Zambia Medicines Regulatory Authority v Brian Muwanei Kabika (APPEAL NO. 100 OF 2023) [2025] ZMCA 84 (31 March 2025)

! IN Ta'. E COURT OF APPEAL APPEAL NO. 100 OF 2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ZAMBIA MEDICINES REGULATOR APPELLANT AND BRIAN MUWANEI KABIKA RESPONDENT CORAM: KONDOLO SC, MAJULA, MUZENGA JJA On 26th March, 2025 and 31st March, 2025 For the Appellant: Mr. F Mudenda & Mr. G Pindani of Messrs Chonta For the Respondent: Mrs. F . Muchiya of Florence Muchiya & Musaila & Pindani Advocates Associates JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court. CASES REFERRED TO: 1. Mohammed v The Attorney General ( 1982) ZR 49 2. Rosemary Ngolima & 10 Others v Zambia Consolidated Copper Mines SCZ / 97 / 2000 3. Lusaka City Council & National Airports Corporation v Grace Mwamba & Others ( 1999) ZR 97 J2 of 44 4. Paul Siame v Industrial Development Corporation & the Attorney General CAZ/ 43 / 2020. 5. GDC Logistics Ltd v Joseph Kanyanta & 13 Others SCZ/17/2017 6. Attorney General v Marcus Kapumba Achiume ( 1993) ZR 7. Philip Mutantika & Sheal Mulyata v Kenneth Chipuma SCZ/94/2019 8. Abraham Nyirenda v Mulungushi Village Complex Limited SCZ/2016 9. Noriana Mseteka Muneku v Zambia National Building Society 2012/HP/ 1164 10. Holmes Limited v Buildwell Construction Limited ( 1973) ZR978 11. Indo-Zambia Bank v Mushaukwa Muhanga (2009) ZR. 12. Yengwe Farms Limited v Masstok Zambia Limited SCZ/11/1999 13. Ju Fred Lungu Matenda & Road Development Agency Appeal No. 132/2016(SCZ/8144/2015) 14. Zambia National Commercial Bank PLC v Geoffrey Muyamwa and 88 Others SCZ 37 of 201 7 15. Mazoka & Others v Mwanawasa & Others (2005) Z. R. 135 16. Attorney General v Clarke (2008) ZR Vol.1 17. Cornish v Accident Insurance Company (1889) QBD 453 J3 of44 LEGISLATION REFERRED TO: 1. Industrial & Labour Relations Act CAP 269 2. Pharmaceutical Act No. 14 of 2004 3. Medicines & Allied Substances Act No. 3 of 2013 4. Court of Appeal Act No.7 of 2016 1. INTRODUCTION 1. 1. This is appeal is against the Judgment of the High Court Industrial Relations Division (HCIRD) delivered on 19th January, 2023 by Mrs. Justice Mwaaka Chigali Mikalile in which she granted the Respqndents claims against the Appellant in relation to cell phone allowance and car allowance for the duration of his employment. 1.2. The Appellant was the Respondent in the lower Court and the Respondent was the Complainant. We shall maintain the nomenclature as it appears in the title of this appeal. 2. BACKGROUND 2.1. The Respondent was employed by the Appellant and a dispute arose between the parties when the Appellant allegedly declined to pay the Respondent his cell phone and motor vehicle allowances. J4 of 44 3. HIGH COURT PROCEEDINGS 3.1. The Respondent filed a complaint at the HCIRD seeking the fallowing relief; 1. Payment of cell phone allowance for 143 months as at 315t November, 2019 2. Payment of the sum of K280,269.80 under payment of motor vehicle allowance for 80 months as at 31st December, 2019 3. Payment of 30% and not 15% motor vehicle allowance per month from the date of Judgment as provided for in the conditions of service. 4. Payment of cell phone allowance per month from date of Judgment 5. To be placed on the correct monthly motor vehicle allowance 6. Payment of monthly cell phone allowance 7. Interest 8. Costs of and incidental to this action. 9. Any other relief the Court may deem fit. 3.2. Respondents Case (Complainant) JS of 44 3.3. The Respondent was employed by the Appellant on 1st November, 2007 when the Appellant was called the Pharmaceutical Regulatory Authority (PRA) and established by the repealed Pharmaceutical Act No. 14 of 2004 (Act No. 14) and his conditions of service entitled •him to a cell phone allowance. 3.4. In 2013 Act No. 14 was repealed by the Medicines & Allied Substances Act No. 3 of 2013 which renamed the PRA as Zambia Medicines Regulatory Authority (ZAMRA) 3.5. The Respondent was on 27th February, 2018 promoted to the position of Principal Regulatory Officer under Division 1 scale/ grade 4. According to the Respondent, ZAMRA introduced additional conditions of service under which the Respondent was now entitled to a car allowance. 3.6. A dispute arose between the parties when the Appellant allegedly denied paying the Respondent his cell phone and motor vehicle allowances without explanation. He claimed that he was entitled to the allowances under the previous and current conditions and that he had suffered loss and damage on account of being denied his allowances. J6 of 44 3.7. In cross-examination the Respondent agreed that only the Board could approve conditions of service under the 2007, 2008 and 2013 conditions of service. He further agreed that he was not entitled to a personal to holder vehicle. 3.8. The Respondent explained that ZAMRA classifies its employees into Divisions and not levels and does not classify that he was neither level 1 nor level 2. 3.9. He refuted the assertion that clause 6.15 of the 2013 ZAMRA conditions of service were transcribed in error. 4. APPELLANTS CASE 4.1. The Appellant answered by affidavit attesting that Cabinet Office Public Service Management Division (PSMD) guidelines dictated that the purpose of phone allowance was to facilitate duty and not for personal benefit or personal remuneration. The Appellant called 2 witnesses to testify on its behalf, RW 1 and RW2. 4.2. RWl explained that the cell phone allowance could not be paid from May 2007 to March 2008 because the conditions of service could only be effected after being determined and approved by the board and during the stated period a board had not been appointed. J7 of 44 4.3. That management instead started paying imprest whereby inspectors travelled around the country and would request payment of duty facilitation allowances such as subsistence and cell phone allowance to buy airtime. After the activity they would produce activity reports and retire the imprest. 