law that Courts are not bound by the submissions of Counsel and that what they are expected to do is give reasons for their decisions. To buttress the fo egoing, Counsel referred us to the case of Kitwe City Counc · v Wilham Nguni7 w h ere the Supreme Court held that the C is n ot b ou nd to consider Counsel's ubm' s ions , becau e ubmi sion s ar only m a nt to urt i arriving at a Judgm t . C n 1 , r a on1n f th l r ourt has b en given in the J u gm h h ' 1 h t i import t to cons ide r . J17 • 6.17 . Finally, Couns 1 ubmit d hat this ground with the whole appeal c U d and t hat the entire appeal be dismissed with co 7 .0 . HEARING 7 . 1. t the :i. g both Counsel for the Appellant and espondent relied on their filed documents . 7.2. r. Kalokoni Counsel for the Appellant briefly augmented his submissions by emphasizing that redundancy was a statutory right accorded to all eligible employees in Zambia aft er the enactment of the Employment Code Act. He contended that any unilateral variation of conditions of services gave right o redundancy. He submitted that the Board of Directors representing the shareholders unilaterally varied the conditions of services as appear at page 162 of the record of appeal. 7. 3 . He argued that th e lower court's finding that the ppe 1 t participa t ed in the variation of the conditions of s ervi e was not supported by ar1y evidence b ecause the Appellants were not part of the Boa rd m eetings . He argued that the R spondent deciding to offer the Appellant a voluntary separatio pack ge was a way J18 , ·- .. of contracting out of ection 55 of the Ernployment Code Act which is p hi i d by ction 127 of h same Act . 7.4. In r po Mr. Mambwe, Counsel for the Respondent submitt d that ection 52 (1) of the Employment Code Act pro · ided anous ways in which a contract of employment can terminate including voluntary sep aration. He submitted that redu nd ancy was not the only m ode of termination provided in the Employmen t Code Act and argued that on a proper view of the facts ther e is no way a findin g of redundancy can be made . 7 .5 . He contended that the termination of employment by volun tary separation was consensual an d that there was n o uni ateral decision made by one part to the exclusion of other s . 7. 6 . He referred us to pages 162- 169 of the board m inutes in which the Appellants h a d submitted a paper from th e committee which proposed the change from permanent and pensionable conditions to fixed contract, and later introduce th e ol n separation. He submitted that t the Board m eeting tt d d by management, one of who wa th t A p llan , there was a circular inviting employees to volun ary p te which was J19 circul t d . H ubmiU d th t no on forced anyone to apply for th volunt ti n 7.7. H r i rr to f th r rd of app al, wherein the b nl th pr po ls to go on voluntary separation . rth r uns l ant nded that the 1st Appellant in cross ~ minati n, as appear at p age 114 of the record of appeal , onfirmed that she was not forced to sign off any document, and that the 7 th witness told the court that he declined the offer of separation package and remained in employment. Counsel argued that this shows that this was a consensual exercise, and there was no unilateral variation of conditions of services . In reply, Mr. Kalokoni, argued that the resolution s that were made at page 168 of the record of appeal were not cons e sual because at the time the Board sat to remove those cond' tio of service, the employees were not consulted and by the time the voluntary separation schem e was commun ·cated , t e decision was already made by the har hold thi could be done abo t it . That the f 11 info mat' f yab le was not given to the ppell .nt b 1t r th r , 1 n on the last day of duty s per p e 1 72 of th r cord of ppeal. J2 0 8 .0 . DECISION OF THIS COURT 8.1. We have con id r d th pp 1, the evidence in the Lower Court, th uthoriti , it d d th heads of arguments filed by the 1 arned unsel for both p arties . . 2 . In ground one, the argument is that what transpired between the Appellants and the Respondent bank was a redundancy exercise and not a voluntary separation as canvassed by the Respondent. That as a result of the foregoing, there was a varia tion of the Appellants accrued rights by the voluntary separation package which according to them was unilaterally altered by the Board of Directors. Further, that there was no consent by the Appellant s to the voluntary separation scheme and that this was contrary to section 55(1) of the Employment Code Act. 8 .3 . In our view, the issue to be resolved in ground one is whether the Appellants' terms and con dition of employment were unilaterally varied by the Respondent without the Appellants ' cons nt and a a result, whe ther t hi ri tion ant h t the e e made redundant. J2 1 .-. .. 8.4. According to sectio n 5 (1) f the Employment Co e Act, termination f ploym n t can be clas ified as redundancies if th f 11 un r on of l r b elow: ( 1). Th r cea ing or intending to cease t o carry on the busin by virtue of which the employees were enga ged; (2). Th business ceasing or diminishing or expected ceasin g or dimin is hing the requirement for the employees to carry out work of a p articular kind in the pla ce where the employees were engaged; and (3). And adverse alteration of the employee 's condition s of service wh ich th e employee has n ot consen ted to . 