Marshal Chileshe v Zambia National Building Society (APPEAL 258/2022) [2024] ZMCA 228 (22 August 2024)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL 258/2022 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: , r · , 211 MARSHAL CHILESHE APPELLANT AND ZAMBIA NATIONAL BUILDING SOCIETY RESPONDENT CORAM: Kondolo, SC, Majula and Banda-Bobo, JJA On 13th August, 2024 and 22nd August, 2024. For the Appellant: Mr L. Zulu and Mr. A Ch u ni of Messrs Equitas Legal Pr actitioners For the Respondent Mr P. Chomb a of Messrs Mu lenga Mun dashi Legal P ractitioners JUDGMENT Banda-Bobo, JA, delivered the Judgment of the Court. Cases referred to:- 1. Melanesian Mission Trust Board v Australian Mutual Provident Society (1996) UKPC 53 2. ZESCO Limited v Edward Angel Kahale, Appeal No. 37 of 2020 3. Chartbrook Limited v Persimmon Homes Limited (2009) UKHK 38 4 . Ringford Habwanda v Zambia Breweries PLC, (2012) 3 Z. R. 7 5. Inda Zambia Bank Limited v Mushaukwa Muhanga (2009) ZR 266 6. Power Equipment Limited v Goldtronics Limited and Barclays Bank Zambia (2012) 3 ZR 358 7 . Association of British Travel Agen ts Limited v British Airways Plc (2002) 2 ALL E. R. 204 8. Wallace v Toronto- Dominion Bank (1983) Canlii 1983 (ON CA) 9. MacGregor v National Home Services (2012) 2042 10. Irrcher v MI Developments 2003 ONC 10675 11. Ngorima v Zambia Consolidated Copper Mines (2017) ZMSC 24, 12. Konkola Copper Mines v Hendrix Mulenga Chileshe ZMS 153, 13. Zambia Airways Corporation Limited v Gershom Mubanga SCZ Judgement No. 5 of 1992, 14. Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa (1986) ZR 15. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 16. Chilanga Cement plc v Kaoste Singogo (2009) Z. R 12 17. Swarp Spinning Mills PLC v Sebastian Chileshe and Others (2002) ZR 23 18. Andrew Tony Mutale v Crushed Stone Sales Limited (1994) S. J. 98 (S. C.) 19. Attorney General v D. G. Mpundu (1984) Z. R. 6 (S. C). 20. Dennis Chansa v Barclays Bank Zambia PLC SCZ Appeal No. 111 /20 11 21. The People v Manroe (2010) HPA/50/2010 22. BJ Poultry Farms v Nutri Feeds Zambia Limited Appeal No . 166/201 5 23. Heather Musariri v !School Zambia Limited Comp. No. 391/2016 24. Augustine Kapembwa v Danny Maimbolwa and the Attorney General (1981) Z. R 127 (S. C) 25. National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo Appeal No. 79 of 2001 26. Zesco Limited v Edward Angel Kahale Appeal No. 37 of 2020 27 . Colgate Pa lmolive (z) Inc v Abel Shemu Chuka and 110 others Appeal No. 11 of 2005 28. Henry Nsama and Others v Zambia Telecommunications Company Limited (2014) Z. R 85, 29. Gildah Ngoma and Others v World Vision Zambia Appeal No. 159/2019 30. Attorney General v Marcus Kampumba Achiume (1983) ZR. 1 (S . C) 31. Holme Limited v Build Well Construction Company Limited (1973) Z. R 32. Dickson Zulu and Others v Zambia State Insurance Corporation Limited SCZ Appeal No. 203 of 208 33. Care International Zambia Limited v Misheck Tembo SCZ Selected Judgement No. 56 of 2018 34. Zambia Consolidated Copper Mine v James Matale (1995-97) Z. R 157 (S. C) 35. Attorney General v Chibaya and Others SCZ Appeal No. 70 of 2011 36. Zambia Revenue Authority v Dorothy Mwanza (2010) 2 Z. R 181 37. Davis Evans Kasonde v Zambia Revenue Authority Appeal No. 84/2015 38. Hayward and Another v Pullinger and Partners Limited (1950) 1 All ER at pages 581 to 582 39. Chief Bright Nalubamba and Zambia Co-operative Federation Limited v Muliyunda Wakunguma Mukumbuta (1987) ZR 75 40. Hastings Obrian Gondwe v BP (Zambia) Limited (1995-97) ZR 178 J2 41. Kuta Chambers (Sued as a (Suing as Administratrix of the estate of the late Francis Sibulo) Selected Judgement No. 36 of 2015 firm) v Concillia Sibulo 42 . Nsama and Others v Zambia Telecommunications Company Limited Appeal No. 21 / 2012 43. Y. B and F. Transport v Supersonic Motors (2000) ZR 22 44. Afrope Zambia Limited v Chate & Others (2016) ZMSC 41 45. Printing and Numerical Registered Company v Simpson [1875] LR19 Eq 46. South India Corporation (P) Ltd v The Secretary, Board of Revenue, Trivandrum and Another ( 1964) AIR 207 47. Hakainde Hichilema v the Attorney General Appeal No. 4 / 2019 48. Miller v Convergys CMG Canada Limited Partnership, 20 13 BCSC, 1589 49. Zambia Electronic Clearing House Limited v James Kalengo Appeal No. 239 of 2020. 50. Communication Authority v Vodacom, SCZ No. 21 of 2009 51. Attorney General v Achiume (1983) Z. R. 1. 52. Nsansa School Inter-Educational Trust v Gladys Mtonga Musamba (2010) 1 Z. R 457. 53. Rosemary Bwalya, the Attorney General and the Commissioner of Lands v Mwanamuto Investments Limited SCZ Judgement No. 8 of 2012 Legislation referred to:- 1. The Constitution of Zambia as amended by Act No, 2 of 2016 2. The English Law (Extent of Application) Act, Chapter 11 of the Laws of Zambia. 3 . High Court Rules, Chapter 27 of the Laws of Zambia 4. Court of Appeal Rules, S. I. No. 65 of 2016. Other works referred to :- 1. Black's Law Dictionary, 5th edition 2 . Halsbury Laws of England, Volume 9, 4th edition 3. Civil Procedure in Zambia: Cases and Materials at page 1717 4. Evan Mckedrick's Contract Law, 2rd Edition 1. INTRODUCTION 1.1. This is an appeal and Cross appeal against the Judgement of Honourable Lady Justice S. Kaunda Newa delivered in the High Court at Lusaka on 26 th July, 2022. J3 2. BACKGROUND FACTS 2.1. The antecedents to this appeal are that the Appellant was employed by the Defendant on a 3-year fixed term written contract as a Business Development Manager (hereinafter referred to as "the impugned contract of employment"). The Contract was set to run from the 1st of July, 2016 to the 30th of June, 2019. In terms of the reporting structure, the Appellant was to report to the Director Banking. 2.2. On 23rd August, 2018, the Appellant was promoted to the position of Head Credit, after undergoing th e normal internal recruitment process. This new position came with an increased Salary of K26, 841. 00 and other terms of employment in Grade ZNBS 3 of the Respondent's Grading structure, as contained in the Corporate Terms and Conditions of Employment. The Appellant's reporting structure also ch anged. 2 .3. On 1st April, 20 19, the Appellant expressed his intention to renew his contract of employment, stating that his contract was set to expire on 30th June, 2019. On 4 th April, th e Respondent replied to the Appellant's intention to renew the contract, informing him that his contract would not be J4 renewed. Subsequently on 10th April, 2019 the Appellant responded to the letter of non-renewal, thanking the Respondent for giving him an opportunity to serve in different positions and asked the Respondent to convert his staff mortgage into a commercial mortgage. He also requested to be placed on garden leave. 2.4 . On 11th April, 2019, the Appellant was granted garden leave pending expiry of his contract. On 17th April, 2020 the Appellant through his advocates wrote a letter of demand to the Appellant claiming damages for wrongful, irregular, discriminatory and unlawful dismissal. By a letter dated 28th April, 2020 the Respondent denied the claims. This prompted the Appellant to seek the intervention of the High Court. 3. CLAIM IN THE HIGH COURT 3.1 . By Writ of Summons accompanied by a Statem ent dated 19th May 2020, the Appellant sought th e following reliefs: i. An order that notwithstanding the couching of the award of the new position as a promotion, the award of the new position of Head Credit to the Plaintiff based on merit and application process created a totally new contract of employment commencing from 23rd August, 2018 for a term of three years as it was JS preceded by a valid offer as contained in the internal advertisement which was accepted and supported by sufficient consideration from the Plaintiff, satisfying all the legal requirements for concluding a fresh legally binding contract; ii. An Order that the Plaintiff became entitled to the new 'employment opportunity' as advertised and to the enjoyment of clause 3.1.1 of the Defendant's, ZNBS Corporate Terms and Conditions of employment -2017 which expressly provided that Management staff in grades ZNBS 1-ZNBS4 shall be em ployed on fixed term of three (3) years effective the date of the Purported promotion having passed the interviews for the job; iii. Alternatively, an order that the clause providing for the termination of the employment contract of the Plaintiff as Business Development Manager on 30th June, 2019 became ineffective and of no effect on account of the principle of changed substratum when the Plaintiff was promoted to the position of Head Credit in the Defendant's establishment on 23rd August, 2018; iv. An order that therefore, the termination of the Plaintiff's employment as Head Credit in the Defendant's employ on 30th June, 2019 in reliance of a contract and a clause applicable to him as Business Development Manager when the original employment contract was no longer applicable was therefore J6 wrongful, irregular, discriminatory and devoid of any legal support hence illegal; v. Damages for the wrongful, irregular, discriminatory and illegal termination of the Plaintifrs employment as Head Credit amounting to thirty-six (36) months gross salary in line with the latest Supreme Court decisions: vi. Damages for mental anguish on account of the Defendant's wrongful actions; vii. An order that the staff mortgage loan in the sum of K400, 000.00 should be settled on the preferential staff interest rates up to 22nd August, 2021 and not at commercial rates from 1st July, 2019; viii. Interest at the commercial bank lending rate on the amount founds due; ix. Costs of and incidental to these proceedings; and x. Any further or other reliefs the Court may deem fit. 3.2. The gist of th e App ellant 's case was that his prom otion from the position of Bu s iness Developm ent Manager to Head Credit, constitu ted a fresh 3-year fixed term contract starting from 23rd August, 20 18. Th is was on the b asis of his interpretation of th e impu gn ed con tract of em p loyment, the Letter of prom otion, th e Responden t's Corporate Terms and J7 Conditions of Employment, and the common law doctrine of changed substratum. 