4.4. That the 2008 conditions of service were merged and replaced by new conditions of service in 2013. 4.5. That this followed a decision by PSMD that conditions of service in statutory boards must be rationalised and that the grades would be from levels 1 to 10. It was also decided that allowances would be merged into the basic salary. Facilitation allowances, transport, housing and fuel allowances remained separate. 4.6. That clause 6 . 15 of the 2013 ZAMRA conditions of service entitling employees in Division I and II was mistakenly inserted. That a cabinet circular dictated that only Level 1 and Level 2 employees were entitled to personal to holder vehicles and motor vehicle allowance whilst the rest of the civil servants/ employees were entitled to transport allowance. JS of 44 4.7. That though the Respondent fell in Division I since 2015 he was a permanent employee in ZAMRA salary scale 4 which provided a transport allowance of 15% of the basic salary and not a motor vehicle allowance. That the Respondent was aware of this fact and had at one time requested that transport allowance be withdrawn and instead be provided transport. 4.8. That only the Chief Executive Officer and Directors who were short time contractual employees receive a motor vehicle allowance of 30% of the basic salary. They are allocated personal to holder vehicles and they receive the 30% allowance because they service the cars themselves and buy their own tyres. That the Respondent had no personal to holder vehicle. 4.9. That the 2019 conditions of service determined and approved by the board did not provide for cell phone and car allowances. 4.10. In cross-examination RWl on behalf of the Appellant conceded that clause 6.5 under the 2007 conditions of service used the word "shall" but he insisted that it was not paid because the board never determined the allowance. J9 of 44 4.11. That management decided to implement it by paying imprest when duty was undertaken. 4.12. RWl insisted that as an Inspector, the Respondent fell under level 4 but when pressed he stated that he had no document showing that ZAMRA employees were categorised under levels. RW 1 conceded that the 2013 conditions of service did not show that division I covered grades 1 to 6. 4.13. He stated that management implemented fuel allowance instead of the vehicle allowance. He claimed that the employees did not object but conceded that he had no proof that the Respondent had accepted the change. He agreed that the Respondent had written to management complaining about not receiving his allowances. 4.14. RW2 told the Court that ZAMRA operated with no board for close to 4 years. RW2 conceded that the Respondents payslip shows that he was in Division 1 but also showed that he was on ZAMRA 4 which meant grade 4. He stated that the payslips were supposed to display levels and not divisions. JlO of 44 4.15. He stated that only employees with personal to holder vehicles were entitled to motor vehicle allowance but had no document to support the assertion. 4.16. RW2 further stated that adopting the harmonization report was not mandatory but left to individual operations. He conceded that there was no document showing that ZAMRA had adopted the harmonisation report and there was no document showing which levels had been adopted by the Appellant. 5. HIGH COURT DECISION 5.1. The trial Court found as a fact that the applicable conditions of service during the Respondents tenure were the PRA conditions of service of 2007 and 2008 and later the ZAMRA conditions of 2013 and his employment with ZAMRA terminated on 24th July, 2020. 5.2. The learned trial Judge commenced her Judgment by restating the legal principal that he who alleges must prove. (See Khalid v Mohammed v The Attorney General 11l. She noted that the 2007, 2008 and 2013 conditions of service all stated in mandatory terms that the Inspectors shall be paid a cell phone allowance subject to determination by the board. Jll of44 5.3. That the Courts duty was to enforce the terms of the contract as guided by the Supreme Court in the case of Rosemary Ngolima & 10 Others v Zambia Consolidated Copper Mines 121 that employers and employees are bound by the conditions they set out for themselves. 5.4. The learned trial Judge held that inertia by the board in determining the rate of the cell phone allowance could not work to the disadvantage of the employees. 5.5. Managements initiative of providing imprest in place of the cell phone allowance did not exonerate the obligation to pay the cell phone allowance. The learned trial Judge held that it was an accrued personal benefit that should have been paid monthly. The claim was upheld. 5.6. With regard to the motor vehicle allowance the learned trial Judge observed that clause 6.15 provided that the allowance would be paid to employees in Division I and II. That the Respondents payslip showed that he was in Division I Grade 4 and that he was being paid transport allowance. 5.7. The learned trial Judge observed that according to the 2013 conditions of service, transport allowance was to be paid to employees in Division III and below. J12 of 44 5.8. The lower Court noted that there was no evidence pointing to whether Grade 4 did or did not fall in either Division I or II. The Court also considered that the Appellants witnesses stated that it was not mandatory for the statutory boards to adopt the harmonisation report. 5.9. The learned trial Judge stated that in the circumstances, it was unmerited to accept that the Appellants inclusion of clause 6 .5 on motor vehicle allowance was done in error. 