Mukelebai v Maamba Collieries and Anor (Appeal 16 of 2013) [2016] ZMSC 258 (10 May 2016)

IN THE SUPREME COURT OF ZAMBIA APPEAL No. 16 of 2013 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SCZ/8/369/2012 SEAN MUYAWA MUKELABAI APPELLANT AND 1ST RESPONDENT MAAMBA COLLIERIES NAVA BHARAT (SINGAPORE) PTE LIMITED 2nd RESPONDENT CORAM: Mwanamwambwa, DCJ and Muyovwe and Kaoma, JJS. On the 22nd of July, 2015 and 10th May, 2016 For the Appellant: Mr. H. A. Chizu of Chanda Chizu and Associates For the Respondents: Mr. G. Cornhill of Wilson and Cornhill JUDGMENT Kaoma JS, delivered the Judgment of the Court Cases referred to: 1. Cavmont Merchant Bank Limited v Amaka Agricultural Development Co. Ltd (2001) Z. R. 73 2. Kapembwa v Maimbolwa and Attorney General (1981) Z. R. 127 3. Zambia Sugar Plc v Florence Mahule - Appeal No. 134/2006 (unreported) 4. Attorney General v Marcus Kampamba Achiume (1983) Z. R. 1 5. Zambia Privatisation Agency v James Matale (1995-1997) Z. R. 157 6. Zambia Airways Corporation v Gershom Mubanga (1990-1992) Z. R. 149 Xi J2 7. Jevan and Son Portsmouth Limited v Andrea Merzario Limited (1976) 1 WLR 1078 8. Zambia Revenue Authority v Hitech Trading Company Ltd-2000 unreported 9. Gondwev BP (1995-1997) Z. R. 178 10. Central London Property Trust Ltd V High Trees House Ltd (1947) KB 130 11. Zambia National Broadcasting Corporation v Tembo (1995-1997) Z. R. 68 12. Chintomfwa v Ndola Lime Company Ltd (1999) Z. R. 172 13. Development Bank of Zambia v Mambo - SCZ Judgment No. 13 of 1995 14. Nsama School International Education Trust v Musamba (2010) Z. R. ‘ Volume 2, 457 15. Swap Spinning Mills v Chileshe (2002) Z. R. 23 16. Chilanga Cement Plc v Kasote Singogo (2009) Z. R. 122 17. National Airports Corporation v Zimba and another (2000) Z. R. 154 18. Kitwe City Council v Nguni (2005) Z. R. 57 19. Rodgers Chama Ponde and others v Zambia State Insurance Corporation Limited (2004) Z. R. 151 20. Agholor v Cheesebrough Ponds (Zambia) Ltd (1976) Z. R. 1 Legislation referred to: 1. Supreme Court Act, Cap 25, section 24 (d) 2. Industrial and Labour Relations Act, Cap 269, sections 97 and 108(3)(b) Works referred to: 1. Selwyn’s Law of Employment, 8th edition 198 2. Halsbury’s Laws of England, 4th edition, Volume 16, paragraph 1514 This is an appeal against the judgment of the Industrial Relations Court dated 9th August, 2012 wherein the appellant was awarded damages for wrongful and unfair dismissal while his other claims were dismissed. The appellant had filed a complaint against the respondents in the Industrial Relations Court on 22nd November, 2010 seeking the following: a) Damages for wrongful or unfair dismissal b) Compensation for loss of employment c) Compensation for breach of fixed term employment contract d) Order for reinstatement or re-employment or damages based on discrimination *• J3 e) Order for payment of all accrued emoluments and monies due as per conditions of service and the law f) Order for payment of salaries and all dues up to the time the contract ought to have expired g) Order for payment of gratuity h) Order that the respondents sell the appellant motor vehicle Toyota Hilux Registration No. AB 5345 i) Order for preservation or restraining order against the respondent on the use of the named motor vehicle. Interest and costs. j) The appellant’s case, in brief, was that he was employed by the 1st respondent on 1st July, 2008 as a Chief Accountant on a two year fixed contract. In 2009, there was deterioration in relations between the appellant and the Chief Executive Officer (hereinafter referred to as CEO). In due course, the appellant was asked to resign by the CEO but he refused. The poor relations between the two continued and in October, 2009 the appellant’s personal-to-holder motor vehicle was withdrawn. In January, 2010 the appellant resigned due to continuing poor working relations. In February, 2010 the appellant joined Kaleya Smallholders Company as Finance Manager and Company Secretary. At that time, the 2nd respondent was in the process of acquiring the 1st respondent. Later on, the appellant received representation from Mr. Dipesh Dipu, who was the Vice-President - Mining of the 2nd respondent and the in-coming CEO of the 1st respondent, to join the 2nd respondent as Finance Manager. This was followed by several protracted negotiations. V ■ € J4 Ultimately, the appellant accepted to join the 2nd respondent as Finance Manager and Company Secretary. He received a Letter of Appointment which contained his terms and conditions of service with the 2nd respondent. He commenced work on 21st April, 2010 on a three year contract, which was to end on 18th April, 2013. Subsequently, the appellant was seconded to the 1st respondent as Finance Manager and was allocated a personal-to-holder motor vehicle, registration number ABP 5345 belonging to the 1st respondent. According to the appellant, there was no operational distinction whether one worked for the 1st or 2nd respondent. Later, on 5th July, 2010 Mr. Kalunga Mumba took over as CEO of the 1st respondent. The working environment again changed for the worst. On 31st October, 2010 Mr. Mumba requested the appellant to either resign or face termination of contract by the Board at a later stage. He refused to resign. On 15th November, 2010 the appellant was asked to hand over his office to Mr. Pulla Rao, of Indian origin, who was an employee of the 2nd respondent’s parent company and he did as directed. The appellant was also asked to hand over his personal-to-holder motor vehicle. He took the vehicle home with him but it was retrieved from him by security personnel. According to the appellant, his dismissal was wrongful and unfair as he was removed on racial grounds to pave way for Mr. Rao. Further, he i < J5 was entitled to gratuity at 30% and to buy his personal-to-holder motor vehicle and his last salary was K29,000,000.00. The respondents’ case was that the appellant was employed by the 2nd respondent on a three year contract to be based at the 1st respondent. The letter of appointment was signed by the employer and the employee. The appellant’s salary was K20,000,000.00 per month and there was a bonus of K54,000,000.00 at the end of 6 months period. The letter of appointment provided for termination of service by the employee by one (1) month’s notice and by the employer by three (3) months’ notice. The employer was not obligated to give any reasons for termination. The provisions of the contract were never changed. It was also the respondents’ testimony that there were no contractual relations between the appellant and the 1st respondent except the appellant was seconded to the 