3.3. Alternatively, that the Respondent breached legitimate expectation when it failed to renew his contract despite assurance that his contract would be renewed and that the Respondent failed to give the Appellant the requisite 3 months' notice of non-renewal. 3.4. In its defence, the Respondent averred that the Promotion to Head Risk was not a new contract, rather a continuation of the three-year fixed term contract under which the Appellant was employed. That this is because the appointment of Business Development Manager was subject to promotion. The Respondent also denied having given the Appellant legitimate expectation of the renewal of his contract. 4. DECISION OF THE HIGH COURT 4. 1. The Judge in the Court below found that the promotion of the Appellant from the position of Business Development Manager to Head Credit did not constitute a fresh 3- year fixed term contract of employment and as such the impugned contract continued to apply. Consequently, that the Appellant's contract of employment was not terminated by J8 the Respondent. Rather that it terminated by effluxion of time on 30th June, 2019. 4.2. The Court also found that the Appellant had not established the claim of legitimate expectation that his contract would be renewed. The trial judge further found that the doctrine of changed substratum which was being relied upon by the Appellant was not applicable because the law which was applicable to the Appellant's contract of employment did not provide for revision of the contract to reflect changes. 4.3. Similarly, it was found that the Canadian authorities that were relied upon by the Appellant in support of the doctrine of changed substratum were only of persuasive value. 4.4. Additionally, the Court below found that there was no wrongful or unlawful termination as the Appellant's contract had expired due to effluxion of time . 4.5. The Trial Judge found that the staff loan concessional interest was a fringe benefit which terminated with the expiry of the contract of employment. 4 .6 . Ultimately, the trial Judge found that all the Plaintiff's claims lacked merit and dismissed the entire action, with each party bearing their own costs. J9 5. THE APPEAL AND CROSS APPEAL 5. 1. Dissatisfied with the decision of th e Court below, the App ellant appealed to this Court fron ting th e following n ine (9) grounds of a ppeal: i. The Court below erred both in fact and law by holding that the effect of subjecting the Appellant's employment contract as Business Development Manager to promotion is that the terms of the said contract as Business Development Manager, especially its tenure, continued to subsist despite the Appellant's promotion as Head Credit effected by the Respondent; ii. The trial Judge erred in fact and law when she failed to give effect to the Respondent's Terms and Conditions of Employment in respect of the position of the Appellant which expressly provided that he was entitled (3) year contract on assumption of the requisite management grade; three to iii. The Court below erred in fact and in law by holding that the Respondent did not wrongfully, unfairly and unlawfully terminate the Appellant's contract of employment as Head Credit; iv. The Trial Judge erred in fact in law by not awarding the Appellant damages for mental anguish for wrongful, irregular and unlawful termination of employment; the Appellant's v. The Trial Judge erred in fact and law when she held that the Respondent was terminated by effluxion of time and that holding otherwise would amount to rewriting the Contract between the parties when the effect of the Respondents Terms and Conditions of employment with JlO Employment stipulated management grades; is that the the effect of parties had already to any promotion vi. The Court below erred in fact and in law by holding that the Changed Substratum was not a lawful manner under which a contract of employment can be terminated when the said principle forms part of common law; the Human Resources vii. The Court below erred in fact and in law by disregarding the effect of proved and admitt ed assurances by the Appellant that his contract would be renewed insisting for more evidence from the Appellant, apart from his own sworn testimony whose veracity was never shaken in cross examination, on the assurances from the Director Risk, who was never called as a witness, thereby failing to give effect to the standard of proof in civil proceedings; to viii. The Court below erred in fact and in law by holding that there was no evidence on record to prove that the Appellant was not paid in lieu of notice of non renewal of the contract of employment for at least (3) months; and ix. The Court below erred in fact and in law by holding that the Respondent's conversion of the staff mortgage from a concession rate of 10% to commercial rates was not wrongful. 5 .2 . The Respon den t also having been dissatisfied with a portion of the J udgem ent of th e Court below, cross appealed on the following sole grou nd: i. That the Learned trial Judge erred both in law and in fact when on page J56 of the Judgement she J11 refused to grant the costs for and attendant to the proceedings to the Respondent on the basis that the cause was an employment matter where employment had come to an end. 6. ARGUMENTS IN SUPPORT OF THE APPEAL 6.1. Counsel for the Appellant filed into Court voluminous Heads of Argument on 4 th November, 2022. We hasten to point out that the Court frowns upon the conduct of Counsel filing voluminous Heads of argument, in view of the scarce judicial resource of time, which must be used judiciously. We hope that Counsel will heed our guidance going forward. 6. 2. Grounds 1, 2 and 5 were argued together. The kernel of thes e grounds of appeal is that when the Appellant was promoted to the Position of Head Credit, in ZNBS 3 Grade on 23rd August, 2018 , the impugned contract of employment ceased to apply. 6 .3. That a fresh contract with , new terms, including the duration of contract came into existence by default. As indicated in paragraph 3 .2 Counsel based this reasoning on the provisions of th e impugned contract, the Letter of Promotion J12 to Head Credit, the Respondent's Terms and Conditions of Employment and the common law doctrine of changed substratum. 6.4. Accordingly, it was submitted that the natural and ordinary meaning of a combined reading of the recitals and clause 1. 0 (duration of contract) of the impugned Contract, the Letter of promotion to the position of Head Credit, Clause 3.1.1 (contract of employment) and 2.3 (definition of promotion) of the Corporate Terms and Conditions of Employment 201 7 , all point to the fact that the duration in the impugned contract was only applicable to the position of Business Development Manager. As such, at promotion, a new contract came in place. 6.5. According to counsel, the trial Judge should have ordinarily interpreted the letter of promotion and the Respondent's Terms and Conditions of Employment as constituting a fresh contract. That this is because the ordinary words in the stated documents show that the parties had an intention of forming another employment relationship to the position of Head Credit. In support of this argument, Counsel cited the case of Melanesian Mission Trust Board v Australian J13 Mutual Provident Society1 , to posit that the intention of the parties should be discovered from the ordinary meaning of the words used in the documents, which are unambiguous. Counsel also relied on the case of ZESCO Limited v Edward Angel Kahale 2 , where it was held that parties are bound by whatever terms and conditions they freely and voluntarily set out for themselves. 6.6. It was the Appellant's position that according to the Respondent's Conditions of Service, every time an employee is promoted to a position in a different grade, a new 3-year fixed term contract would come in place. That thus, an employee who serves in more than one grade is entitled to more than one 3- year fixed term contract. Applied to the present case, that the Appellant having served in more than two grades, namely ZNBS 4 as a Business Development Manager and ZNBS 3 as Head Credit, he was entitled to more than one 3-year fixed term contract. 