5.10. The lower Court noted that the Complainant had complained about the non-payment of his allowances as far back as 2018 but the issue was not formally addressed and that no documentary evidence had been produced to substantiate the so-called error. She distinguished the facts in casu from those in the case of Lusaka City Council & National Airports Corporation v Grace Mwamba & Others131 where letters issued in error were withdrawn by the Council. That in casu, to date no action had been taken on the clause allegedly inserted by error meaning that the clause was applicable. 5.11. The trial Judge dismissed the Appellants assertion that the 2013 conditions of service were never approved by the board J13 of 44 because the evidence showed that they were actually being implemented and no evidence was adduced to show that they were not approved. 5.12. She found in favour of the Complainant and ordered the following reliefs; 1. Payment of cell phone allowances for the duration of his employment. 2. Payment of the difference between the transport allowance paid to the Respondent and the motor vehicle allowance that he should have been paid. 3. The awarded sums to be assessed by the DR 4. The awarded sums to attract interest at short term bank deposit rate from the date of filing the notice of complaint to the date of Judgment and thereafter at current bank lending rate as determined by the Bank of Zambia 5. Each party to bear its own costs. 6. APPEAL 6.1. Dissatisfied with the High Court decision, the Appellant has appealed on the following grounds; J14 of 44 1. That the Court below erred both in law and in fact at page J .33 of the Judgment when it Ordered or held that the Respondent be paid cell phone allowance for the duration of his employment up to the termination of his employment on 24th July, 2020 when the Respondent had restricted his claim for cell phone allowance to 31st November, 2019. 2. That the Court below erred both in law and in fact at page J.25 of the Judgment by holding that the Respondent was mandated to pay the cell phone allowance to all employees in its Inspectorate Department regardless of the position held when all the three sets of the Appellant's conditions of service for 2007, 2008 and 2013 had a condition precedent to the payment of cell phone allowance namely determination or approval by the Appellant's Board. 3. That the Court below erred both in law and in fact at page J25 by holding that under all the Appellant's three sets of conditions of 2007, 2008 and 2013 the clause on payment of cell phone allowance was couched in mandatory terms due to the use of the word 'shall' disregarding or not taking into account the import or meaning of the whole clauses which have a condition precedent namely JlS of 44 determination or approval by the Appellant's Board. 4. That the Court below erred both in law and in fact at page J27 of the Judgment that the Appellant's argument that the cell phone allowance was not remunerative but duty facilitating lacked merit ignoring the evidence on record. 5 . That the Court below erred both in law and in fact at page J31 of the Judgment by holding that no documentary evidence was adduced by the Appellant to substantiate the error made in transcribing the conditions of service from the Report on Harmonisation and Rationalisation of salaries and conditions of service for Statutory Boards under the Ministry of Health when there was both oral and affidavit evidence to the effect that clause 6.15 of the Appellant's 2013 conditions of service was transcribed in error as only the Appellant's employees in Level I and Level II who had personal to holder motor vehicles were entitled to motor vehicle allowance. 6. That the Court below erred both in law and in fact at page J32 of the Judgment by holding that the Appellant's 2013 conditions of service must be interpreted against the Respondent who drafted the same when there was no J16 of 44 ambiguity in clause 6.15 of the Appellant's 2013 conditions of service providing for motor vehicle allowance but error and or mistake was alleged. 7. That the Court below erred both in law and in fact at page J30 of the Judgment by holding that there was no evidence to establish what the Appellant's grade 4 equated to in terms of levels and that as the evidence stood the possibility that grade 4 belonged to either Level I or Level II could not be ruled out, when there was evidence on record that the ones entitled to motor vehicle allowance at 30% were the Appellant's Chief Executive Officer and Directors who were under Levels I and II respectively. 8. That the Court below erred both in law and in fact at page J30 of the Judgment when it Ordered the Appellant to pay the Respondent the difference between the motor vehicle allowance and transport allowance already paid out without stating the period. 6 .1 APPELLANTS ARGUMENTS 6.2 GROUND 1 6 .3 In gr ound on e th e Appellant took issu e with the fact th at the learned trial Judge award ed the Respondent cell phone J17 of 44 allowance for the duration of his employment until it was terminated on 24th July, 2020. 6. 4 The grievance is founded on the fact that the Respondents claim read as follows; "Payment of cell phone allowance for 143 months as at 31 st November 2019" 6.5 It was argued that the law is replete with authorities that state that Courts are limited to awarding parties what they have has pleaded. On this point reference was made to our decision in the case of Paul Siame v Industrial Development Corporation & the Attorney General 141. 