1st respondent to be in charge of finance department; he was paid by the 2nd respondent; and his employment was terminated by the 2nd respondent, in a letter dated 1st November, 2010. Thereafter, he was paid K20,000,000.00 November, 2010 salary; 2 months’ salary in lieu of notice; leave days; and bonus payment. That the appellant’s salary was K20,000,000.00 per month; the contract did not provide for gratuity; the vehicle was provided by the 1st respondent; and there was no agreement J6 as regards the purchase of the vehicle. And after the appellant left, his position was advertised in the papers and it was filled from within Zambia. The Industrial Relations Court in its judgment found that the appellant was employed by the 2nd respondent who seconded him to the 1st respondent. Further, that the appellant remained an employee of the 2nd respondent and he had no contractual relationship with the 1st respondent, and as such he could not have a claim against the 1st respondent. Consequently, all the claims against the 1st respondent were dismissed. With regard to the claims against the 2nd respondent, the court below made the following findings and orders: 1. The termination of the appellant’s employment was wrongful and unlawful because the contract was terminated before it expired and the appellant was not charged with any offence warranting dismissal. On that basis, the appellant be paid three months’ basic pay as damages for wrongful dismissal. 2. The claim for loss of employment contract was refused because the appellant did not specify which employment contract he was referring to. 3. The claim for damages for breach of fixed term employment contract was refused because it was a duplication of the claim for damages for wrongful and unfair dismissal which was already granted. 4. The claim for reinstatement or re-employment was refused because the order is granted sparingly and only where damages may not be adequate or appropriate. 5. The claim for payment of all accrued emoluments in accordance with the terms and conditions of employment was granted but limited to accrued leave days, notice pay, number of days worked for prior to termination on pro rata basis and bonus allowance of K9,000.00 per month, if not already paid. J7 6. The claim for payment of salaries and all dues up to the time the contract ought to have been concluded was refused because that was the real reason the appellant was awarded damages for wrongful and unfair dismissal. 7. The claim for payment of gratuity was also refused because there was no gratuity clause in the letter of offer of appointment which outlined all terms and conditions. 8. An order directed to the 2nd respondent to sell the motor vehicle to the appellant was refused because the motor vehicle did not belong to the 2nd respondent. 9. The damages for wrongful and unfair dismissal, notice pay and accrued leave days should be based at the monthly salary of K20,000,000.00 because that was the salary agreed in the letter of appointment. 10. Interest was allowed on all monies awarded, at the Bank of Zambia rate, from date of complaint up to full and complete payment; and 11. No order as to costs was made because the appellant had failed on many of his claims. Dissatisfied with the judgment, the appellant appealed advancing ten grounds of appeal in the Memorandum of Appeal as follows: 1. The court below erred in law and fact by holding that the appellant was not an employee of the 1st respondent. 2. The court below erred in law and fact by dismissing all claims by the appellant against the 1st Respondent. 3. The court below erred in law by refusing a claim for loss of employment on the reason that the appellant did not specify which employment contract he was referring to when the evidence is clear that there was only one employment contract terminated by the 2nd or 1st respondent. 4. The court below erred in law and fact by refusing an award for damages on breach of fixed term employment contract on reasons that it was a duplication of the claim for damages for wrongful dismissal when the facts and evidence clearly revealed that there was such fixed term contract which was terminated contrary to the terms of the fixed contract. J8 5. The court below erred in law and fact by refusing an order for reinstatement or redeployment on the basis that it was granted sparingly and where damages may not be adequate or appropriate when it was clear that the case was a rare one with strange circumstances and in fact the damages awarded were inadequate. 6. The court below erred in law in refusing to pay gratuity. 7. The court below erred in law and fact by refusing an order to sell the motor vehicle ABP 5345 to the appellant on reason that the vehicle did not belong to the 2nd respondent when evidence on record revealed that the same vehicle was pre-bargained and offered to the appellant by the 1st or and 2nd respondent. 8. The court below erred in law by awarding 3 months’ pay only as the award of damages for 3 months was inadequate considering the circumstances of the case. 9. The court below erred in law and fact by basing the monthly salary on K20,000,000.00 instead of K29,000,000.00. 10. The court below erred in law by refusing to grant the appellant costs. The 2nd respondent also filed a notice of cross-appeal which is at page V of the record of appeal advancing one ground only that: “The court below erred in law in deciding that the termination of the complainant’s employment was wrongful and unlawful without providing reasons therefor.” The parties filed heads of argument in respect of both the main appeal and the cross-appeal on which they relied entirely. The appellant also filed heads of argument in reply to the respondents’ arguments. Because of the position we have taken in this appeal, we find it unnecessary to restate in much detail, the arguments by the parties in respect of grounds 4, 5 and 8 and the arguments on the cross-appeal. J9 The gist of the appellant’s arguments in ground 1 of the main appeal is that the appellant was employed by both respondents although the letter of offer of employment came from the 2nd respondent. It was argued that the trial court should have noted that the appellant operated in the premises of the 1st respondent which also played a role in re-engaging him; that he was given a pre-negotiated personal-to-holder car belonging to the 1st respondent; and he was accommodated by the 1st respondent. Further that all payslips were in the name of the 1st respondent; he was supervised by the 1st respondent’s CEO; the disciplinary code handed to him was for the 1st respondent; and he was introduced as