Chibuluma Mines Plc v Gospel Mulambya (Appeal No. 95 of 2017; CAZ/8/18/2017) [2018] ZMCA 625 (10 August 2018)

IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 95 of 2017 HOLDEN AT NDOLA (Civil Jurisdiction) CAZ/8/18/2017 AND GOSPEL MULAMBYA RESPONDENT APPELLANT Coram: Chisanga, JP, Chishimba and Sichinga, JJA On 21 st February, 2018 and 10th August, 2018 For the Appellants: Mr. A. Imonda of Messrs A. Imonda and Company For the Respondent: Mr. T. Chabu of Messrs Terrence Chabu and Company JUDGMENT Sichinga, JA, delivered the Judgment of the Court Cases referred to: 1. Augustin Kapem.bwa v. Danny Maim.bolwa and Attorney-General SCZ Judgment No. 4 of 1981 2. Dorothy Mutale & Another v. The People (1997) ZR 51 (SC) 3. David Chingele and 5 Others v. Core Ltd SCZ Judgment No. 2 of 4. Zambia Privatisation Agency v. Matale (1995-1997) ZR 157 (SC) 5. Surrey County Council and another v. Bredero Homes Ltd (1993) 3 ALLER 705 6. The Attorney-General v. Mpundu (1984) ZR 6 (SC) 7. A. J. Trading Ltd v. Chilombo (1973) ZR 55 (HC) 8. Carver Joel Jere v. Dvr/Sgt Shamayuwa and Attorney-General (1978) ZR 204 (SC) 9. Zambia Electricity Supply Corporation Ltd v. Redlines Haulage Ltd (1990-1992) ZR 170 (SC) 10. Chilanga Cement Plc v. Kasote Singogo (2009) ZR 122 (SC) 11. Lawrence Mpundu Mwalye v. Bank of Zambia (2010) 2 ZR 387 (SC) 12. Kajimanga v. Chilemya SCZ Judgment No. 50 of 2014 (SC) 13. Union Government v Vianini Ferro-Concrete Pipes (Pvt) Ltd 1941 AD 14. Attorney-General v. Marcus Kampumba Achiume (1983) ZR 1 (SC) 15. Attorney-General v. Peter Ndhlovu (1986) ZR 12 (SC) Legislation referred to: 1. The Employment Act, as amended by Act No. 15 of 1997 2. The Employment (Amendment) Act, No. 15 of 2015 3. The Acts of Parliament Act, Chapter 3 of the Laws of Zambia 4. Industrial and Labour Relations Act Cap 269 Laws of Zambia 5. High Court Rule Cap 27 Laws of Zambia 6. Rules of the Supreme Court of England (White Book), 1999 Edition This is an appeal against the judgment of the High Court delivered on 7 th July, 2017. The respondent's claim was for inter alia damages for breach of contract of employment; an order for compensation for loss of earnings equivalent to 8 months' salary; a -J2- declaration that he was declared redundant; and an order for payment of redundancy benefits equivalent to 2 months' salary for each year served pro rata. The High Court found in favour of the plaintiff, who is the respondent before us in this appeal. The facts before the lower court were that the respondent was employed by the appellant as an Artisan Boiler Maker from 2000 to 2011 , the year he attained 55 years and was retired. The respondent was then placed on yearly contracts from 30 th May, 2011. These were renewed annually, the last of which was for the period 30th May, 2015 to 29 th May, 2016. On 27 th August, 2015 whilst he was in his third month of the contract, the respondent received a letter terminating his services. He was availed 30 days ' notice which expired on 30 th September, 2015 . The respondent's contention was that according to his contract of employment the notice period for termination was three (3) months. He also complained that other employees got a better separation package than he did. The trial Judge first considered whether the plaintiff was entitled to a redundancy package equivalent to 2 months' salary for each year served pro rata. The court found that he was not entitled to a redundancy package as he did not have his employment transferred from one employer to another. The trial Judge observed that Section 26B of the Employment Act 1 as amended by Act No. 15 -J3- of 1997 was not applicable to the appellant's case as it only applies to oral con tracts. The trial Judge further observed that there was a difference on the conditions of service between those employees who were on permanent job establishment conditions of service and those who were on fixed-terms of contract. The court found that the respondent had individually entered into a contract with the appellant on terms agreed upon. That the said contract was amenable to termination upon effluxion of time or at the expiry of the term for which it was expressed to be made or as it was expressed by the termination of the contract. Secondly, with respect to damages for breach of contract and compensation for loss of earnings the trial court found that there were discrepancies between the letter of renewal of contract dated 21 st May 2013 and subsequent renewal letters dated 2 nd June, 2014 and 13 th May, 2015. The court observed that the letterhead in the earlier letter was different from the latter letters. Further that the respondent had not consented to reducing the termination notice period from 3 months to 30 days. Therefore the appellant had breached the contract by terminating using a wrong termination notice of 30 days instead of 3 months. Thirdly, on whether the respondent was entitled to compensation for loss of earnings, the court below found that the respondent was -J4- entitled to 8 months loss of salary. The court further found that the respondent was entitled to damages for breach of contract with interest at 10% from the date of the writ to the date of judgment and thereafter at 6% until the whole amount is discharged. Dissatisfied by that judgment, the appellant has now appealed advancing five (5) grounds of appeal styled as follows: GROUND ONE The Judge in the court below erred in law and fact when she analysed the respondent's contract renewals using section 28B of the Employment (Amendment) Act No. 15 of 2015 on page J7 lines 3-22 of the judgment because the said amendment Act was only assented to on 26 th November, 2015 and came into effect on 3 rd December 2015, long after the respondent's employment with the appellant terminated on 30th September, 2015. GROUND TWO The Judge in the court below erred in law and fact when she stated on page Jl 1 lines 13-20 of the judgment that "I find that the discrepancies between the letter at page 1 and those at pages 2 and 3 of the Defendant's Bundle of documents have remained unsubstantiated neither has the alterations on the dates on page 1 been satisfactorily explained such that the attesting witness indicated 3 rd June 2013, the others indicated 22nd March, 2013 and -JS- 22nd May, 2013." The letterhead used is also questionable, as to why it had departed from the ones on pages 2 and 3 because in assessing or evaluating the evidence, the Judge failed to take into account some matters which she ought to have taken into account. GROUND THREE The Judge in the court below misdirected herself in law and fact when she stated on page J 11 line 21-23 and page J 12 line 1-7 of the judgment that "I would agree with the plaintiff's counsel that the plaintiff's explanation be relied upon because he could not have entered into a contract with terms worse off than the one he had entered indicated on page 1 of the plaintiff's Bundle of documents. I would agree with him that he had not consented to reducing the termination notice from 3 months to 30 days because the respondent agreed that he received the letter dated 21 st May 2013, signed it and the termination clause in the contract was an equity or equality clause giving both parties equal rights." GROUND FOUR The Judge in the court below erred in law and fact when she stated on page J12 line 6-7 of the judgment that the Appellant breached the contract by terminating it using a wrong termination notice of 30 days instead of 3 months because in assessing or evaluating the evidence , the Judge failed to take into account the evidence clearly indicating that the Respondent acknowledged that he received the -J6- letter dated 21st May 2013 and signed it and the termination clause in the contract was an equity or equality clause giving both parties equal rights. GROUND FIVE The Judge in the court below misdirected herself in law when she stated on page J12 line 16-18 of the judgment that "he is also entitled to damages for breach of contract, with interest at 10% from the date of the writ to the date of judgment and thereafter at 6% until the whole amount be discharged" because this award offends against the principle of unjust enrichment as it is a duplication of the earlier award of 8 months loss of salary for breach of the same contract appearing on page J12 line 6-15 of the judgment. Dissatisfied with the judgment, the respondent cross-appealed advancing the following grounds: GROUND ONE OF CROSS-APPEAL The court below erred in law and fact when she held that the respondent was not entitled to any redundancy package on the ground that the Respondent's evidence on record and the reason given in the letter dated 27 th August 2015, namely the Appellant's financial position and the implications of the business environment, justified one month's salary for each year served or pro rata. -J7- GROUND TWO OF THE CROSS- APPEAL The Court below erred in law and fact when she held that the Respondent's terms of conditions of service were different from the 163 employees who were on permanent job establishment and were declared redundant on the ground that no terms of conditions were produced before court to prove that the conditions of employment for the 163 employees who were declared redundant in the same year were different from the Respondent's. GROUND THREE OF THE CROSS-APPEAL The court below erred in law and fact when she held that the reason for contracting the respondent was to "groom young ones" on the ground that extrinsic evidence was inadmissible to vary or add to the employment contract for the Respondent. The appellant filed heads of argument in support of the appeal on 3 rd October, 2017. Under ground one , it is submitted that since the Employment (Amendment) Act No. 15 of 20152 was assented to on 26 th November, 2015 and came into effect on 3 rd December, 2015 , long after the respondent's employment with the appellant terminated on 30 t h September 2015 , the lower court misdirected itself when it found that the respondent was engaged on a fixed term contract because the short-term contract he was employed under was renewed a number of times as stipulated by section 28B of the said Act. In support of this position, we were referred to -JS- section 10 (1) of the Acts of Parliament Act3 which provides a prescription for the date of commencement of an Act. The appellant's counsel submitted that although the analysis based on the amended Act is not the basis of the judgment, ground one merely goes to show that the starting paint in delivering the judgment was not from a firm foundation, which affected the finding on interest. With respect to ground two, it is argued that there are no discrepancies between the letter of renewal dated 21st May, 2013 