6.6 It was further submitted that new conditions of service were introduced in November, 2019 which did not provide for a cell phone allowance. That the Respondent did not claim cell phone allowance beyond that date because he was aware of that fact. 6.7 It was emphasised that even though the HCIRD is a Court of substantial justice with power to grant any award it considers fit in the circumstances of the case, substantial justice must weigh equally for both sides. The case of GDC Logistics Ltd v Joseph Kanyanta & 13 Others 151 was cited in support of this point. J18 of 44 6.8 GROUNDS 2 & 3 6.9 Grounds 2 and 3 were argued together and it was submitted that regardless of the mandatory nature of the word "shall" the lower Court should have taken into account the whole context of the provision on cell phone allowance. 6.10 It was argued that the allowance could not be paid before it was determined by the board because determination or approval by the Board was a condition precedent. That the language used in the provision clearly indicated that the cell phone allowance had to be determined by the Board. Blacks Law Dictionary, 8 th Edition, was adverted to on the definition of condition precedent. 6. 11 We were urged to exercise our power to reverse findings of lower Courts as set out in Attorney General v Marcus Kapumba Achiume 161. 6.12 Ground 4 6.13 The main argument in ground 4 was that the learned trial Judge did not place sufficient consideration on and ignored evidence by the Complainants witnesses that the cell phone allowance was a facilitative allowance and not a J19 of 44 remunerative one. That the allowance was paid in order to facilitate the work of Inspectors such as the Respondent. 6.14 It was further submitted in this ground that in the absence of the cell phone allowance, management replaced the allowance with imprest that had to be retired. That this was indicative that the cell phone allowance was facilitative and this ground of appeal should therefore be allowed. 6.15 Grounds 5, 6, and 7 6.16 Though the Appellant argued these grounds separately, we have condensed the arguments as they all relate to the question as to whether or not the Appellant was entitled to Car allowance. 6.17 The Appellant implored us to consider the Report on the Harmonisation and Rationalisation of Salaries and Conditions of Service for the Statutory Boards under the Ministry of Health and the evidence of RW2 who explained how the report (Harmonisation Report) was aimed at harmonising the conditions of service across the Statutory Boards under the Ministry of health. 6.18 According to the Appellant it was clear that the intention was to restrict the payment of car allowance to Level 1 and 2 J20 of 44 officers who were basically Chief Executive Officers and Directors. 6 . 19 That a mistake was made when drafting the 2013 ZAMRA conditions of service whereby in describing the grades of employees entitled to motor vehicle allowance, the word "Division" was used instead of using the word "Level" and the Respondent was trying to capitalise on the error because his payslip indicated that he was in Level 2. 6.20 It was pointed out that the same payslip indicated that he was in ZAMRA Grade 4 which was neither in Level 1 nor Level 2. That the Respondent was only entitled to the transport allowance which was paid to him and that he was the only employee making this claim. 6. 21 That page 12 of the Agreed Common Rules on Allowances at page 12 of the Harmonisation Report at p. 366 of the Record of Appeal (ROA) shows that for regulatory boards only Levels 1 and 2 were entitled to motor vehicle allowance at 30% of basic salary whilst the rest would be paid transport allowance at 15% of basic salary. J21 of 44 6.22 The case of Lusaka City Council & National Airport Corporation supra was cited where the Appellants were allowed to withdraw offers that were issued in error. 6.23 It was submitted that the learned trial Judge did not place sufficient consideration on the documentary evidence, affidavit evidence and the testimony of RW2 and prayed that this ground of appeal be allowed. 6.24 Ground 6 was on the application of the contra proferentum rule. Blacks Law Dictionary was cited where the contra proferentum rule is defined as follows; «contra proferentum (Latin «against the offeror"). The doctrine that, in interpreting documents, ambiguities are to be construed unfavourably to the drafter." 6.25 According to the Appellant the doctrine was inapplicable because the Appellant had alleged error /mistake when clause 6.15 was being transcribed and that there was no ambiguity in the clause. 6.26 Because of our decision 1n ground 6 recounting the arguments in ground 7 will serve no purpose. 6.27 Ground 8 6.28 It was argued that the learned trial Judge erred by not J22 of44 specifying the period over which the Appellant should be paid the difference between the transport allowance and the motor vehicle allowance. That in casu it is not clear whether the payment is up to 31st December, 2019 or when the Complainant left employment on 24th July 2020 6.29 It was submitted that a Judgment should be clear and not the subject of interpretation. That if the latter was the case, the Respondent would not be entitled under the November 2013 conditions of service. 6. 30 Because of the opinion we hold in respect of ground 5, recounting the arguments with regard to grounds 6, 7 and 8 will serve no purpose. 7 RESPONDENTS ARGUMENTS 7 . 1 The Respondent indicated that he would respond to the Appellants arguments in three parts beginning with grounds 1 to 4 which he entitled Interpretation of the word shall, followed by grounds 5-7 with the heading An appellate Court should not inte rfere with findings of fa ct and lastly, ground 8 J23 of 44 entitled The Court has discretion to award in the interest of justice. 