Finance Manager of the 1st respondent which was under the effective control of the 2nd respondent. And that by the conduct of the respondents in the way they dealt with the appellant, they are estopped from refusing that he was employed by both. Alternatively, it was argued that since the 1st respondent was acting as an agent of the 2nd respondent, which was the contracting party, it should also be deemed to be the employer of the appellant and be found liable. Counsel cited the case of Cavmont Merchant Bank Limited v Amaka Agricultural Development Co. Ltd1 where it was held that where an agent is a contracting party he will be held personally liable even if he names the principal. . I J10 In ground 2, counsel for the appellant repeated his arguments in ground 1. He added that it was erroneous for the court to gloss over the evidence and to conclude that the appellant was not employed by the 1st respondent and to dismiss all the claims against the latter. He also referred to the evidence of Alex Romano Mutale to the effect that the 1st respondent was taken over by the 2nd respondent and their salaries were adjusted; and that the appellant was employed by the 2nd respondent but was transferred to the 1st respondent and went back to the payroll of the 1st respondent. The appellant’s argument in ground 3 was that it was an error for the court to conclude that he had not specified the contract terminated, when the notice of complaint and affidavit in support showed the contract in issue and gave a background of his earlier engagement. We were urged to overturn the court's finding on the basis of our decision in the cases of Kapembwa v Maimbolwa and another2, Zambia Sugar Plc v Florence Mahule3 and The Attorney General v Marcus Kampumba Achiume4 As regards ground 4, the gist of the appellant’s contention is that it was wrong to find that claiming for damages based on a relief of fixed term contract was duplication as the claim for damages for loss of employment can stand on its own because while generally wrongful dismissal will attract mere notice or payment in lieu of notice, breach of a contract will result into Jll more severe remedy to the extent of paying even for the remainder of the fixed period. The case of Zambia Privatisation Agency v James Matale5 was quoted where the Court was of the view that damages may be measured by loss of salary by the remainder of the fixed term of employment where the employer wrongfully repudiates the contract. It was argued that the manner in which the appellant's contract was repudiated or terminated calls for the need for the court to look into what was behind the termination and not to be blind folded by the notice clause which was not also complied with as no three months’ notice was given and no payment in lieu of notice was made at that time. It was further argued that although the letter of appointment provided for immediate notice to terminate in clause 7.3, such termination was conditional and the appellant was not guilty of any offence nor could it be said that he was incompetent. In relation to ground 5, the appellant’s argument was that this case was strange, rare or special in the way it occurred and that he is entitled to a remedy under section 108(3) (b) of Cap 269. It was argued that the appellant gave a detailed background of how he was first employed by the 1st respondent, how the contract was prematurely terminated, and how he got another job with Kaleya Smallholders Company before the respondents came knocking on him again. • a J12 It was contended that the moral, ethical and professional dilemma alluded to by the appellant and the persuasion exhibited by the respondents makes this case qualify to be a rare case particularly that the appellant never applied for the job but was followed and later hounded out in one day to pave way for Mr. Rao. That this qualified to be dismissal on racial grounds and later when Mr. Rao left the country, the appellant could have been reinstated or re-employed. We were referred to the case of Zambia Airways Corporation Limited v Gershom Mubanga6. In ground 6, the appellant argued that the issue of gratuity at 30% was negotiated and discussed and that the principle of parole evidence and its exceptions would allow other evidence which is not in a written document to be accepted. The case of Jevan and Son Portsmouth Limited v Andrea Merzario Limited7 was cited as authority where it was stated that the court is entitled to look at all evidence from start to finish in order to see what the bargain was that was struck between the parties. The case of Zambia Revenue Authority v Hitech Trading Company Ltd8 was also cited where the court said evidence should be admitted in all cases where it would be an affront to one’s sense of fairness not to admit it. We were invited to accept as forming part of the terms of the contract, the • ♦ J13 appellant’s evidence on the issue of gratuity at 30% on ground that the parties had agreed that some terms should not be embodied in writing. As regards ground 7, the appellant’s position was that the documents and evidence on record show that the issue of being offered a personal-to- holder car and the same to be sold to the appellant at the end of contract or if the contract was prematurely terminated was very cardinal for him to accept the new contract; and that this was discussed and it was again agreed that the issue should not be reflected in a written contract. Counsel for the appellant further quoted the case of Gondwe v BP9 where the Court took judicial notice of the common practice in most parastatal companies, of the existence of conditions of service where employees have been allowed to purchase personal-to-holder cars, either after certain periods or upon the employee’s death or retirement. It was further submitted that it was erroneous for the court to decide that the motor vehicle did not belong to the 2nd respondent when the latter took over running of the 1st respondent and all its assets; and the appellant relied on the respondents’ representation that the vehicle was available on a personal-to-holder basis and he could be entitled to purchase it. The appellant also relied on the common law principle of promissory estoppels which is to the effect that where a representation is made to a J14 party which causes the other to change his position to his detriment then the other party should be estopped from denying its representation. To support this argument counsel cited the case of Central London Property Trust Limited v High Trees House Limited10. In ground 8, it is the appellant’s submission that as this is a rare and special case and his