and the subsequent letters of renewal dated 2 nd June, 2014 and 13th May, 2015. That the only difference, which is not a discrepancy, is that the former addresses the issue of termination notice period while the latter letters do not make reference to it because it was resolved when the respondent endorsed his signature accepting one month's written termination notice on the letter dated 21 st May, 2013. It is submitted that the alterations on the date as well as the differing dates of 3 rd June 2013, 22 nd March 2013 and 22 nd May 2013 are insignificant or immaterial to the issue. As regard the difference in the letterheads used, it is contended that the subsequent letters after 21 st May, 2013 departed from the past letterhead. That a company will change its letterhead from time to time. Learned counsel argued that the issue of the letterhead was -J9- an irrelevant consideration to the determination of this matter. We were urged to interfere with the lower court's finding of fact in accordance with the principles enunciated in the case of Augustine Kapembwa v. Danny Maimbolwa and Attorney-General1 , and thus allow this ground. Grounds three and four were argued together. Learned counsel for the appellant argued that the alteration of the termination clause for either party to give the other one month 's written notice was not advantageous to any one of them , as neither party became better off nor worse off than the other. It was counsel's further submission that the respondent was not a credible witness as he gave conflicting positions on one subject. That in cross-examination the respondent told the court that he received the letter dated 21 st May, 2013 , accepted and signed it. Whilst in re-examination, he took a different position stating that a paragraph in the letter had been inserted. In support of this submission the case of Dorothy Matale and another v. The People2 was cited where the Supreme Court held that: "When a witness tells a lie on one aspect of his evidence, the weight to be attached to the rest of his evidence is greatly reduced." -JlO- With respect to ground four, it is argued that there was no breach of contract by the appellant because the three months termination clause in the contract of employment was replaced by one month with the acquiescence of the respondent when he signed the letter dated 21 st May, 2013. In ground five, it is submitted that the award of damages for breach of contract is a duplication of the earlier award of 8 months' salary for breach of the same contract. At the hearing of the appeal, Mr. Imonda, learned counsel for the appellant buttressed his arguments in grounds two, three and four together. Counsel contended that these grounds all relate to the issue of consent in the reduction of the termination period. He submitted that the respondent acknowledged and accepted the letter of 21 st May 2013 amending the termination clause of his contract of employment. Counsel submitted that the lower court failed to take into account the evidence that the respondent acknowledged and accepted the alteration to the termination clause. Counsel further submitted that the credibility of PWl was an issue. That in his submission in the court below the respondent was asking for a redundancy package. -Jl 1- On ground 5 relating to duplicity of awards , Mr. Imonda argued that the respondent was awarded 8 months ' salary for breach of contract, and in addition, damages. Counsel submitted that this offends the principle of unjust enrichment. For this we were referred to the case of David Chingele and five others v. Core Ltd3 where it was held inter alia that damages would not be granted to give rise to the same relief. Counsel submitted that in this case compensation and damages were one and the same thing. The respondent relied on heads of argument filed on 29 th December, 201 7 and oral submissions by counsel. In response to ground one , it is submitted that the same should be dismissed on the ground that the trial court's reference to the Employment (Amendment) Act supra was not the basis of the main decision of the judgment appealed against, and as such it would be otiose to use it as the basis for upholding the appeal b y the appellant. It is further submitted that the reference to the said Act could only have been material if the court below had held that the respondent had been deemed to have been in permanent employment as envisaged by section 28C(2) of the Employment Act supra as amended by Act No. 15 of 2015 which provides that where an employee engaged on a fixed term contract of service continues 1n employment with the same employer after the expiration of the prescribed cumulative period, the contract of service shall be deemed to be a permanent contract. It is submitted -J12- that the Act is not the basis of the judgment and as such ground 1 should be dismissed as immaterial. With respect to grounds two , three and four , it is submitted that the court below correctly found as a fact that the letter of 21 st May, 2013 was questionable, had discrepancies which were unsubstantiated and had alterations of the dates which were unsatisfactorily explained. The discrepancies included three dates endorsed on it alterations which were not signed for by the respondent. Counsel submitted that the court below correctly found the respondent's explanation was reliable because