7. 2 Grounds 1 to 4 - Interpretation of the word shall 7.3 It was submitted that the employer - employee relationship of the parties was governed by the conditions of service of 2007, 2008 and 2013 which all provided for the payment of cell phone allowance and they all used the word "shall". 7.4 It was argued that where the word shall is used in a provision, it means the provision is mandatory. In support of this, reliance was placed on Black's Law Dictionary, 20th Edition page 192 and on the case of Philip Mutantika & Sheal Mulyata v Kenneth Chipuma 1s1. 7. 5 It was argued in this part of the reply that the cell phone allowance was an accrued benefit. It was submitted that accrued benefits cannot be taken away and the case of Abraham Nyirenda v Mulungushi Village Complex Limited 1s1 was cited in support. 7.6 It was in this vein submitted that the lower Court was on firm ground when it decided that the Appellants failure to constitute a Board cannot operate against the Respondent. J24 of 44 7.7 It was further submitted that the definition of"allowance" had no bearing on the Appellants responsibility to pay cell phone allowance and that the phrase "as approved by the board from time to time" was in relation to the boards power to review the amount to be paid from time to time. 7.8 The High Court case of Noriana Mseteka Muneku v Zambia National Building Society 191 was referred to where the conditions of service indicated that a bonus would be paid as determined by the Board. When the Plaintiffs employment was terminated the board had not determined the bonus and it was held that non-performance by the board did not take away an employee's entitlement. 7.9 It was submitted that likewise, the Respondent was entitled to payment of the cell phone allowance and that grounds 1 to 4 of the appeal be dismissed. 8 Grounds 5 to 7 - An Appellate Court should not interfere with findings of fact 8.1 The arguments under this heading were in relation to the claim for motor vehicle allowance. 8 .2 It was argued that oral and affidavit evidence amounted to which were extrinsic evidence could not vary clause 6. 15 J25 of 44 which provided that motor vehicle allowance would be paid at 30% of basic monthly salary for Division I and II employees. The case of Holmes Limited v Buildwell Construction Limited 1101 was called in aid where it was held that except in the case of fraud parol evidence cannot be admitted to add or contradict a deed or other written documents. 8.3 It was submitted that the Appellants three sets on conditions of s ervice for 2007, 2008 and 2013 all referred to Divisions and none of them made any references to Levels. It was submitted that the argument in ground 7 that the Appellants employees wer e categorised in levels should be dismissed. 8 .4 The case of Indo-Zambia Bank v Mushaukwa Muhanga 1111 was cited on the contra prof erentum rule where it was held if the insertion of the words permanent and pensionable in an employment document was the result of careless drafting by the Appellant, the document must be construed in favour of the Respondent. Therefore, any mistakes in the 2013 conditions of service must be construed in favour or the Respondent. 8.5 That the Appellant was a statutory body and section 12 (7) J26 of44 of the Medicines and Allied Substances Act supra allows the Appellant to determine conditions of service for its staff. That it was not bound by the harmonisation report which is at pages 369 and 370 ROA states at clause 5. (d) that, "the implementation of the rationalized salaries should depend on the institutions capacity to pay". 8.6 It was submitted that a circular is merely a policy aimed at giving guidance and is not intended to override the law. That the harmonisation policy could therefore not override the boards statutory power to come up with conditions of service for the Appellants employees. The case of Yengwe Farms Limited v Masstok Zambia Limited 1121 was cited to this effect. 8 .7 It was pointed out that there was no document that indicated that only officers with personal to holder vehicles were entitled to motor vehicle allowance. That RWl admitted in the Court below that the Respondent was in division II and that the Respondent had never been in division III to entitle him to transport allowance. J27 of 44 8.8 That the Director General and Directors were contract employees, not amenable to the 2013 conditions of service and could therefore not be used as a comparison to the Respondent. 8.9 That the Respondents payslip showed that he was in Division II Grade 4. The case of Lusaka City Council & National Airports supra was distinguished from the case at hand because in that case the letters of offer were withdrawn whereas in casu the Appellant made no effort to correct the purported error. That clause 6 . 15 was not ambiguous. 8 . 10 The Respondent prayed that grounds 5 , 6 and 7 be dismissed. 8.11 It was submitted that the facts in casu did not meet the threshold to warrant this Court to interfere with the trial Judge's findings of fact. Several cases were cited in support including the case of Ju Fred Lungu Matenda & Road Development Agency 1131. 8.12 It was pointed out that the lower Court had stated that there was no evidence to establish what Grade 4 equates to in terms of Levels and also found as a fact that RW 1 had stated that the harmonisation report was not mandatory and was not fully implemented. That the lower Court decided that in J28 of 44 the face of such evidence it would be unmerited to accept that the use of Divisions and not Levels was an error. 