contract was terminated unjustifiably, and the court having found unfairness which was somehow based on discrimination, damages awarded should attract, not the general damages awarded for wrongful dismissal based on notice period, but damages of at least 12 to 24 months as awarded in cases such as Zambia National Broadcasting Corporation v Tembo11 and Chintomfwa v Ndola Lime Company12. With respect to ground 9, the appellant's submission was that his evidence and that of his witness, Romano Mutale showed that the salaries for all managers were adjusted upwards following oral instructions from the CEO and that the payslip at page 194 of the record of appeal shows the adjusted salary of K29,000,000.00 and this was the appellant’s last salary. The case of Development Bank of Zambia v Mambo13 was cited where it was stated that the rate payable was that existing and known to the parties. Regarding ground 10, it was the appellant’s contention that since he succeeded on the claim for unfair and or wrongful dismissal he should have J15 been awarded costs; or the court should have apportioned and awarded him a percentage of the costs considering the circumstances of his dismissal and the time the matter took in court. We were invited to refer to the submissions made in the court below and to uphold the appeal. In response to grounds 1 and 2, counsel for the respondents submitted that for a complainant to prevail in an employment matter there must be a contract of employment between the parties and if there is no contract, no breach or attendant damages can arise. The case of Nsama School International Education Trust v Musamba14 was cited to buttress this argument. It was argued that in casu, the letter of appointment is clear that the appellant was being employed by the 2nd respondent, so the trial court was right to hold that the appellant was not an employee of the 1st respondent and in dismissing all the claims against the 1st respondent. In responding to ground 3, counsel for the respondents cited section 97 of the Industrial and Labour Relations Act which limits appeals against decisions of the Industrial Relations Court to points of law or mixed law and fact and argued that while it is true that the court misdirected itself, this ground is solely on a factual finding and ought to be dismissed. With respect to ground 4, counsel for the respondents argued that the common law remedy for any breach of contract is damages for the breach J16 and that in a plethora of cases, such as Swarp Spinning Mills v Chileshe15, Chintofwa v Ndola Lime Company Ltd 12 and Chilanga Cement Plc v Kasote Singogo16 this Court held that the normal measure of damages will relate to the applicable contractual length of notice or the notional reasonable notice where the contract is silent. It was contended that the appellant’s argument that damages for breach of fixed term contract can stand alone, because this is based on the period of contract and the award is remuneration for the remainder of the contract, is contrary to the decisions of this Court in the case of National Airports Corporation v Zimba and another17 and Kitwe City Council v William Nguni18 where we held that it is unlawful to award a salary or personal benefits for a period not worked for, because such an award has not been earned and might be properly termed unjust enrichment. It was argued that in this case, the employer could terminate the contract by giving three months’ notice or payment in lieu, and so the three months’ salary is the normal measure of damages the court could give and was given to the appellant, albeit under a wrong finding of unlawful and wrongful dismissal. And that the court was on firm ground to deny further damages to the end of the contract as the claim was a duplication of the J17 award already given and such award would be unconscionable and tantamount to unjust enrichment. On ground 5, the respondents’ argument was that an order of reinstatement is like an order of specific performance or injunctive relief which are equitable remedies and can only be granted at the discretion of the court. They cited Selwyn’s Law of Employment, 8th edition at page 198 where the learned authors state that a contract of employment is essentially one of personal service, which gives rise to duties and obligations on both sides and that the court will not compel either side to carry out the contract by means of specific performance or injunction. The respondents also argued that the case of Zambia Airways Corporation v Mu ba ng a6 still uphold the general principle that an order of reinstatement is granted sparingly. On the racial discrimination alleged by the appellant, it was the respondents’ contention that as the court did not make any finding of fact on the issue, this cannot buttress a claim for reinstatement; and that the appellant was a finance director, a position of authority in any organisation, and so it cannot be conducive to reinstate him because no confidence can be reposed in him especially that he alluded to the situation deteriorating. 4 , J18 In response to ground 6, we were invited to revisit the case of Rodgers Chama Ponde and others v Zambia State Insurance Corporation Limited19 where this Court was unequivocal in disallowing parole evidence as it tends to add to, vary or contradict the written terms of a contract of employment. We were also referred to the record of appeal to show the appellant’s demand for gratuity and the response thereto. It was then contended that the parties were not in agreement on gratuity and there was no provision in the contract for gratuity. Concerning ground 7, counsel for the respondents invited us to reject the appellant’s attempts to bolster his claim for purchase of the vehicle on parole evidence of pre-contractual negotiations; and argued that it would be idle for this Court to determine this ground of appeal on judicial notice of a practice to sell personal-to-holder cars in the face of a written contract. As to promissory estoppel, counsel for the respondents quoted from the learned authors of Halsbury’s Laws of England, 4th edition the three ingredients cited of a clear and unequivocal promise; reliance on the representation by the other party to change position; and a legal representation between the parties, and analysed the same in relation to the evidence on record, and submitted that from the correspondence, there J19 was no unequivocal representation that the respondents would sell the vehicle to the appellant at termination. It was further argued that the 2nd respondent was in agreement with the conditions relating to the vehicle which were introduced