6.7. According to Counsel, that Clause 3 .1.1. of the Terms and Conditions of Employment, as read with the Promotions Letter appears to offer two possible interpretations, namely (i) that management staff level employees are to serve on one J14 three-year contract despite serving on different grades, and (ii) one that requires a fresh three-year contract upon moving to a different grade at management staff level. 6.8. That this amounts to an ambiguity which should be resolved by applying the contra prof erentum rule which states that ambiguities are to be con strued against the drafter. For the definition of an ambiguity, the Learned authors of Black's Law Dictionary, 5 th edition, were cited. In buttressing the contra proferentum rule, recourse was had to the cases of Chartbrook Limited v Persimmon Homes Limited3 , Ringford Habwanda v Zambia Breweries4 , Indo Zambia Bank Limited v Mushaukwa Muhanga5 , Power Equipment Limited v Goldtronics Limited and Barclays Bank Zambia6 , and Association of British Travel Agents Limited v British Airways Plc 7 • 6 .9. In further augmenting the point that the terms of the impugned contract ceased to apply to th e position of Head Credit, the Appellant advanced the doctrine of changed substratum, espoused in the Canadian case of Wallace v Toronto-Dominion Bank8 as follows: JlS "The doctrine of changed substratum is where an employee's level of responsibilities and corresponding status has escalated so significantly during his period of employment that it can be concluded that the substratum of an employment contract entered into at the time of his original hiring has disappeared or it can be implied that the contract could not have been intended to apply to the position in the company ultimately occupied by him." 6. 10. Counsel also cited th e followin g holding in another Canadian case of MacGregor v National Home Services9 ; "the changed substratum doctrine is a part of employment law. the doctrine provides that if an employee enters into an employment agreement that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee's responsibilities and status has significantly changed. The idea behind these changed substratum doctrine is that with promotions and greater attendant responsibilities, the substratum of the original contract has changed and notice provisions in the original employment contract should be nullified. J16 6.11. Still on this point, Counsel cited the case of Irrcher v MI Developments 10 , to posit that the doctrine of changed substratum is triggered when all the important terms of an employee's written contract of employment remain the same, but all the important responsibilities change. That the effect of this doctrine is that the original contract is no longer applicable to the termination of the employment of the subsequent contract on the basis of the changed substratum. According to the appellant, when the appellant was promoted to Head Credit, his salary, reporting structure and other terms of employment changed, the impugned contract ceased to apply and a fresh 3-year fixed term contract came in place. 6.12. In support of grounds of the Appeal, it was contended that the Appellant's contract was wrongfully terminated on the basis that the Respondent did not give the requisite 3 months' notice, nor payment in lieu of notice when it terminated the contract on grounds of effluxion of time. This argument was argued in two-parts. 6.13. Firstly, that the fresh contract of Head Credit, which had only run for 10 months, could only be terminated by giving 3 months' notice or payment in lie u of notice. That this is in J17 accordance with Clause 6.1 of the Respondent's Corporate Terms and Conditions of Employment. That parties were bound by the terms of the employment contract and a termination that is conducted in breach of the procedure laid in the contract of employment is wrongful and attracts a claim for damages. 6. 14. In support of the above submissions, the cases of N gorima v Zambia Consolidated Copper Mines 11 , Konkola Copper Mines v Hendrix Mulenga Chileshe 12 , Zambia Airways Corporation Limited v Gershom Mubanga 13 , Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa 14 and Section 36 (1) of the repealed Employment Act, Chapter 268 of the Laws of Zambia, were cited. 6.15. Secondly, that even if the contract had terminated by effluxion of time, the Respondent still did not comply with clause 6.2.1 and 6.2.2 of the Respondent's Terms and Conditions of Employment which required giving a 3 months' notice of non-renewal. That although the Appellant's contract was set to expire in 30th of June, 2019, the Respondent only sent a notice of non-renewal on 4 th April, 2019, which fell short of the 3 months' notice. It was submitted that the lower J18 Court erred in holding that the Appellant did not adduce evidence to show that he was not paid in lieu of notice. That this is contrary to the evidence of DW in cross examination, which shows that the Appellant was neither given a 3 months' notice nor was he paid in lieu of notice. That this is a proper case in which this Court can interfere with the findings of fact of a trial Court as the same were perverse. Reliance was placed on the case of Wilson Masauso Zulu v Avondale Housing Project Limited15 . 6.16. It was thus contended that the none renewal was done in breach of the contract; and the Appellant is entitled to special damages. The case of Chilanga Cement Pie v Kasote Singogo 16 and Swarp Spinning Mills PLC v Sebastian Chileshe and Others17 were cited in support. 6. 1 7 . Grounds four ( 4) and Seven (7) were argued together. The kernel of these grounds of appeal is that the Appellant should have been awarded damages for mental anguish in view of the manner the contract of Head Credit was terminated. The case of Andrew Tony Mutale v Crushed Stone Sales Limited18 , was relied upon to posit that damages for mental distress and inconvenience may be recovered in an action for J19 breach of contract. That the Appellant expressly pleaded and adduced evidence in support of special damages of mental anguish, in line with the case of the Attorney General v D. G. Mpundu 19 • 6.18. Counsel submitted that in accordance with the case of Chilanga Cement Pie v Kasote Singogo 16 , there are three factors that the court should consider when awarding special damages for wrongful, unfair or unlawful termination. These are; the manner in which the termination was conducted; the level of inconvenience mental anguish, torture and stress caused; and the loss of future employment opportunities. In view of the above, it was submitted that in the present case, the Appellant was subjected to the impugned contract, which had ceased to exist. Further, that the termination was a great inconvenience to the Appellant as he had a legitimate expectation of entering into a new contract for the new position of Head Credit and as a result, he suffered mental anguish . That in fact he had received assurance from the human resource officers that his contract would be renewed. 6.19. Additionally, that by not serving the full 3-year contract, the Appellant was deprived of future earnings such as salary and J20 gratuity and fringe benefits such as allowances and staff mortgage at staff rate. 6.20. In terms of the quantum of damages , it was submitted that in tandem with the case of Swarp Spinning Mills PLC v Sebastian Chileshe and Others 17 , the Court can in deserving cases depart from the normal measure of damages in wrongful and unfair dismissal cases where there are aggravating factors such as the dismissal being carried out in a traumatic fashion that causes the employee undue or mental suffering. The Appellant therefore prayed for a minimum of 36's months' salary, in line with the case of Dennis Chansa v Barclays Bank Zambia PLC20 . 6.21. It was further contended that the Appellant was entitled to special damages for wrongful and unlawful dismissal on the premise that there was breach of legitimate expectation. That there is sufficient evidence on record speaking to legitimate expectation which the Respondent breached. This is based on the assurances from the Human Resource Manager that the renewal of his contract was as good as done. It was contended that the trial court erred when it made a finding J21 that there was something more required to support the Appellant's testimony of assurances from the Director Risk. 6.22. That this is because corroboration was not mandatory here. Recourse was had to the High Court case of The People v Manroe21 , to demonstrate that the Court may act on the evidence of a single witness. Also, that it was a misdirection on the part of the Trial Judge to hold that only the assurances of the Director Credit would have legal effect, as there was no basis for this. Here, counsel contended that the above findings were perverse warranting this Court to interfere with the same. Solace was found in the case of Wilson Masauso Zulu v Avondale Housing Projects Limited15 . That the Appellant's testimony proved, on a balance of probabilities that he had been assured by both the Human Resource Manager and the Director risk that his con tract would be renewed. 