8.13 It was in that regard submitted that the contra proferentum rule should be applied against the Appellant who claims to have made an error born of careless drafting. Halsburys Laws of England paragraph 536 Vol 16 was cited where it states as follows; "where the terms of a written contract of employment are precise, oral evidence is not admissible to show that such terms were varied by oral stipulations at the time of contract." 8 . 14 Ground 8 - The Court has discretion to award in the Interest of Justice 8.15 It was submitted that all the Court did was order that the Respondent be paid motor vehicle allowance at 30% as pleaded in the Notice of complaint as of 31 st December, 2019 less the 15% he was receiving as transport allowance. That the Court did not order that he be paid up to July, 2020. 8.16 That section SSA (d) of the Industrial Relations Act gives the Court wide powers to make any order it may consider fit J29 of 44 in the circumstances of the case. It was submitted that such an award should not lead to unjust enrichment. 8.17 That in casu, the trial Court made proper awards which we were urged to uphold and it was submitted that this Court should in fact order payment of motor vehicle allowance up to 24th July, 2024. 9 APPELLANTS REPLY 9.1 It was submitted that the Respondent had not advanced any counter arguments to ground 1 which, according to the Appellant amounts to conceding the ground. 9 .2 The Appellant repeated the argument that the cell phone allowance could only have been effected after the Board determined the rate of payment. It was reiterated that determination by the board was a condition precedent and that the learned trial Judge misdirected herself by concentrating on the mandatory nature of the word "shall" without considering that determination by the board was a pre-condition. 9.3 We were urged to interfere with the trial Courts findings of fact on account of the foregoing. Further reliance was placed on section 24 of the Court of Appeal Act. J30 of 44 9.4 With regard to the Noriana Mseteka Muneku Case supra it was submitted that nowhere in the Judgment did Chisanga J, as she then was, hold that non determination of the rate by the Board did not take away the Plaintiffs entitlement to be paid her dues. That in any event it was a High Court Case which did not bond this Court. 9. 5 In ground 5 to 7 the Appellants response was that section 85 (5) of the ILRAct states that the Court shall not be bound by rules of evidence and the parol evidence rule is a rule of evidence. Further that no objection was made to the affidavit evidence and when oral evidence was being given in the High Court. That it was trite law that an issue not raised in the High Court cannot be raised on appeal. 9.6 That the finding of the lower Court that the prosecution led no evidence of having made an error in clause 6 .15 was perverse and must be reversed because, evidence to that effect was in fact led. 9. 7 In ground 6 the response was that, save for the error in trnscribing, clause 6.15 was not ambiguous and the contra proferentum rule was inapplicable. 9.8 It was further submitted that the Appellant had misrepresented the case of Yengwe Farms Limited supra as J31 of 44 it did not state that circulars are not intended to override the law. It simply stated that circular No 1 of 1985 is intended to . give guidance to the District Councils which make recommendations for allocation of land to the Commissioner of Lands. 9.9 The arguments in ground 7 and ground 8 were repeated. 10 THE HEARING 10.1 At the hearing both parties relied on and both augmented their filed heads of argument with oral submissions. 10.2 Mr. Mudenda on behalf of the Appellant basically repeated the contents of the filed arguments but emphasised that we pay particular consideration the manner in which the HCIRD can exercise its power under section 85A (d) ILRA. 10.3 This was in relation to ground 1 on the argument that the lower Court should not have awarded damages in relation to the cell phone allowance far in excess of the period claimed by the Respondent. We were referred to the case of Zambia National Commercial Bank PLC v Geoffrey Muyamwa and J32 of 44 88 Others 1141 (ZANACO CASE) and particularly to pages 46- 49. 10.4 Mr. Mudenda stated that the real reason the Respondent limited his claim of cell phone allowance to 31 st December, 2019 was because the 2019 conditions of service did not provide for the allowance. 10. 5 In ground 5 the learned counsel asked us to take judicial notice about what happens in the Government of Zambia on fuel allowance allocation. 10. 6 Finally, we were once again asked to exercise our power to interfere with the lower Courts findings of fact. 10.7 In response, Mrs Muchiya on behalf of the Respondent opined that the ZANACO CASE was distinguishable from the case at hand. That in the cited case the Supreme Court overturned the lower Courts award of long service gratuity to employees who were not entitled to it whereas in casu the claim for cell phone allowance was pleaded. 10.8 That all the Court did was award the cell phone allowance for months not pleaded. That the Respondents pleading was limited to December 2019 because the Complaint was filed in December 2019 whilst the Respondent was still in J33 of 44 employment as his employment was only terminated in June 2020. 10.9 It was further submitted that the question of the 2019 conditions of service was not brought up in the lower Court and in any event the Appellant had not shown that the Respondent had consented to the 2019 conditions of service. 10. 10 On ground 5, the Respondent maintained his arguments in the filed heads of argument. 11 ANALYSIS AND DECISION 11.1 We have considered the record of appeal and the arguments advanced by the parties. We shall begin by considering Grounds 1 and 8 together, followed by grounds 2, 3 and 4 which shall also be considered together and finally by grounds 5, 6 and 7 which shall also be considered together. 