by the appellant as the two parties intended that eventually the appellant would become an employee of the 1st respondent. That however, the appellant insisted on joining the 2nd respondent and his employment was terminated before he could be moved to the 1st respondent, and as such no estoppels or other contractual provision can be enforced against the 1st respondent. On ground 8, the respondents reiterated the arguments on ground 4 and added that the trade or profession the appellant was employed in had vast employment potential and at commencement of trial he was already in employment and no cruelty had been alleged and proven. It was also argued that in terminating the employment; the 2nd respondent gave one month’s notice and paid two months’ salary in lieu of notice. In addition, the court gave the appellant three months’ salary, so there is nothing to justify departure from the normal award of damages. We were urged to dismiss this ground of appeal. With regard to ground 9, the respondents argued that the appellant’s testimony was that his salary was K29,000,000.00 and the bonus of J20 K9,000,000.00 was amalgamated into the salary per verbal instructions from Mr. Kalunga Mumba. But the only real evidence of the adjustment presented was the pay slip authored by the appellant which was denied by the respondents who effected payment in accordance with the contract. It was further submitted that the trial court was on firm ground to exclude the parole evidence of salary adjustment and to find as a fact that the salary was K20,000,000.00 since the figure was on the contract; and that this was a factual finding which cannot be assailed unless it is perverse or contrary to the evidence on record. Finally, in response to ground 10, counsel for the respondents quoted section 24 (d) of the Supreme Court Act, Cap 25 and submitted that costs are in the discretion of the court and that there is no order for leave of either the trial court or this Court for the appellant to appeal against the order for costs; and that this is fatal to this ground of appeal. In the end, we were urged to dismiss the entire appeal for lack of merit, with costs. In reply to the respondents’ heads of argument, the appellant mainly repeated his arguments in support of the appeal. On the cross- appeal, the 2nd respondent allegation in the sole ground in the notice of cross-appeal was that the trial court erred in law in deciding that the termination of the appellant’s employment was wrongful and J21 unlawful without providing reasons therefor. However, there are two different grounds of appeal in the heads of argument on cross-appeal. Ground 1 alleges that the court below erred in law and fact by granting to the appellant damages for wrongful and unfair dismissal on the ground that the contract was terminated before it expired; and the complainant was not charged with any offence warranting dismissal. Ground 2 alleges that the court below erred in law and fact by holding that the termination of the appellant’s employment was wrongful and unlawful because there was no contract of employment between the appellant and the 2nd respondent. As there is nothing on the record to show that the notice of cross­ appeal was amended, we decline to consider the two grounds of appeal or the heads of argument by both sides regarding those grounds of appeal. However, counsel for the appellant had responded to the sole ground of the cross-appeal, in the heads of argument dated 28th January, 2013 and argued that the trial court was on firm ground in deciding that the termination of employment was wrongful and unlawful and that the reasons given, were that the contract was terminated before it expired; and the appellant was not charged with any offence warranting dismissal. It was submitted that these are findings of fact, and so the trial court was justified and the cross-appeal must fail with costs. J22 We have seriously considered the record of appeal, the judgment appealed against and the parties’ respective arguments and authorities relied on. We propose to deal with grounds 1 and 2 of the appeal together as the issues raised therein are related. Similarly, we shall deal with grounds 4, 5 and 8 at once and then the other grounds individually. The simple question raised by grounds 1 and 2 is whether the appellant was an employee of the 1st respondent for the claims against the latter to be tenable. Admittedly, the Letter of Appointment on record dated 13th April, 2010 was authored by the 2nd respondent under the hand of its CEO, Ashwin Devineni. The introduction to the letter reads as follows: “We are pleased to offer you the position of Finance Manager & Company Secretary under Nava Bharat (Singapore) Pte Ltd (NBS) for the Mine Development Project at Maamba Collieries Limited (MCL). You will be based in Zambia reporting to Mr. Dipesh Dipu, Vice President (Mining Projects) based in Zambia, upon the following terms and conditions: ...” In addition, in his testimony, the appellant indicated that the 2nd respondent is a company which employed him as Finance Manager & Company Secretary and later moved him to work for the 1st respondent. He also testified that whilst working at Kaleya Smallholders Company, he was approached by Dipesh Dipu who was serving as Vice President - Mining for the 2nd respondent who asked him to reconsider his departure from the 1st respondent and get a new contract as finance manager. J23 When he expressed concern at such a move as he considered it a moral, ethical and professional dilemma as he would give an impression of being unstable in the employment field, Dipesh Dipu pleaded with him to consider getting back to the 1st respondent and asked him to meet some of the directors of the 2nd respondent in Lusaka and he met one Gorethi and Essau Nebwe who explained the need for him to consider the offer of employment and assured him that there would be no problems regarding what he had endured in his previous contract with the 1st respondent. It was further the appellant’s evidence that he requested the 2nd respondent to give him an offer of salary and that he be employed by the 2nd respondent or the parent company to the 2nd respondent because the 1st respondent had financial difficulties. The proposal was agreed to with a condition that he would be moved to the 1st respondent once the latter took over management control of the 1st respondent. According to the appellant, when he took up position with the 2nd respondent, he was formally introduced to the outgoing board of the 1st respondent and to the incoming board at a joint meeting as Finance Manager & Company Secretary and at the1st respondent he took up the role of Finance Manager. The appellant agreed even under cross­ examination that his employer was the 2nd respondent and this was J24 confirmed by his witness. On this evidence, we agree entirely with the argument by the respondents that the trial court was on firm ground when it held that the appellant was not an employee of the 1st respondent. As we see it, the fact that the appellant was formally introduced to the outgoing and incoming board of the 1st respondent at a joint meeting as Finance Manager & Company Secretary or that he was operating in the premises of the 1st respondent did not make him an employee of the 1st respondent. Neither did the fact that he was given a personal-to-holder car belonging to the 1st respondent or that he was accommodated by the 1st respondent or that his payslips were in the name of the 1st respondent or indeed, that he was supervised by the 1st respondent’s CEO. The appellant did not even adduce evidence to show that the 1st respondent had taken over management control at the time his contract was terminated or that the purchase of the 1st respondent had been completed for him to argue that he was an employee of the 1st respondent. It was also argued by the appellant that since the 1st respondent was acting as an agent of the 2nd respondent, which was the contracting party, it should also be deemed to be the employer of the appellant and should be found liable. We do not agree with this submission and the authority relied on does not help the appellant. J25 The appellant was initially approached by Dipesh Dipu who was the Vice President - Mining for the 2nd respondent and he negotiated his terms and conditions of service with Dipesh Dipu. By his own admission, he was an employee of the 2nd respondent and was only seconded to the 1st respondent, and so he cannot be heard to argue that he was an employee of the 1st respondent when he had even refused to be employed by the 1st respondent because it had financial difficulties. In our view, the trial court was on firm ground when it held that the appellant remained an employee of the 2nd respondent and had no contractual relationship with the 1st respondent, and so he could not have a claim against the latter and in dismissing all the claims against the 1st respondent. Therefore, grounds 1 and 2 are dismissed for lack of merit. With regard to ground 3, the respondents conceded that the trial court misdirected itself when it stated that the appellant did not specify the contract he was referring to, but argued that this ground is solely on a factual finding from which the appellant cannot appeal. Since there was only one Letter of Appointment, which contained the terms and conditions of the appellant’s employment with the 2nd respondent, it was a gross misdirection for the trial court to dismiss the claim on that ground and to go J26 out of context to consider the initial contract with the 1st respondent and the later contract with Kaleya Smallholders when those were not in issue. Clearly, the ill-fated statement by the trial court was not supported by the evidence, and so it becomes a question of law. Consequently, we uphold ground 3 as it has partial merit. As to whether the appellant was entitled to compensation for loss of employment contract is a different matter which we shall deal with shortly in ground 4 of the appeal. The question raised by ground 4 is whether the appellant was entitled to an award of damages for breach of fixed term contract of employment in addition to the damages for wrongful, unlawful and or unfair dismissal already awarded. In our view, however, the crucial issue on this ground of appeal is whether the manner in which the appellant’s contract of employment was terminated was lawful. We have said that the appellant’s terms and conditions of employment were governed by a letter of employment. The relevant clause dealing with termination and notice is clause 7. It provided as follows: “7.1 Either party may terminate the contract by serving the necessary notice period. The employee’s notice period is one (1) month’s notice or one (1) month’s salary in lieu of notice and the employer’s notice period is three (3) months’ notice or three (3) months’ salary in lieu of notice. 7.2 The Company reserves the right not to give reasons for termination. J27 7.3 The Company, however, has the right to give immediate notice before terminating your services if you are guilty of misdemeanour, misconduct, negligence or breach of any of the terms of this Letter of Appointment. 7.4 Upon the termination of your employment you shall return to the Company all documents, records, items and materials in your possession or custody belonging to the Company or its clients and you shall not retain any copies (including electronic or soft copies) thereof. 7.5 During your notice period, you shall hand over all documents and materials relating to your work and ensure a smooth transition of your duties and responsibilities. If you fail to complete the handover during the notice period, the Company shall be fully entitled to require and compel you to stay one (1) more week after the notice period has ended to complete the handover.” Quite clearly, in terms of clause 7.3 of the Letter of Appointment, the employer had the right to give immediate notice before terminating the employment if the employee was guilty of misdemeanour, misconduct, negligence or breach of any of the terms of this Letter of Appointment. However, under clause 7.1, the employer could still terminate the contract by giving three months’ notice or three months’ pay in lieu of notice. As we held in the cases of Zambia Privatisation Agency v James Matale5 and Chilanga Cement v Singogo16, payment in lieu of notice is a proper and lawful way of terminating employment, since every contract of service is terminable by reasonable notice. In this case, the trial court totally overlooked the fact that the employer could terminate the contract by giving notice or pay in lieu of J28 notice. Instead, the trial court granted damages for wrongful and unfair dismissal simply because the contract was terminated before it expired and the appellant was not charged with any offence warranting dismissal. In arriving at that decision, the trial court considered the case of Agholor v Cheesebrough Ponds (Zambia) Ltd20 where it was held that an employer can terminate the services of an employee at any time and for any reason and further that if the employer breaches any provision of the contract then the employer shall be held liable in damages. Of course, in this case, the contract of employment was terminated before