he could neither have entered into a contract worse off than the first one he had entered into nor consented to reducing the termination notice from 3 months to 30 days . On the findings on claims for breach of contract and compensation for loss of earnings for the remaining contract period of 8 months , it is submitted that the lower court was on firm ground given that the appellant breached the contract by terminating it giving one month notice instead of three months' notice as set out in the contract on record. That the lower court's position is affirmed by the case of Zambia Privatisation Agency v. Matale4 with regard to termination by notice and damages measured by loss of salary for the remainder of a fixed term of employment. In supporting the lower court's findings we were referred to the cases of Surrey -Jl3- County Council and another v. Bredero Homes Ltd5 and The Attorney-General v. D. G. Mpundu 6 which proclaim the principle that an aggrieved party ought to be compensated for loss of his positive or expectation interests and the requirement for a claimant to prove the loss actually incurred to be entitled to damages respectively. It is submitted that the trial court correctly assessed that the respondent lost earnings for the remaining contract period of 8 months by reason of the premature termination of the contract of employment with one months' notice instead of three months' notice. Counsel urged us to dismiss grounds two, three and four for lack of merit. On ground five regarding the award of damages, it is submitted that there was no objection to the claim for damages for breach of contract and an order for compensation for loss of earnings equivalent to 8 months' salary as pleaded and the said claims do not amount to duplication of the claims as they relate to separate claims under claims 1 and 2 of the endorsement of the writ of summons. Learned counsel referred us to the cases of A. J. Trading Company Limited v. Chilombo 7, Carver Joel Jere v. Dvr/Sgt Shamayuwa and Attorney-General8 , and Zambia Electricity Supply Corporation Limited v. Redlines Haulage Limited9 to drive the point that where an issue not pleaded is let in by evidence and not objected to by the other side, the court is not precluded from considering it. Counsel also referred us to the writ of summons and statement of claim on record in which the -Jl4- respondent pleaded ( 1) damages for breach of contract of employment and (2) an order for compensation for loss of earnings equivalent to 8 months' salary. That there was no objection to the said claims as pleaded and there was no withdrawal of the said claims. It is submitted that the court below did not err in awarding both claims as pleaded and on the evidence before it. At the hearing of the appeal, Mr. Chabu, who appeared for the respondent briefly augmented on the filed heads of argument. Counsel submitted that the court below properly found as a fact that there was no consent to the contents of the letter dated 21 st May 2013, and that the same had a number of alterations on the signature and not the substance. On the issue of duplicity of awards, Mr. Chabu referred us to the appellant's submission in the court below and submitted that the issue of duplicity of awards was not raised in the court below. He urged us to uphold the judgment of the court below or vary it in a manner upon the extent of the cross-appeal. With respect to the cross-appeal, Mr. Chabu advanced oral submissions on ground one only. The issue with respect to this ground is whether a redundancy situation arose as regards the respondent's employment status. Counsel argued that a redundancy situation had arisen which obliged the appellant to pay a redundancy package. That there was evidence at page 59 lines 10-15 of the record of appeal to the effect that the respondent was -J15- outside the establishment of boiler makers. Counsel argued that this evidence read together with the reasons given in the letter of termination meant that a redundancy situation had arisen. Mr. Chabu relied on the case of Chilanga Cement Plc v. Kasote Singogo10 on the issue of recourse where the terms and conditions are silent on redundancy. In response to the cross-appeal, Mr. Imonda relied on the appellant's heads of argument filed into court on 3 rd October, 2017. Under ground one, it is submitted that the contents of the letter of termination dated 27 th August, 2015, on record, does not fit into the definitions of the term "redundancy" because the appellant did not cease to carry on the business by virtue of which the respondent was employed as Artisan Boilermaker at general payroll level. Further, that there is no indication or suggestion on record that the number of boiler makers on the establishment had been reduced. It is submitted that the reasons for termination on account of the appellant's financial position and the implications of the business environment ought not to be looked at as a declaration of redundancy but a measure by the appellant to avoid a payment default. Counsel submits that since the respondent agrees with the lower court's reasoning that Section 26B of the Employment Act1 is not applicable to the respondent, there was no sound basis for challenging the decision of the court. Further, that since the respondent was employed in an occupation where wages and conditions of employment are