11.2 Ground 1 & 8 11.3 We have noted Mr. Mudenda's forceful arguments on behalf of the Appellants in grounds 1 and 8 that the learned trial judge erred by awarding the cell phone allowance up to the date when the Respondents employment was terminated J34 of 44 when he had specifically claimed payment up to 3 1s t December, 2019. 1 1.4 We have considered his argument that whilst exercising its wide power under section 85A (d) of the HCIRD the said power does not exist in a vacuum. He cited the ZANACO Case in which, according to him, the Supreme Court had directed, at pages 46 to 49 on how the power should be exercised. 11.5 In the cited case the Supreme Court stated as follows; "The decision w e have made in the preceding paragraph follows our consideration and dismissal of the argument by counsel for the Respondents that the court below was on firm ground when it ordered payment of long service gratuity though it was not specifically pleaded because the court below enjoys jurisdiction to award any remedy it deems reasonable as per the Matales Case and due to the fact that it is a Court of substantial justice. We have dismissed this argument because, though oit ios true that the court below is at large to award any remedy it deems suitable in doing substantial justice, it J35 of 44 must not be one-sided nor is it akin to trial by ambush and must, therefore, not override the basic tenets of justice by which a party is afforded a right to be heard on a remedy sought by the opponent. Consequently, the respondents in this matter can only invoke the principal of substantial justice on their quest for an award of long service gratuity if they can show that the Appellants right to be heard on the claim has not beem breached. This, they should have done, by showing that they pleaded long service gratuity and led evidence on it. In this case, the record clearly shows that long service gratuity was not an issue and as such not addressed by the Appellant. The Court below was, therefore, not at large to award it." 11.6 We agree with the Appellant that the law on pleadings is well established to the effect that parties are bound by their pleadings because the parties' arguments against each other will be directed by the pleadings. Pleadings serve the purpose of enabling parties particularly the defendant to plan his defence. See the cases of Mazoka & Others v • J36 of 44 Mwanawasa & Others '151 • This point is emphasized in the ZANACO Case cited by the Appellant. 11.7 There are however, some exceptions to the rule on pleadings. An example is that the Court is allowed to consider an issue which was not pleaded where it was brought up in the evidence and the other party raised no objection when it was advanced. See the case of Attorney General v Clarke (2008) ZR Vol.1; "A party cannot rely on unpleaded matters except where evidence on the unpleaded matters has been adduced in evidence without objection from the opposing party. " 11.8 Another exception sits in section 85A (d) ILRA which frees the High Court Industrial Relations Division from being bound by the strict rules of evidence. 11. 9 Secondly, the trial Judge did state that she had decided to exercise her power under section 85A ( d) ILRA which empowers the Court to make any award that it feels suits the circumstances of the case. 11 .10 Mrs Muchiya explained quite adequately that the reason the claim was capped to 31 st December, 2019 was because the • J37 of 44 Respondent decided to litigate whilst he was still in employment. She argued that the payment of cell phone allowance had been pleaded it was merely a question of the duration. 11.11 Mr. Mudenda further argued that ground 1 had not been opposed by the Appellant and this in itself amounted to an admission. However, it is a well-established requirement that even where a party has not opposed a ground of appeal, an Appellant still has to prove himself to convince the Court into upsetting the judgement of the lower Court. 11.12 We have considered the arguments on this point and in the face of the general principal that an employee is entitled to payment of his terminal package calculated up to his last day of work, we hold the view that the learned trial Judge did not overreach when she exercised her power under section SSA ( d) ILRA. 11.13 We find no merit in the argument with regard to ground 8 that the Judgment is not clear because, quite to the contrary, the learned trial Judge's findings vis-a-vis the allowances is actually quite clear. • J38 of 44 11.14 The award is found at page J33 of the Judgment (page 41 ROA) . We have taken the liberty to reproduce her reasoning verbatim, albeit broken down into three bullet points as follows; • "The respondent shall pay the complainant cell phone allowance for the duration of his employment. • I note that his claim was restricted for the duration of his employment. However, it is a fact that he remained in employment until 24th July, 2020. • Thus pursuant to section 85A (d) of the Industrial and Labour Relations Act, I order payment of allowances as at the date of termination of the employment relationship" 11.15 The 3 rd bullet uses the word allowance in plural meaning it applies to the two allowances in contention. In any event, as already stated terminal benefits are payable up until the last day of work. The trial Court's use of section SSA ( d) was therefore justified as it did not amount to unjust enrichment as argued by the Appellant. 11.16 The last part of the Appellants argument regarding the possible inapplicability of the 2013 conditions of service if J39 of 44 the last day of work was considered in th e calculation has not been properly explained and we see no reasonable explanation for the proposition. 