it expired and the appellant was not charged with any of the offences mentioned in clause 7.3 of the Letter of Appointment. However, the trial court did not indicate or point out which provisions (if any) of the letter of offer of employment the 2nd respondent had breached in terminating the appellant’s employment and we are not going to speculate. According to counsel for the respondents, the appellant was given three months’ pay in lieu of notice because he was paid his November salary, and in addition, he was paid two months’ salary in lieu of notice. Conversely, the appellant has submitted that no three months’ notice was given and no payment in lieu of notice was paid at that time. J29 The record is clear that the appellant’s employment was terminated by the 2nd respondent by letter of termination of employment contract dated 1st November, 2010 with effect from that date. However, the appellant was required to do a complete handover of his duties, so he was given one month’s notice period for that purpose. The letter of termination also listed the payments the appellant was to receive on his last pay check on 30th November, 2010 as: November basic salary - K20,000,000.00; 2 months’ salary in lieu - K40,000,000.00; annual leave balance (10 days) - K8,391,608.00; and bonus payout (6 months period) - K54,000,000.00. The appellant admitted at trial that he was paid notice pay in March, 2011. Since the appellant was given one month’s notice in which to do the handover for which he received the November salary, and he received two months’ salary in lieu of notice, we are not satisfied that the 2nd respondent breached clause 7.1 or that the termination of employment was wrongful or unlawful or that the termination amounted to wrongful dismissal. In our view, the award of three months’ salary as damages for wrongful and unlawful dismissal was unjustified, and is untenable and we set it aside. Besides, the appellant was not entitled to any damages or compensation for loss of his job or damages on alleged breach of fixed term contract of employment. J30 We have also considered whether the termination of employment was unfair. The appellant had suggested that the court should have gone behind the notice to see what actually led to the termination of his employment and that his dismissal was based on racial discrimination because he was removed to pave way for Mr. Rao. It is not clear to us what the problem was between the appellant and his employer. No reasons were given by the employer for the termination and the employer was covered by clause 7.2 of the Letter of Appointment. And our perusal of the record, and particularly the proceedings in the trial court, does not reveal any material on which the court could have gone behind the notice had it addressed its mind to the issue. Further, the appellant was aware of the moral, ethical, and professional dilemma in which he found himself, but he agreed to leave Kaleya Smallholder Company and to join the 2nd respondent. Moreover, there was evidence that Mr. Rao only took over from him in an acting capacity. Afterwards, the position was advertised and filled from within Zambia. Clearly, racial discrimination was not established for the appellant to be entitled to compensation under section 108(3) (b) of Cap 269. Furthermore, as the 2nd respondent was entitled to terminate the employment under clause 7.1 of the letter of appointment and the appellant J31 was not dismissed on racial grounds, the termination of employment was not unfair and the issue of reinstatement does not arise. In any case, the trial court was right when it held that re-instatement is sparingly granted. For the reasons we have given above, we find no merit in grounds 4, 5 and 8 of the appeal and we dismiss them in total. With regard to ground 6 and the issue of gratuity, we have perused all the documents to which we were referred. What we can glean from the documents is that the appellant proposed conditions that he wanted to be incorporated into his contract and this included gratuity. There was a proposal of gratuity at 30% and the response was: “Our HR needs time to decide on this. We are not sure of level of gratuity in the existing terms of employment at Maamba. Can we negotiate and close this issue later?” The other e-mails referred to do not help the appellant’s case as they simply confirm that gratuity was to be concluded at later negotiations and was not stated in the offer or the contract. What is more, in his testimony, the appellant agreed that the issue of gratuity was not resolved and was not in his letter of appointment. In these circumstances, we do not see how we can admit parole evidence. We find that the trial court was on firm ground when it refused to award the claim for gratuity on ground that there was no gratuity clause in the appointment letter. Accordingly, ground 6 equally fails and is dismissed. C' - J32 In relation to ground 7 of the appeal, the question is whether the appellant was entitled to buy the personal-to-holder motor vehicle. The gist of the appellant’s contention again was that the issue of sale of the vehicle was discussed, except it was agreed that it should not be reflected in the contract, and so the respondents should be estopped from denying its representations to him. In contrast, the respondents’ position was that we should not accept parole evidence of pre-contractual negotiations for purchase of the vehicle or take judicial notice of a practice to sell personal- to-holder cars in the face of a written contract. There is no dispute that the issue of a personal-to-holder vehicle was discussed between the appellant and the 2nd respondent and it was incorporated into the former’s terms and conditions of service. And we accept that the motor vehicle was given to the appellant as a condition of employment. Clause 6.2 in the Letter of Appointment provided as follows: “You will also be provided with a motor vehicle, insured with road tax, on a personal-to-holder basis.’’ Certainly, this condition fell short of providing for purchase of the vehicle at the end of contract or at termination of contract. It is yet again quite clear, that the trial court did not resolve this issue in its judgment but refused to compel the 2nd respondent to sell the vehicle to the appellant because the vehicle did not belong to the 2nd respondent. The fact that the <* J33 , vehicle belonged to the 1st respondent was not the real issue. Despite that the vehicle belonged to the 1st respondent, it was provided to the appellant on a personal-to-holder basis as required by clause 6.2. The real issue was whether the sale of the vehicle was agreed as alleged by the appellant. Firstly, if indeed the sale of the vehicle was agreed, there is no plausible explanation as to why that condition was not included in the Letter of Appointment, especially if it was one of the cardinal issues for the appellant to accept the contract. Secondly, the appellant had the option to call Dipesh Dipu to confirm the real position, regarding the sale of the personal to holder vehicle, seeing that they were exchanging e­ mails, but he did not do so. Clearly, the appellant was entitled to purchase the personal-to-holder vehicle under his earlier contract with the 1st respondent and not under his contract with the 2nd respondent. Anyhow, clause 9.3 of the Letter of Appointment clearly provided that the Terms and Conditions of service contained therein were final and binding to both parties, i.e. both the employer and the employee and the employer reserved the right to revise, modify or delete any of the terms and conditions stated therein at any time and the employee was to be informed accordingly of such changes. - % . J34 On these facts, we cannot admit parole evidence as it would clearly add to, vary or contradict the terms and conditions agreed to by the parties in the written contract. Neither can we apply the principle of estoppels or take judicial notice of the practice in most public and private institutions to sell personal-to-holder vehicles when the contract of employment did not allow the appellant to purchase the motor vehicle. For this reason, we find no merit in this ground of appeal and we dismiss it. We come now to ground 9 of the appeal. The trial court directed that the damages for wrongful and unfair dismissal, notice pay and accrued leave days should be based at the monthly salary of K20,000,000.00 as that was the salary agreed in the letter of appointment. The question is whether the appellant’s exit salary was K20,000,000.00 or K29,000,000.00. We agree with the appellant that his evidence that the salaries for all the managers at the 1st respondent were adjusted upwards by the oral instructions of the CEO was confirmed by his witness. And the pay statements in the appellant’s name, for September and October, 2010 which are on record, show a basic pay of K29,000,000.00 while the pay statements in the name of Alex Mutale, for the same months, show a basic pay of K30,000,000.00. This again is consistent with the appellant’s evidence. ? * J35 On the other hand, the respondents have disputed this evidence and argued that the pay slips were authored by the appellant, a fact the latter accepted. In our view, the trial court made a finding of fact which was supported by the contract between the parties and we find no basis on which to disturb that finding. From the record, the appellant’s testimony was that his monthly bonus of K9,000,000.00 was amalgamated into the salary and formed part of the K29,000,000.00 monthly salary and that it was the CEO of the 1st respondent who instructed him to effect this salary. There was evidence elicited in cross-examination from RW1 to the effect that the appellant’s salary was K29,000,000.00 and that the pay statements produced by the appellant were authentic. Nonetheless, in his evidence in re-examination, he reversed and said that the appellant’s salary was K20,000,000.00 per month and that what applied to the General Manager did not apply to the appellant as the General Manager’s contract was with the 1st respondent while the appellant’s contract was with the 2nd respondent. We have said in our judgment that the appellant was employed by the 2nd respondent and only seconded to the 1st respondent. There was no evidence that the 2nQ respondent authorised the CEO of the 1st respondent • J36 to increase the appellant’s salary or to amalgamate the monthly bonus of K9,000,000.00 into the salary. In terms of clause 2 of the Letter of Appointment, the appellant’s gross basic remuneration was K20,000,000.00 per month and he was entitled to a bonus/allowance payout of K54,000,000.00 at the end of a 6 month period for every 6 month of service and pro-rated accordingly for a partial period of service. At termination of his employment, the appellant was entitled to receive a bonus payout of K54,000,000.00 for the first 6 months period as per contract. On the basis of all the foregoing, we find no merit in ground 9 and we dismiss it. We turn finally to ground 10 of the appeal which questions the non­ award of costs to the appellant. The gist of the appellant’s argument is that as he succeeded on the claim for unfair and or wrongful dismissal he should have been awarded costs or a percentage of the costs. We agree with counsel for the respondents that costs are always in the discretion of the court but we disagree with the respondents that the appellant required to obtain leave either from the trial court or this Court for him to appeal against the order for costs. Section 24 (d) of the Supreme Court of Zambia Act clearly states that no appeal shall lie, inter alia, from an order as to costs only (emphasis ours). This appeal is not solely against an order as to costs, and so the 2nd respondents’ argument is flawed. However, the trial court was justified not to order costs on ground that the appellant had failed on many of his claims. In any case, as we have said above in our judgment, the termination of the appellant’s employment was not wrongful or unlawful or unfair to justify an order for costs in his favour. Therefore, this ground of appeal equally fails and is dismissed. All in all, the appeal only partially succeeds to the extent indicated in ground 3. Nevertheless, the partial success in ground 3 does not affect the outcome of the appeal because the rest of the appellant’s grounds of appeal lack merit and we dismiss them in their entirety. We now come to the cross-appeal. As we have already said, the one ground of cross-appeal assails the trial court for failure to provide reasons for deciding that the termination of the appellant’s employment was wrongful and unlawful. It is clear from the judgment that the trial court gave reasons, for its decision. For this reason alone, the cross-appeal fails. Suffice to say we have found the reasons given by the trial court untenable since the 2nd respondent had the right to terminate the employment by three months’ notice or three months’ pay in lieu of notice J38 nafceand theappellant was given one month’s notice for purposes of handover and he received his monthly pay and two months’ pay in lieu of notice. Inthe circumstances of thiscase, we make no order as to costs. E. C. MUYOVWE SUPREME COURT JUDGE R. M. C. KAOMA SUPREME COURT JUDGE