regulated through the process of -Jl6- collective bargaining under the Industrial and Labour Relations Act4, the Minimum Wages and Conditions of Employment (General) Order 2011 as well as the Minimum Wages and Conditions of Employment (General) (Amendment) Order 2012 did not apply to him. It is submitted that under these general orders proof of membership of a union is not necessary. However, one has to prove that the employee in question was employed in an occupation where wages and conditions of employment are regulated through the process of collective bargaining. That the respondent's contract of employment on record shows that he was employed at general payroll level. The case of Lawrence Muyunda Mwalye v. Bank of Zambia 11 cited by the respondent in its argument was distinguished on account of the fact that the appellant in that case was employed at director level while the respondent herein was employed as an artisan boiler maker at general payroll level. With respect to ground two of the cross-appeal, it is submitted that the respondent was on a one year fixed term employment contract while the 163 employees were on permanent employment condition. On ground three of the cross-appeal, the appellant submits that the respondent did not raise any objection to the reception of evidence relating to grooming young ones as provided for under Order V Rules 21-22 of the High Court Rules 5 . That this evidence did not vary or add to or contradict the written employment contract on -J17- record because it was meant to show that g1v1ng a reason for bringing back the respondent after retirement at 55 years of age was in line with the law in force at the time . Mr. Imonda urged us to dismiss the cross appeal for lack of merit. We have carefully sifted through the arguments by the parties and the judgment appealed against. In considering the first ground, we are of the view that the learned trial Judge misdirected herself when she considered the provisions of the Employment (Amendment) Act2 . We agree with Mr. Imonda that the learned trial Judge ought not to have considered the provisions of the said Act supra which was not in force at the time the respondent was in employment with the appellant. The relevant date on the facts of this case is the date of the respondent's termination of employment - 30 th September, 2015. The date of assent of Act No. 15 of 2015 is 26 th November, 2015 and it came into force on 3 rd December, 2015 . These facts are revealed on the face of the Act. In upholding ground one , we take the view that it has no effect on the outcome of the appeal since it was not the basis of the lower court's judgment. Under ground two , the issue of contention 1s the alleged discrepancies between the letter of renewal of contract dated 21 st May, 2013 and the subsequent letters of renewal dated 2 nd June , 2014 and 13th May, 2015. The learned trial Judge had this to say at page Jl 1 of her judgment: -J18- "In the case in casu, I find that the discrepancies between the letter at page 1 and those at pages 2 and 3 of the Defendant's Bundle of Documents have remained unsubstantiated neither has the alterations on the dates on page 1 been satisfactorily explained such that the attesting witness indicated 3 rd June 2013, the others indicated 22nd March, 2013 and 22nd May 2013. The letter head used in also questionable, as to why it has departed from the ones on pages 2 and 3." The court below took issue with the fact that the letter of renewal of contract at page 43 of the record had three dates on it. The trial court in fact agreed with the respondent's testimony on record that he could not have entered into a contract with terms worse off than the first contract. A perusal of the statement of claim reveals that the respondent did not plead fraud in his statement of claim. He did not make any allegation as to the falsification of the said letter of renewal. The proceedings on record further reveal that the respondent received the said letter on 21 st May, 2013. He thereafter signed it and acknowledged receipt. His evidence was that he had accepted the said letter. It is trite law in our jurisdiction that where there is exchange of a list of documents, a party is deemed to admit the authenticity of documents disclosed by the otherside, unless the party serves a notice requiring the document to be proved at trial. Any objection must be made timely to allow the opposing party to respond , and if -J19- possible, to make any relevant application. The objection cannot be validly made after the trial of the matter has closed. Authoritative in this regards is Order 27 Rule 4 of the Rules of the Supreme Court6 which provides that: "(])Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document, a party on whom a list of documents is served in pursuance of any provision of Order 24 shall, unless the Court otherwise orders, be deemed to admit - (a)that any document described in the list as an original document is such a document and was printed, written, signed or executed as it purports respectively to have been, and (b)that any document described therein as a copy is a true copy. This paragraph does not apply to a document the authenticity of which the party has denied in his pleading." In the matter in casu, in the absence of an objection the court is not precluded from taking into account documents contained in a bundle. The case of Kajimanga v. Chilenaya12 also refers. Further, pertaining to the issue of the legitimacy of the letter dated 21 st May 20 18, the extrinsic evidence rule, which has been mentioned by the respondent under the third ground of his cross appeal, is quite instructive. It was well stated in by Watermeyer, JA -J20- 1n the case of Union Government v Vianini Ferro-Concrete Pipes13 at page 47, where he said: "Now this court has accepted the rule that when a contract has been reduced to writing, the writing is, in general, regarded as the exclusive memorial of the transaction and in a suit between the parties, no evidence to prove its terms may be given save the document or secondary evidence of its contents, nor may the contents of such document be contradicted, altered, added to or varied by parole evidence." We are of course aware of the exceptions to the extrinsic evidence rule; suffice to say that none of the exceptions apply to the circumstances of this case. A perusal of the record reveals that there was no objection to the production of the letter dated 21 st May 2018, and in the absence of any fraud alleged in the statement of claim, the trial court was precluded from construing the said letter as one with discrepancies. We thus do not detect any inconsistencies between the contents of this letter and the subsequent letters on record. Ground two is thus allowed. With regard to grounds three and four, we will address the issue of whether or not there was a breach of the contract on the part of the appellant since both grounds relate to the issue of the notice period in the letter of 21st May, 2013 and the court's finding that the plaintiff was in a worse off position. Mr. Imonda contended that the -J21- issue in contention was the evaluation of the evidence by the court below, and whether or not the respondent had accepted the terms of the said letter of 21 st May, 2013. The evidence on record (pages 51 to 53 of the record of appeal) is that the respondent disagreed with the 30 days' notice period contained in the said letter because it did not comply with the three (3) months' notice indicated in his first contract. The respondent went on to tell the court that it was foolish of him to sign a new contract with worse off conditions. That he felt cheated and that is why he filed a complaint in court. His evidence in cross-examination was that he accepted the letter of 21 st May, 2013 and he signed it. After evaluating this evidence the court below had this to say at page J 11 (page 18-19 of the record appeal): "I would agree with the Plaintiff's Counsel that the Plaintiff's explanation be relied upon because he could not have entered into a contract with terms worse off than the first one he had entered into indicated on page 1 of the Plaintiff's Bundle of Documents. I would agree with him that he had not consented to reducing the termination notice from 3 months to 30 days. His contract was due to expire on 29th May, 2016 as indicated by renewal letter dated 13th May 2015 at page 3 of the Defendant's Bundle of documents. Therefore, the Defendant breached the contract by terminating it using a wrong termination notice of 30 days instead of 3 months." -J22- The trial court approached the issue of renewal by relying on the provisions of an old contract. The new contract had come into effect on 30th May, 2013 whilst the old contract had expired on 29 th May 2013. The three months' notice in the previous contract was varied in the new contract to one months' written notice effective 30th May 2013. The evidence on record is that the respondent consented to the new term with his endorsement on 22 nd May, 2013 on the letter of 21st May, 2013 and he clearly admitted to this. The Supreme Court in Attorney-General v. Marcus Achiume14 and Attorney-General v. Peter Ndhlovu 15 held that an appellate court will reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make. We are satisfied that in this case the court below did not properly evaluate the evidence that the respondent had entered a new contract and could not rely on the provisions of the old contract. As such there was no breach of contract when he was given 30 days' notice in accordance with the termination clause. We accordingly allow grounds three and four of the appeal. We ultimately address the issue of the award of damages. We have held in the preceding grounds that there was no breach of con tract -J23- on the part of the appellant. Mr. Chabu in his submissions argued at length that the respondent had pleaded in his claim both damages for breach of contract, and an order for compensation for loss of earnings equivalent to 8 months ' salary. The court in its judgment at page J12 found that the respondent was entitled to damages for breach of contract in addition to an order of compensation of 8 months' pay for loss of salary for the remainder of a fixed-term contract of employment. On account of what we have held above, damages and compensation for breach of contract were not to be awarded as this would amount to unjust enrichment. In the view we have taken, we find no merit in the cross-appeal , and dismiss it. As the appeal has succeeded in all grounds, we award costs to the appellant . ............. ~ ............ . F. M. CHISANGA JUDGE PRESIDENT F. M. CHISHIMBA D. L. Y. ICHINGA COURT OF APPEAL JUDGE COURT OF AP EAL JUDGE -J24-