8 .5. In the case of Mike Musonda Kabwe v B. P. Zambia L1mited8 it was held that: "Where an employer varies the basic conditions, without the consent of the employee, then the contract of emp loyment terminates and the employee is deemed to have been declared redundant on the date of such variation and must get redundancy payment if the conditions of service do provide for such payment" J22 8.6. This position was r - fi m d y the Supreme Court in the case of Peter Ng audw er n Zamox v Z mbia Privatization Age11cy9 th up em e Co rt held that: 'If an employ r varie the basic ondition of employment wi hot t the con ent of the e mploy , then th contract of employment terminates." 8 .7 . It is clear from the cited case law that in a written contract of employment unilateral variation of basic conditions of service attracts a redundancy package or early retirement if one or the other is a condition of service. 8.8. A perusal of the options in section 55 of the Employment Code Act in our view does not show that the Appellants were made redundant. This is because the employer never ceased or intended to cease carrying on business by virtue of which the employees were engaged. This is evident from page 1 of the record of appeal in which an internal memor and w sent to all Staff regarding the xercise of olu tary sep r tio from t e bank. 8 .9. In the intern 1 m emor n dum, th p on nt b k clearly indicates th t tho m 1 y on rm n nt d pensionable J23 conditions of service wishing to leave the bank on the voluntary separation p cl could ubmit th ir application to the M n a!lin ir tor. Furth r, it w k own to the Appellants that th ne o iti n that would arise from this voluntary paration rcise would be advertised and competitively filled . d iti n 11 , that the positions would be on a three-year fixed term ntract. Separated staff would also be free to apply for the advertised positions. Emanating from this , it cannot be argued that there was a unilateral variation of the conditions of service and that therefore, the exercise carried out by the Respondent was in fact a redundancy. 8 . 10. Specifically, on 14th August, 2020 the 1st Appellant accepted the voluntary separation package as appear at page 190 of the record of appeal. The Appellant had 15 days to consider the offer, study the terms of offer and decide, the 1st Appellant does not state that during that period, she questioned this decision or indeed contend that she did not agree with the t rms nor that she fe lt she had not been con ulted. 8.11. In the letter a t page 198 of the record of pp al t t e 1st Appellant d ated 15 th Septemb r, 2 020, h conditions for J24 calcul tin h a rli r d on p g w re, once again set out as 1st A pellant was asked, at individual le i nify h e r p t n e of t h e separation package by th t tement of acceptance of volunt a ry separation . Pa e 199 h · s th at on 18th Septem ber, 2020 , the 1st Appellant ed this d ocument . Furth er, Mr . Mambwe clearly set out the chronology of events as collated at p aragraph 6 .7 of this J dgment. 8 .1 2. Based on t h e a bove , and contrary to what Mr. Kalokoni con tends, it cannot be said that the s ep aration w a s n ot consensual, neither can it be said that it was a r edun d ancy . We agree with Mr. Mambwe that it cannot b e s aid t h a t the Appellant s we re forced to sign agreement s that they h ad not a cquiesc ed to . It is our considered view t h at t h ere w a s no unila teral variation of the conditions of service. Th e for g01 5 1 ou r consid e red view ca nnot by any stretch of imab· ati n fall und r the category of termination b y way of r d u c 8. 13. We m ust e mpha iz that th du ty of th Court · t n~ r e at p a rties have agre d t o in h ir ont Th e fore, t h App lla nts r , ur nd nt. h e J25 agreements th ey signed, o b voluntarily separated . We further agr ' \! not fault th 1 din g of the tria] Judge that the t<:>rminnti( n of cmplnym< nt W ' H by m tual co sent which is a l gall_ r '1'1,. qt l mok <f separation . Ifac:;r,d on the foregoing c al t ion of th c id , w phold the trial Judge 's findjng d ind tl t ·oun one la k s m ri t and it is dismissed . 14. Gr und t ro and three of th e appeal were argued together and the contention therein is that th e Cou r t below misdirected it elf by holding that the App ellants participat ed in the alteration of conditions of service that were varied resulting into the voluntary separation scheme and its package . 8 . 15. We note on page 53-55 of the record of appeal that it clearly shows how the Judge in the court below arrived at h is decision regarding whether the Appellants h a d sufficient time o consider the voluntary separation s cheme and that being in management, they had full knowledge of the happenin gs of the Respondent bank. Th e excerpt from the Judgment read as follows : "I have no doubt in my mind that the complainants, who were a ll Management staff, had sufficient notice of the J26 . ' · · n chern conditions of se, · ce that wer varied resulting into t he vo.luntary separation ch · 1ne and its package to which they later on nt d n writing. I am quite atisfied that t1tey did in fact fully participat in t alt ration of the ondition of ervi whi h culminated into th voluntary a di · tin t and separate agreement epa, front th · ir ontra t of ,nploym nt which w r governed by the Hun1an Resource Policy Manua l of 2014 ...... in to the above circular, the complainants made respons applications for voluntary separation as shown by their application letters, 'NKS2' to 'NKS9' severally written between 29th July, 2020 and 14th August, 2020. o 15th September, the Complainants' volu tary separation ...... it is not in issue that the statements of acceptance of the separation package were signed by all the complainants. This meant that the complainants had wholly accepted to be paid at the rate of two and a half months basic pay per each year served. Considering all the circumstances of this case, I find that all the complainants had enough time to consider whether or not the voluntary scheme was detrimental to them as regards the payment of the severance package under the scheme. applications respondent accepted 2020, the for 8 . 16 . Further, 1n the case of Simpson v Foxon 1 the rt h eld that: "What a man intend and the exp ess on o h tntentton are two different thing those who take after him ar bo, n expre . ed intentto " by h ·e i b n and J27 ... 8.17. It is trite law that the courts will n ormally uphold the manifest intention of partie h o have properly execu ted an agreemen t. The holding u1 th case of Printing and umerical Registering Company v Simpson 11 , quoted at page 8 in the case of Colgate Palmolive (Z) Inc. v Abel Shemu C uka nd 110 Others 12 is a case in point and reads as follows: "If there is one thing more than another which public policy requires it is that men of full age and competen understanding shall have the utmost liberty in contra ting and that their contract when entered into freely and voluntarily shall be enforced by Courts of justice." 8.18. This position was reiterated in the case of Zambia Telecommunications Company v Eva Banda 13 . 8.19. Based on the evidence on record we find that the learned Judge in arriving at his decision was on firm footing after a proper evaluation of the evidence before it. We agree with Mr . Mambwe that there was a consensual separation and there was no unilateral decision made by one party to th e exclu ion of the other. We therefore, agree ith t h e learned J udge's finding that it cannot be said that the Respondent u 1ilaterally varied any of the Appellants basic conditions of service . J28 8.20. We furt her find that the App ellants h avin g signed th e Agr eement a cquies ced t o the conditions in the voluntary separation pack a . W are of th view that the part ies havin g en t r d into this contract fre ly and voluntarily were fully aware of th t rms and condition thereunder. In addition the ' Appellants were well aware t h at the p ositions they had separated from had become vacant as the same was com municated via the internal memorandum . We therefore find grounds two and three to be bereft of merit. 7 .5 With regard to ground four having found in groun d one that the Appellants were voluntarily separated and n ot declared redundant it follows that the principles espoused in the case of Anderson Mwale, Buchisa Mwalongo Kola · Odubo te v Zambian Open Un iversity 14 are apt. The Constitutional Co rt h a d occasion to pronounce itself on which pension benefit give s way to reten tion of an employee on th e payroll. Th e Con stitutional Court held that: "Give n t h a t t he Pens ion benefit referred to i n Artic les 187, 1 8 8 a nd 1 89 of the Consti tution, is a pen sion benefit grant ed by or u nder a relevant pension law o.r other law, it J29 follows that for an employee o be retained on the employers payroll under Article 18 9 (2) of the Constitution, the pension benefit which i not paid t o an employee on the last day of work should be a pen ion benefit granted by or under the re levant pension law or other law applicable to that employee's service." 8 . 21 . hat emerges from the authority above is that accrued leave days cannot be considered to fall under the definition of a pension benefit. The lower court's reasoning cannot be assailed as leave days cannot be termed as a pension benefit which would entitle the .retention of a person on the payroll pursuant to Article 189 (2 ) of the Constitution of Zambia. This ground of appeal lacks merit and is dismissed. 8.22. In ground five, the Appellants contend tha t the Respondent breached t he contract of employment with regard o the unilateral a lteration of the conditions of service. Having found in grounds two and three that the parties entered into the contract regarding voluntary separation freely and voluntarily, it follows that th e parties were fully aware of th term and onditions J 0 th r d r. h t hol is t at the espondent did not bre 8.23. In co of 1n o n equally fails. by t n it f il d to comply wit h the tenets omitting to summarize the Appellants ubmi so d th uthorities thereunder. e e · h the Respondent that the Judge in the court below ·ct evie the pleadings and evidence, and that the Judgement o · e Record of appeal reveals that the judge succinctly al zed the evidence before him. 8.25. e also want to reiterate the position of the law in the well established case of Kitwe City Council v William Nguni7 c·ted by the Respondent, that the court is not bound to consi er Co n sel's submissions because submissions are only meant to assist the Court in arriving at a judgment. In our w, t e decision arrived at by the trial judge shows ho h d a scholarly decision based on h is own rea on1 g e 'dence, d he 1 w. deci 10n Un d. T l grou a· e void f m r it. J31 8 .26 . In conclusion, w fi t t of a peal are u nmeri or i Rep t t m d . h co t to the B. M. AJULA COURT OF APPEAL JUDGE . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . P. C. M. NGULUBE COURT OF APPEAL JUDGE . ......... . A. M. BANDA-BOBO COURT OF APPEAL JUDGE J32