6.23. For the standard of proof in civil matters, Counsel relied on the case of BJ Poultry Farms v Nutri Feeds Zambia Limited22 . Counsel also cited the High Court case of Heather Musariri v !School Zambia Limited23 , to posit that J22 assurance of renewal are sufficient to create legitimate expectation. 6.24. Turning to ground six (6) of the appeal, it was contended that the common law doctrine of changed substratum enunciated in the Canadian cases cited earlier is applicable to Zambia by virtue of Article 7 (e) of the Constitution of Zambia as amended by Act No, 2 of 2016 and Section 2 of the English Law (Extent of Application) Act, Chapter 11 of the Laws of Zambia . That Labour laws applicable to the Appellant's contract of employment included the principles of common law such as the doctrine of changed substratum. 6.25. Counsel went on to submit that by virtue of Section 36 (1) of the repealed Employment Act having recognised that a con tract can terminate under the provisions of the Act or otherwise, it opened the door for the applicability of common law principles of changed substratum. That therefore, the Court below fell in error by holding that the Canadian cases cited were merely of persuasive value and that the employment relationship between the Appellant and the Respondent were entirely governed by the repealed Employment Act. In view of the above, it was submitted that J23 the Lower Court should have applied the doctrine of changed substratum to find that the impugned contract ceased to apply the moment the Appellant was promoted to the position of Head Credit. 6.26. No arguments were proffered in relation to ground 8. It is therefore deemed abandoned. 6.27. In support of ground nine (9), it was submitted that the conversion of the Appellant's staff mortgage loan from a concessional rate of 10% to commercial rates was wrongful, because the termination of the Appellant's contract on the basis of effluxion of time was wrongful and unlawful. That according to clause 11.0 of the impugned contract, the Appellant was entitled to enjoy the staff mortgage for the remainder of his working life but not exceeding 20 years. That the Respondent having wrongfully cut short the Appellant's contract, they cannot be allowed to convert it to commercial rates. Counsel urged us to order that the Appellant's staff mortgage should remain payable at the concessionary interest rate of 10% for the remainder of the Appellant's working life or not more than 20 years from the impugned contract. J24 6.28. We were accordingly urged to find merit in the appeal and set aside the decision of the trial Court. 7. ARGUMENTS IN OPPOSITION TO THE APPEAL 7 . 1. Counsel for the Respondent equally filed into Court lengthy Heads of Argument on 1st December, 2022. Counsel made submissions in general and then responded to each ground of appeal. 7.2. In general, counsel submitted that the core issue in this appeal is whether the impugned contract was terminated or expired by effluxion of time. That the lower Court already made a finding of fact that the Appellant's contract of employment terminated by effluxion of time. That the Appellant has not met the threshold to warrant this Court to interfere with the above finding of fact of the Court below. Counsel cited the case of Augustine Kapembwa v Danny Maimbolwa and the Attorney General24 to highlight instances when an appellate Court can interfere with findings of fact of a trial Court. 7.3. It was also argued that other than the impugned contract, the Appellant did not produce any other contract that was executed by the parties. That the Appellant, with knowledge J25 that his contract was expiring on 31 st May, 2016 applied for renewal of his contract on 1st April, 2019. That on 4 th April, 20 19 the Respondent r esponded to the Appellant's application by informing him that his contract would not be renewed. That the Appellant responded by asking that he be placed on garden leave and for his staff mortgage to be converted to a commercial mortgage. The Appellant was subsequently paid his gratuity and accrued leave days. 7.4. According to the Respondent, the Appellant is in essence asking this Court to make a contract for the parties. Counsel cited the cases of National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo25 , Zesco Limited v Edward Angel Kahale26 , Colgate Palmolive (z) Inc v Abel Shemu Chuka and 110 Others27 , Henry Nsama and Others v Zambia Telecommunications Company Limited28 , Gildah Ngoma and Others v World Vision Zambia29 and the Learned author Evan Mckedrick's Contract Law, 2 nd Edition at page 6 , to demonstrate that parties to a contract of employment are bound by the terms they put for themselves and that the Court does not make a contract for the parties nor will it even improve it. It is thus J26 the Respondent's position that the Appellant's contract of employment was not terminated by the Respondent, but terminated by effluxion of time. 7.5. Coming to the grounds of appeal, in opposing grounds one, two and five , it was submitted that Appellant's promotion to the position of H~ad Credit did not entitle him to a new contract. That this is because the Appellant's impugned contract provided for promotion, (see page 59 of the Record of Appeal). That as a matter of fact, the Appellant even knew that he had not been awarded a new contract when he was promoted, as can be seen from his application for renewal of his contract on 1st April, 2019 and his acceptance of the non renewal of his contract. Additionally, the letter of promotion did not make provision for a new contract and thus the Court cannot make a n ew contract for the parties. 7.6. Further, that the Appellant failed to show proof that it was a practice within the Respondent's organisation that whenever an employee was promoted, they would be offered a new contract. That this was a finding of fact of the trial Court, which cannot lightly be r eversed by this Court. Reliance was placed on the case of Attorney General v Marcus J27 Kampumba Achiume30 , where the Supreme Court pronounced itself on the test for interfering with the findings of fact of a trial Court. 7. 7. Regarding the doctrine of changed substratum, the Respondent adopted the trial Court's position that this doctrine did not apply to the Appellant's contract because it was not recognised by the repealed Employment Act. Also, that the Canadian authorities being relied upon by the Appellant in support of this doctrine are merely of persuasive value. 7.8. Additionally, that the doctrine of changed substratum cannot take precedence over the expressed intentions of the parties as contained in the impugned contract of employment, the ZNBS Conditions of Service, the Letter of Promotion, Letter of Intention to Renew the Contract, Letter of Non-Renewal and Letter of acceptance of non-renewal. To stress this point, Counsel cited the case of Holme Limited v Build Well Construction Company Limited31 , where it was held that where parties have embodied the terms of their contract in written documents, extrinsic evidence cannot generally be J28 admissible to add to, vary, subtract from or contradict the terms of the written contract. 7. 9. Counsel also referred to the Learned Authors of Hals bury Laws of England, Volume 9, 4 th edition, to demonstrate that a term will not be implied in a contract to contradict any express term, and that a term will only be implied when on considering the whole matter in a reasonable manner, it is clear that the parties must have intended there to be the suggested stipulation. That in the present case, the Appellant was bound by the terms he had accepted at the time of his promotion to the position of Head Credit, and he subsequently accepted payment of gratuity. 7.10. The Respondent ruled out the applicability of the contra proferentum rule to the present case on the basis that there was no ambiguity as the intentions of the parties hereto can clearly be construed from the documents. 7. 11. It was further con tended that if the Appellant was aggrieved by the Respondent's decision not to offer him a new contract upon his promotion to the position of Head Credit, he should have registered his displeasure with the Respondent's management. Counsel referred us to the case of Dickson J29 Zulu and Others v Zambia State Insurance Corporation Limited32 , to posit that the failure of an employee to protest or raise issue to a change in the conditions of service amounts to acquiescence. 7. 12. In response to ground three of the appeal, it was argued that the claim for wrongful termination is untenable because the Appellant's contract of employment was not terminated by the Respondent, but rather expired due to effluxion of time. 7.13. Counsel adverted to the case of Care International Zambia Limited v Misheck Tembo3 3 , where the Supreme Court guided that wrongful dismissal occurs when an employer terminates the employment relationship contrary to the terms of the contract of employment. It was argued that expiration of contract constitutes a lawful mode of termination of con tract acknowledged by both the repealed Employment Act and the Employment Code Act No.3 of 2019. 7. 14. That there is no requirement for a notice of expiration to be issued, as the contract automatically terminates at the end of the term. Here, Counsel took refuge in the cases of Zambia Consolidated Copper Mine v James Matale 34 , Attorney General v Chibaya and Others35 and Gildah Ngoma and BO Others v World Visions Zambia29 , where it has held that a fixed term contract is determined at the conclusion of the period. Counsel also cited the case of Zambia Revenue Authority v Dorothy Mwanza36 , to posit that the decision to offer a new fixed term is at the discretion of the employer. 7.15. Regarding 3 months' notice of non-renewal or payment in lieu of notice thereof, it was submitted that in accordance with clause 2 of the impugned contract of employment, the Appellant who bore a duty to give 3 months' written notice of renewal before expiration, only applied for renewal on 1st April, 2019 for a contract that was set to expire on 30th June , 2019. That the Respondent communicated its decision on 4 th April, 2019, which was a b out 3 days later. 7. 16. In opposing ground four and seven of the appeal, it was submitted that the Appellant failed to prove that there was breach of legitimate expectation that his contract would be renewed because he failed to adduce evidence that the Director Credit gave him assurance of renewal of his contract. That if the Appellant had had legitimate expectation, he would not have readily accepted the non renewal by his letter of 10th April, 2019. In any case, it was Bl submitted , th at th e Appellant did n ot satisfy th e criteria for reasonable expectation set ou t in the case of Heather Musariri v ISchool Zambia Limited23 and Davis Evans Kasonde v Zambia Revenue Authority3 7 ; wh ich are that:- 1. Sign ificance of the contractual stipulations, agreements or undertakings by the employer; 11. Practice or custom in regard to renewal or the reason for concluding the fixed term contr act; 111. Any assurances that the contract would be renewed; 1v. Condu ct of the employer; v. Any failure to give notice of non-ren ewal; and v1. Incon sistent condu ct and failure to give r eason able n otice. 7 . 17. It was furth er su bmitted th at th e Appellant failed to prove his claim of m ental anguish relating to the manner h is contract of employmen t was terminated. That a claim for men tal anguish falls in the ambit of special damages and needed to be p leaded and proven at trial. In support, the cases of Attorney General v D. G. Mpundu 19 , Hayward and Another v Pullinger and Partners Limited3 8 ' Chief Bright Nalubamba and Zambia Co-operative Federation Limited J32 v Muliyunda Wakunguma Mukumbuta39 • Counsel further cited the case of Chilanga Cement pie v Kasote Singogo 16 , was cited to demonstrate that an award for torture or mental distress should be granted in exceptional cases where more than the normal measure of common law damages have been awarded. 7 .18. It was contended that in the present case, the Appellant's contract was not terminated by the Respondent, but it expired due to effluxion of time. Further, that the Appellant did not specifically plead and particularise the claim for mental distress nor did he adduce any evidence at trial to substantiate the same. 7.19. In relation to ground six of the appeal, the Respondent adopted the lower Court's position that the repealed Employment Act, which governed the Appellant's employment did not acknowledge the doctrine of changed substratum and that the Canadian cases being relied upon are merely of persuasive value to this Court. 7.20. It was also argued that a reading of Article 7 of the Constitution of Zambia as amended by Act No. 2 of 2016 and Section 2 of the English Law (Extent of Application) J33 Act, Chapter 11 of the Laws of Zambia, shows that English Common Law is subject to both the Constitution and other written laws. That in the present case, the common law doctrine of changed substratum was subject to the repealed Employment Act. 7.21. It was submitted that the Appellant is inviting this Court to rewrite the clear terms of the contract of employment which was freely and voluntarily entered into, under the guise of the doctrine of changed substratum. 7 .22. Counsel reiterated the position that the doctrine of changed substratum cannot su persede the expressed intentions of the parties through the impugned contract, letter of promotion, the Respondent's conditions of Service, Letter of Intention to Renew, Letter of Non-renewal and the response letter to the letter of non-renewal. 7 .23. In opposing ground nine of the appeal, it was submitted that the conversion of the Appellant's staff loan to a commercial loan after his contract terminated, was on firm ground. That this is because the benefit of paying staff loan at concessional rates was tied to the existence of the Appellant's contract of employment, in accordance with clause 11 of the impugne d J34 contract. That in fact, the Appellant, by letter dated 10th April, 20 19 voluntarily requested the Respondent to convert his staff loan into a comm ercial loan. That the staff loan was a fringe benefit enjoyable as an inciden ce of the Appellant's employment. Counsel cited the case of Hastings Obrian Gondwe v BP (Zambia) Limited40 , where the Supreme Court h eld that benefits that are enjoyable as an incident of employment end with the termination of the employment. That thus the Appellant had no legal right to con tinue enjoying this benefit after his contract terminated. 7 .24. We were thus urged to dismiss the entire appeal and uphold the decision of th e Court below. 8. ARGUMENTS IN SUPPORT OF CROSS APPEAL 8.1. In support of the sole ground of cross appeal, the Respondent contended that the Court below refused to grant it costs because the matter was an employment dispute. That the import of the said holding is that a successful party cannot be awarded costs for an employment matter commenced in the general list of the High Court. Counsel cited Order 40, Rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia (High Court Rules), to posit that the High Court J35 has power to grant costs. Similarly, the cases of Kuta Chambers (Sued as a firm) v Concillia Sibulo (Suing as Administratrix of the estate of the late Francis Sibulo)41 and Nsama and Others v Zambia Telecommunications Company Limited42 , were cited to demonstrate that costs are discretionary and follow the event. Also, that a successive party should be reimbursed for the expenses incurred in prosecuting or defending a matter. 8.2. It was submitted that in the general list, a successful party should not normally be deprived of costs, unless the successful party is guilty of wrongdoing or misconduct in the matter. Solace was found in the case of Y. B and F. Transport v Supersonic Motors43 and Afrope Zambia Limited v Chate & Others44 . In view of the above, it was submitted that the Court below fell in grave error when it did not award costs to the Respondent on the basis that the matter was an employment dispute. 8.3. In winding up, Counsel submitted that this Court has discretion to award costs on appeal where the Lower Court did not do so. Reliance was placed on the Learned Author on Civil Procedure in Zambia: Cases and Materials at page J36 1717 and Order 12 of the Court of Appeal Rules, S. I. No. 65 of 2016. 8.4 . We were accordingly urged to award costs to the Respondent both here and in the Court below. 9. ARGUMENTS IN OPPOSITION TO CROSS APPEAL 9.1. No arguments were filed in opposition to the cross appeal. 10. HEARING 10.1. At the hearing of this appeal on 15th August, 2024, both parties relied on the Heads of Argument filed into Court and briefly augmented the same orally. 10.2. In his oral submissions, Mr Zulu, Counsel for the Appellant submitted that this appeal hinges on the interpretation of the words 'subject to'. That this is because the Appellant was appointed to the position of Business Development Manager 'subject to' promotion. 10.3. That the literal meaning of the words 'subject to' entailed that the Appellant would only remain on a 3-year contract as a Business Development Manager if not appointed to a higher position. That once he was appointed to a higher position, his designation changed and so did the duration of the contract. That therefore, his higher position could not be terminated J37 based on the 3 years applicable to the impugned contract of employment. 10.4. Counsel also highlighted what he termed as a biased review of evidence by the trial Judge. That on page J 4 7, the Court below concluded that the Appellant was to give a 3 months' notice on intention to renew his contract, contrary to what had been cited by the Court. He also highlighted that the Lower Court's finding that the Appellant did not prove that he was not paid in lieu of notice was erroneous as this issue was not contested at trial. Another example picked was with regard to the finding that the Director Risk gave him assurance of renewal of his contract of employment. That there was therefore no need to insist on something more, other than the Appellant's own testimony, which he stated was unshaken in cross examination. 10.5. Mr Chomba, Counsel for the Respondent submitted that at the core of this appeal is whether an employee whose contract of employment has expired by effluxion of time can then turn around and claim that the contract was terminated contrary to the evidence on the record. Counsel then recited his arguments in the Heads of Argument which we have J38 already captured in this judgment, save to emphasise that the Appellant wants this Court to formulate a contract for him, contrary to what the parties had agreed upon. That it is not the duty of the Court to formulate a contract on behalf of the parties. Rather, the Court's duty is to enforce the contract as expressed by the parties. Counsel prayed that the appeal is dismissed with costs to the Respondent, both in this Court and in the Court below. 10.6. In reply, Mr Zulu submitted that the issue is not of rewriting the contract, but interpreting the legal effect of the actions of the parties and the documents they executed. 10. 7. In relation to the Cross Appeal, the Respondent entirely relied on the documents on the record and there were no arguments from the Appellant. 11. ANALYSIS AND DECISION 11. 1. We have carefully considered the Record of Appeal, grounds of Appeal as well as both parties' spirited arguments. We shall deal with grounds 1, 2, 5, and 6 together as they relate to the same subject matter. The rest of the grounds of appeal will be handled in the manner they have been presented. J39 11. 2. The core issue in grounds 1, 2, 5 and 6 of this appeal as we perceive it, is whether the promotion of the Appellant from the position of Business Development Manager to Head Credit constituted a fresh 3-year fixed term contract of employment or was governed by the initial contract of Business Development Manager which the Appellant signed. 11.3. The Appellant's position is that the promotion to the Position of Head Credit constituted a new 3-year fixed term contract based on the letter of promotion, the Respondent's Corporate Terms and Conditions of Service and the common law principle of changed substratum. The Respondent's counter view is that the promotion did not constitute a fresh 3-year contract as the Appellant's contract of employment as a Business Development manager was subj ect to promotion. 11.4. The starting point is that parties to a contract of employment are bound by the terms of the contract which they have freely and voluntarily entered into while the role of the Court is to enforce the contract. Thus, in the case of Printing and Numerical Registered Company v Simpson45 , it was decided as follows: " ... 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 held sacred and shall be enforced by Court of justice." Similarly, in the case of National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo 25 , the Supreme Court of Zambia had this to say: "it is trite law that once the parties have voluntarily and freely entered into a legal contract, they become bound to abide by the terms of the contract and the role of the Court is to give efficacy to the contract when one party has breached it by respecting, upholding and enforcing the contract." 11.5. In the present case it is uncontested that the Appellant did not sign any new contract when he was moved to the position of Head Credit. Rather, there is only one contract, which he signed when he was appointed Business Development Manager. It is cardinal at this point to examine the impugned contract of employment which the parties signed, the applicable Terms and Conditions of Employment, the Letter of Promotion and any other documents, upon which the Appellant presumes existence of a fresh 3 -year contract for J41 the position of Head Credit. We shall begin with the recitals to the impugned contract of employment which read as follows: WHEREAS the employee is employed by the Society as BUSINESS DEVELOPMENT MANAGER subject to possible future re-designation, promotion, change of appointment or otherwise, at the discretion of the society. 11.6. Before delving into the meaning of the above clause, we pause here and highlight the principles that guide our interpretation of a contract and indeed of any other document. In accordance with the Supreme Court of Zambia case of Henry Nsama and Others v Zambia Telecommunications Company Limited28 and English case of Melanesian Mission Trust Board v Autralian Mutual Provident Society1 , the words used in a document must be assigned their natural and ordinary meaning. The Court should look at the document as a whole and examine the context of the words used. Only when there is an ambiguity should the ordinary meaning of the words be abandoned and resort be had to other rules such as the J42 contra proferentum rule enunciated in the case of Indo Zambia Bank Limited v Mushauka Muhanga5 and Ringford Habwanda v Zambian Breweries4 . 11. 7. In view of the above principles, a reading of the ordinary words used in the recitals above shows that the position of Business Development Manager under which the Appellant was being employed was made 'subject to' promotion, re designation, change or appointment. It is clear that what is being made subject to promotion, re-designation, or change of appointment is not the contract itself but the Appellant's position as Business Development Manager. 11.8. As to the meaning of 'subject to', we find some guidance in the Indian Supreme Court case of South India Corporation (P) Ltd v The Secretary, Board of Revenue, Trivandrum and Another46 , where it was held as follows: The expression 'subject to' conveys the idea of a provision yielding place to another provision or other provisions to which is made subject. 11.9. The Supreme Court of Zambia, in the case of Hakainde Hichilema v the Attorney General47 , endorsed the above definition when it stated that when a provision of the J43 Constitution or any other enactment is made 'subject to' another provision, it entails that such provision shall yield to the other provision to which it is made subject. 11.10. In view of the above authorities , our view is that by making the position of Business Development Manager 'subject to' promotion and re-designation, in this context, meant that there was a possibility of the Appellant's position of Business Development Manager being altered or changed through a promotion, re-designation or change of appointment during the subsistence of that contract of employment. 11.11. This takes us to Clause 1.0 of the impugned contract, which the Appellant argues that its duration was only applicable to the position of Business Development Manager. Clause 1.0, states as follows : 1.0 Duration of Contract That the employee shall be appointed to his present post BUSINESS DEVELOPMENT MANAGER under the employment contract starting on 1st day of July 2016 for a term of three years to 30th June, 2019, thereafter subject to renewal upon mutual consent of the parties. J44 11.12. Clause 1.0 above must be read together with the recitals above. This is in view of the principle stipulated above, that the Court should look at the document as a whole and examine the context of the words used. 11.13. A reading of the 2 clauses shows that the Appellant was to serve in the position of Business Development Manager for a period of 3 years, subject to possible renewal. However, during that 3-year period, the Appellant's position may be changed by way of promotion or re-designation. In other words, according to these clauses, a promotion would affect the Appellant's position and not the duration of the contract of employment. This implies that where the Appellant's position of Business Development Manager was changed by way of promotion, re-designation or change of appointment as the case may be, the Appellant would serve in the new position for the remainder of the initial 3 years applicable to the position of Business Development Manager, subject to possible renewal. Thus, clause 1.0 above does not in any way suggest that when the Appellant is promoted, a new 3-year contract would come in place, as suggested by the Appellant. J45 11. 14. We now turn attention to the issue of the promotion to the position of Head Credit. It 1s uncontested that notwithstanding that the Appellant underwent the normal recruitment process of applying for the position and undergoing interviews, he was not given any fresh contract of employment when he was promoted to the position of Head Credit. Rather, what the Appellant was given was a letter of promotion, whose salient features read as follows: With reference to the interviews you attended on 1st August, 2018 for position of Head Credit, I am pleased to inform you that you have been promoted to the position of Head Credit with effect from 23rd August 2018. In line with the renumeration policy, your monthly basic salary is K26, 841.00 and you will be entitled to other terms of employment in Grade ZNBS 3 of the Society Salary Grading Structure contained in the current Corporate Terms and Conditions of Employment. The Position of Head Credit is based at the Head Office and you will report to Director Risk . . . . . Kindly signify your acceptance of the job offer by executing a copy hereof not later than seven (7) days from the date hereof. 11.15. The above letter of promotion was written in very clear terms to signify that the Appellant was merely being promoted to the position of Head Credit. There was no J46 mention of any new contract of employment. This letter when read in the context of the recital and Clause 1.0 above, it is apparent that this promotion was envisaged in the contract of employment and its life span was attached to the remainder of the 3-year fixed term contract. 11.16. The Appellant contends that because the letter of promotion stipulated that the Appellant would be entitled to the other terms in ZNBS Grade 3, it meant that the Appellant was supposed to serve at least three years in this position. That this is because Clause 3.1.1 . of the Respondent's Corporate Terms and Conditions of Employment 201 7 provides that staff members in Grades ZNBS l-ZNBS4 are entitled to a 3-year fixed term contracts of employment. That by use of the word 'contracts' as opposed to 'contract' meant that each time a management staff moved to a different grade, they were entitled to a fresh 3-year contract of employment. We have not been persuaded by this argument. For the avoidance of doubt, we find it imperative to reproduce clause 3. 1. 1. below: J47 3.1.1. Management staff in grade ZNBS1-ZNDS4 shall be employed on fixed-term contracts of up to three (3) years. 11.1 7. We have carefully analysed the context in which the word 'contracts' has been used. Clearly it is just an issue of semantics here. The clause begins with phrase 'management staff' which is a collective term referring all employees in management. By virtue of the phrase 'management staff' being plural it follows that the word 'contracts' as used here refers to the various contracts on which employees in management would be employed on. It does not in any way suggest that every time an employee in management moves to the next grade, from ZNBS1-ZNBS4, they are entitled to a fresh contract of up to 3 years. Additionally, by use of the phrase 'up to 3 years' the clause merely sets the maximum number of years a fixed term contract for an employee in management should be, namely 3 years. It does not set the minimum number of years for a fixed-term contract for staff in management, as suggested by the Appellant. 11.18. In any case, this clause talks about management staff in Grade ZNBSl- ZNBS4 being employed in the said grades. The J48 Appellant was not being employed in Grade ZNBS 3. Rather, he was being simply promoted to a position in that grade, signifying the continuation of his service with the Respondent. As the record shows the Appellant was already a management staff at the time of his promotion to Head Credit. This is because the position of Business Development Manager under which he was employed was in Grade ZNBS4. 11.19. We therefore find no ambiguity in clause 3.1.1. of the Respondent's Corporate Term and Conditions of Employment, to warrant invoking the contra proferentum rule , as argued by the Appellant. 11.20. The upshot of our findings above is that the Appellant's claims that the impugned contract of employment, the letter of promotion and the Respondent's Corporate Terms and Conditions show that the Appellant's promotion to Head Credit constituted a fresh contract of contract are devoid of merit. 11.21. This only leaves the issue of the common law doctrine of changed substratum, under this thread. The Appellant's contention in this regard is firstly that, this common law doctrine is applicable to J49 the Appellant's contract of employment. Secondly, that according to this doctrine, where the significant terms of an employee's contract of employment have remained the same but the significant responsibilities and pay have significantly changed, a n ew contract is deemed to have come in place, with a new duration while the initial contract ceases to apply. The Respondent on the other hand does not seem to contest the effect of the said doctrine. Rather, the Respondent's contest is the applicability of the said contract to the Appellant's contract of employment. 11.22. We have given due consideration to the parties' varying positions. We have also carefully examined the Canadian cases of Wallace v Toronto-Dominion Bank8 , MacGregor v National Home Services9 , and Irrcher V MI Developments 10 • Without even delving into whether the doctrine of changed substratum was applicable to the Appellant's contract of employment, it is clear that the Appellant is misguided. A reading of the above Canadian authorities show that what the doctrine of changed substratum does is to nullify a termination clause in the initial contract. It does not in any way create a new c ontract JSO with new contract duration. The rationale for this, as noted by the Court in Wallace v Toronto-Dominion Bank8 , is that due to increased responsibilities , or rising through the ranks to a more senior position, it would be unfair to allow the original contract, intended for junior employment, to limit notice to a person who has become a senior employee. Similarly, in Irrcher v MI Developments 10 , the Court of Appeal noted that because the employee's responsibilities were dramatically greater, his remuneration was greater, his method of remuneration had changed and so was the title , it was simply not the same job. The Court awarded the employee 18 months' notice for dismissal. 11.23. In MacGregor v National Home Services9 , Justice Perell, noted that where there is a changed substratum, the notice provisions in the original contract should be nullified. The present appeal does not involve a termination or notice clause, as the Appellant's contract did not terminate by notice but by effluxion of time . Rather it relates to the duration of the contract. On that basis, the doctrine of changed substratum does not apply in the circumstances. JSl 11.24. In any case, the common law doctrine of changed substratum can be ousted by a written contract where it expressly provides that its prov1s10ns, including its termination provisions, continue to apply even if the employee's position, salary or benefits change. This view was expressed in Miller v Convergys CMG Canada Limited Partnership48 . In the present case we already found elsewhere in this Judgement that going by the recitals and Clause 1.0 of the impugned contract of employment, there was an express provision that the duration of the impugned contract would continue to apply to a promotion. Therefore, the doctrine of changed substratum was ousted by the said provisions. We thus find no merits in the arguments relating to the doctrine of changed substratum. 11.25. It follows that we do not find merit in Grounds 1, 2 , 5 and 6 and we accordingly dismiss them. 11.26. We now turn attention to ground 3 of the appeal. The kernel of this ground of appeal is two-fold. Firstly, that the Respondent wrongfully terminated the fresh contract of employment by not giving 3 months' notice or payment in lieu of notice. Secondly, that the Respondent did not comply with J52 the renewal clause which required the Respondent to give at least 3 months' notice of non-renewal. 11 .27. We have considered these arguments. On the issue of notice or payment in lieu of notice, the Appellant's view is that he was entitled to 3 months' notice of payment in lieu of notice for the purported fresh contract for the position of Head Credit. Here, we have already found that there was no fresh contract and that the Appellant's employment was terminated by effluxion of time. There was therefore no requirement for notice or payment in lieu of notice. This claim fails. 11.28. The second limb of this argument is that the Respondent did not comply with the requisite notice of non-renewal. That the Respondent did not give the Appellant 3 months' notice of non-renewal. This is based on Clause 6.2.2 of the Respondent's Terms and Conditions of Employment, which obligated the Respondent to communicate the decision to renew or not renew at least 3 months before the expiry of contract. J53 11.29. This Clause must be considered side by side with Clause 2.0 of the impugned contract of employment, alluded to earlier. The Appellant was required to give a notice of intention to renew the contract 3 months prior to the expiration of the contract. However, the Appellant only gave notice of intention to renew on 1st April, 2019 less than 3 months to the expiration of contract. The Respondent in turn responded on the 4 th of April, 2019 with a non-renewal letter. It would be absurd in the circumstances to expect the Respondent to communicate the decision not to renew the Appellant's contract 3 months prior to expiration when the application for renewal was not made 3 months prior to the renewal. In the above circumstances, we find no breach of the non-renewal notice period. 11 .30. Thus, ground 3 of the appeal 1s bereft of merit and 1s accordingly dismissed. 11.31. This takes us to grounds 4 and 7. The crux of these grounds of appeal is that the Appellant should have been awarded special damages for mental anguish in view of the manner the contract of Head Credit was terminated. The main argument advanced is tha t the Respondent refused to JS4 renew the Appellant's contract after giving him assurances from the Human Resources and the Director Risk. 11.32. The Respondent on the other hand contends that the Appellant failed to prove that he received assurance from the Director Risk, as that was the only person who could make valid assurances. Also, that the Appellant's conduct after receiving a letter of non-renewal shows that he had no legitimate expectation of renewal of his contract. That he readily accepted the non-renewal by a letter dated 10th April, 2019. 11.33. This Court dealt with issue of legitimate expectation in employment in the case of Zambia Electronic Clearing House Limited v James Kalengo49 . In that case, this Court referred to the case of Communication Authority v Vodacom50 , where the Supreme Court of Zambia established that legitimate expectation arises where a decision maker, such as an employer, makes representation or leads someone to believe that they will receive or retain a benefit or advantage, including that a hearing will be done before a decision is taken. In such a scenario, such decision maker or JSS employer is estopped from going back on his well-founded affirmation or representation. 11.34. We note that the Appellant 1s inviting this Court to interfere with the findings of fact of the trial Court on this issue. It is trite that an appellate Court will not easily interfere with findings of fact by a trial Court unless it is satisfied inter alia that the findings in issue were perverse or made in the absence of any relevant evidence or upon misapprehension of facts. The case in point is Attorney General v Achiume51 . 11.35. According to the Appellant, the lower Court's findings on legitimate expectations were perverse in that it disregarded the Appellant's testimony that he received assurance from both Human Resource and the Director Risk. And that the trial Judge insisted on corroboration when that is not the case. Also, that, the trial Court's view that it was only the Director Risk who was capable of giving valid assurances was a misdirection as the Human Resource is also capable of giving valid assurances. 11.36. We have carefully perused through the record of appeal. It is evident that the Trial Court in coming to its decision first J56 considered the case of Nsansa School Inter-Educational Trust v Gladys Mtonga Musamba52 , where the Supreme Court held that despite the Respondent having received verbal assurance from two directors that the board would renew her contract, she could not have legitimate expectation as h er last renewal was in writing. The Court found that the Appellant in this case only had a written Contract. It also found that it was only the Plaintiff's word that he h ad received assurance from the Director Risk regarding renewal of his contract. The Lower Court further found that although Respondent in its defence admitted that Human Resource gave the Appellant assurance of renewal of his contract, it was only the Director Risk who had power to speak on behalf of the Respondent. That the Appellant failed to prove that h e had received assurance from the D irector Risk. However, there is no eviden ce that he received assurance from Director Credit. 11.37. We note that the trial Judge's finding that it was only the Director Risk who could give valid assurances was based on the Appellant's Memorandum for renewal, wh ich was addressed to the Director Risk. The record does not show any J57 .. other evidence in support of this finding. However, we have observed that the Letter of promotion to the Position of Head Credit, was addressed to the Appellant from Human Resource. This shows that Human Resource also had a hand in the Appellant's employment, especially in view of the fact that the letter promoting him to the position of Head Credit, came from Human resource. We are therefore of the view that the trial Judge's finding that it was only the Director Risk who could make valid assurance of renewal is not supported by the evidence on record. 11.38. We therefore agree with the Appellant that this is an appropriate case to interfere with the findings of facts by the trial Court. We accordingly set aside the finding that only the Appellant would give valid assurances of renewal. 11.39. In view of the above it follows that the assurances of renewal from the Human Resource would be sufficient to constitute legitimate expectation. 11 .40. We also wish to distinguish the case of Nsansa School Inter-Educational Trust v Gladys Mtonga Musamba52 , from the present one. In that case the Respondent had a contract renewed in writing prior to the representations from J58 • two directors about her renewal, which never materialised. It was therefore justified that she could only expect renewal in writing. In the present case, the Appellant was renewing the contract for the first time. Therefore, verbal assurances of renewal of his contract may suffice to create a legitimate expectation. 11.41. The above notwithstanding, the appellant's conduct does not show that as a result of the representations he received from Human Resource , he had legitimate expectation that his contract would be renewed. This is so because, when the Appellant received a letter of non-renewal of his contract, he did not contest the non-renewal nor did he ever raise the issue of legitimate expectation. 11.42. Rather he embraced the non-renewal and even thanked the Respondent for the opportunity he had. 11.43. Additionally, it took the appellant about a year for him to register his grievances through a letter of demand. Clearly, the Appellant's conduct is not consistent with someone who had legitimate expectation. On that basis, the Appellant failed to prove that he had legitimate expectation that his contract would be renewed. JS9 11.44. In any case, Clause 2.0 of the impugned contract of employment required the Appellant to give a written notice of intention to renew his contract 3 months before the expiration of con tr act and not within 3 months. In the present case the Appellant gave a notice of intention to renew his contract on 1st of April, 20 19 . The Contract was due to expire on 30th June, 2019. What is apparent from this is that the Appellant's notice of intention to renew his contract fell below the time stipulated in the contract as it was done within 3 months from expiration of contract. In view of all the above factors, the Appellant's claim for breach of legitimate expectation cannot stand. 11 .45. Coming to ground 9 of appeal, it is clear that the staff loan at concessional interest rates was a fringe benefit the Appellant enjoyed incidental to his contract of employment. In accordance with the Supreme Court decision of Hastings Obrian Gondwe v BP (Zambia) Limited40 , it ended when his contract terminated by efflu xion of time. We therefore find no merit in this ground of appeal. 11.46. The net effect is that the Appeal is devoid of merit and is dismissed in its entirety. J60 • 11.4 7. Turning attention to the Respondent's cross appeal, it is evident that this sole ground challenges the refusal of the trial Judge to award costs to the Respondent on the basis that the matter was an employment dispute. 11.48. It is trite that a successful party should not normally be deprived of costs unless, there is good reason not to do so, as per the Supreme Court decision of Afrope Zamba Limited v Chate & Others44 . Unlike the Industrial Relations Division of the High Court, the High Court is empowered by Order 40 Rule 6 of the High Court Rules, to award costs. Costs are of course in the discretion of the Court. However, the Supreme Court in the case of Rosemary Bwalya, the Attorney General and the Commissioner of Lands v Mwanamuto Investments Limited53 , guided that discretionary power must be exercised judiciously and for good and convincing reasons. 11.49. In the present case, we do not agree that an employment dispute excludes the general list of the High Court from granting costs. We agree with the Respondent that the reason advanced for not granting cost were not supported at law. In view of this , we find merit in the cross appeal. J61 • 12 . Conclusion 12 .1 We find no merit in all grounds of appeal. We thus dismiss it. 12.2 On the other hand we find merit in the cross appeal. We accordingly award cost to the Respondent h ere and in the Court below, to be taxed in default of agreement. M. M. KONDOLO,SC COURT OF APPEAL JUDGE B. M. Majula COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE J62