11.1 7 Grounds 1 and 8 are therefore dismissed for lack of merit. 11.18 Grounds 2 , 3 & 4 11. 19 In grounds 2 and 3, further on the question of cell phone allowance the parties offered different opinions on the unreported case of Noriana Mseteka Muneku v Zambia National Building Socie ty (2012/HP/ 1164). 11.20 We shall, however, not take the route of analysing the cited case because the provision on payment of cell phone allowance in the conditions of service appears to be quite clear. 11.21 It reads as follows; 6.5 Cell Phone Allowance Employees serving the inspectorate of the PRA shall be paid an allowance of cell phone as determined by the Board. 11.22 Our view of the provision is that in terms of this clause, involvement of the Board was not to determine whether or not the cell phone allowance should be paid but simply to determine how much to pay. • J40 of 44 11.23 We completely agree with the trial Judge's finding that malaise by the Board did not suspend the entitlement, it simply delayed management's ability to meet its obligation to pay cell phone allowance. Where an allowance is delayed on account of delay in determining the quantum, when it is finally determined, the allowance should be paid with arrears from the date when the condition of service took effect. We find no merit in grounds 2 and 3 and they consequently fail. 11.24 With regard to ground 4, we have considered the Appellant's argument that the cell phone allowance was facilitative and not remunerative and find that no convincing evidence was presented to the lower Court to support that argument. 11 .25 The fact that management introduced an accountable allowance paid by imprest that had to be retired demonstrates a completely different approach and departure from the provision of the cell phone allowance provided in the conditions of service. The stop-gap measure taken by management represents a facilitative allowance and if intended as the final method by which cell phone J41 of 44 allowance would be paid, it amounted to the Appellant unilaterally altering the condition of service on cell phone allowance. 11 .26 The manner in which the condition of service pertaining to the cell phone allowance was drafted appears more reflective of a remunerative allowance. The onus to prove that it was a facilitative allowance lay on the Appellant who failed to do so. 11.27 The learned trial Judge was on firm ground in her findings on this point and we find no merit in ground 4 . 11.28 Grounds 5, 6 & 7 11.29 Grounds 5, 6 and 7 are in relation to the alleged mistake made when transcribing clause 6 . 15 on motor vehicle allowance. 11.30 In ground 5 , we agree with the Appellant's argument that in the HCIRD, the rules of evidence are relaxed. Even though the threshold or benchmark on the procedural rules of evidence are lower than in the other divisions of the High Court, the Court will still apply the relevant rules of evidence when assessing and allotting weight to the evidence adduced by the parties. None of the parties are • J42 of 44 entitled to escape the requirement of having to prove one's case. 11.31 We do however note that in casu, the learned trial Judge assessed the affidavit and oral evidence advanced by the Appellant and made relevant findings of fact. We do not see any of the lower Courts findings as having been made without a proper assessment of the evidence before her or as perverse and therefore we find no reason to interfere with any of them. 11.32 In ground 6, despite the Appellants efforts to distinguish ambiguity and mistake as being two different things, his argument really has no foot to stand on as it is rendered impotent by the Judgment in Indo Zambia Bank Limited v Mushaukwa Muhanga supra which made it clear that mistakes caused by careless drafting must be construed against the drafter. 11.33 According to the reasoning 1n the case of Cornish v Accident Insurance Company 1181 the contra proferentum principle stipulates that the person who puts forward the wording of the proposed agreement may be assumed to J43 of 44 have looked after his interest and that any ambiguity will be construed against the party responsible for it. 11.34 The holding in lndo Zambia Bank Limited v Mushaukwa Muhanga supra, was somewhat tempered by the approach taken by the Supreme Court the case of Lusaka City Council & National Airports Case supra, where the Appellant quickly took action and withdrew the letter which had an error. In the circumstances of that case, the Supreme Court accepted that a mistake had been made and found the withdrawals of the letters agreeable. 11.35 However, and by contrast, in casu the error was made in 2013 when drafting the conditions of service but as at December, 2019 when the Respondent filed his complaint, the Appellant had made no effort to amend the alleged mistake. 11.36 The Appellant took no steps to correct the alleged error and has only reacted after being sued for failing to pay the Appellant according to clause 6.15. We find no merit in the Appellants arguments in ground 6. 11.37 Further, we see no reason to interfere with the trial Courts findings of facts following her analysis of the evidence led ~ • J44 of 44 by the Appellant in trying to justify that it had made a mistake when transcribing clause 6.15. 11.38 Having reached the conclusion that we have in ground 6 considering the arguments in ground 7 will serve no purpose. 11.39 In the premises, this appeal is dismissed in its entirety and this being a HCIRD matter, each party to bear its own costs. M. KONDOLO, SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE