Clement Filliot Godfrey Mukosa and Anor v Zambezi River Authority (Appeal No.226/2016) [2019] ZMSC 385 (9 December 2019)

• JONATHAN KANGWA AND lST APPELLANT 2ND APPELLANT ZAMBEZI RIVER AUTHORITY RESPONDENT CORAM: Mambilima, CJ, Malila and Kajimanga JJS On 3 rd December 2019 and 9 th December 2019 FOR THE APPELLANT: Mr. A. Chileshe of Messrs Mambwe, Siwila & Lisimba Advocates FOR THE RESPONDENT: Mr. W. Mubanga, SC of Messrs Chilupe & Permanent Chambers JUDGMENT Kajimanga, JS delivered the judgment of the court. Cases referred to: 1. Shadrick Wamusula Simumba v Jama Banda and Lusaka City Council (2013) Z. R. 242 2. National Milling Corn.pany Limited v Grace Simataa and Others (2000) Z. R. 91 3. Colgate Palmolive (Z) Inc v Abel Shemu Chika and Others - Appeal No. 11 of 2005 Introduct ion J2 1. This is an appeal from the judgment of the Industrial Relations Court (IRC) handed down on 11 th January 2015, dismissing the appellants' claims against the respondent for damages for breach of contract and redundancy benefits. 2. The appeal discusses whether, on the facts of this case, there was a unilateral variation of the appellants' contracts of employment. The appeal also considers whether the appellants executed their contracts of employment under duress. Background to the appeal 3. The facts of the case are that the appellants were employed on a permanent and pensionable basis by the respondent as director of water resources & environmental management and corporate secretary /finance director respectively. On 13th January 2004, the respondent commenced a restructuring and re-organisation exercise which authorised the termination of contracts of employment for senior staff in grades 1 and 2, the settlement of compensation packages and their subsequent engagement on five-year fixed term performance contracts. The J3 appellants' positions were retained 1n the new organizational structure of the respondent and they were re-appointed on renewable five-year fixed performance contracts. At the same time, the contract of employment for the respondent's director of project and dam safety, a Zimbabwean national, who was in the same grade as the appellants , was retained on similar conditions. 4. In March 2009, the appellants contracts were further renewed for a period of 2 years and 8 months effective 1st April 2009 to coincide with their attaining the age of 60 years in March 2012 . The offer was also conditional, i.e. subject to developing a successor and achieving performance targets. However, the Zimbabwean director's contract was renewed for a period of five years. Subsequently, in December 2011 , the appellants' contracts were varied to five-year non-renewable contracts effective 1st April 2009 , to terminate on 1s t April 2014. Upon their expiry, the appellants' contracts were not renewed while that of the Zimba bwean director was renewed for five years . Aggrieved by the non-renewal of their contracts, the a ppellants took out an action against the respondents in the court below. Pleadings before the IRC J4 5. In their notice of complaint dated 18th July 2014, the appellants claimed: 5.1 Damages for breach of contract, such damages consisting of 'Such gross :income the appellants would have earned had th,ey .s,erved the Authiority for a non-renewable term of five years, be:ing such ter.m that has been granted to their Zimbabwean counterpart; 5.2 A declaration that the appellants' contracts were unilate:raUy varied which resulted in the redundancy of the appellants. :5 .. 3 Redundancy hene:fits; and 5 .4 Costs. 6. The basis of the claim was that the respondent's actions were in breach of its recruitment and selection policy which required it to be fair and consistent, non-discriminatory on the grounds of sex, race, age, religion or disability, conform to statutory regulations and agreed best practice, promote equity of employment between Zambia and Zimbabwe. The appellants asserted that age was a factor taken into consideration by the respondent when it unilaterally varied their 2009 contracts to five-year non-renewable contracts. However, they had the capacity and \Vere willing to serve for another five years under their respective contracts and lost the potential income JS therefrom on account of the non-renewal. As such, the appellants were victims of discrimination on account of their age, being above the age of 60 years. 7. The respondent denied the claim and contended that the appellants' performance contracts were to the effect that upon completion of a five-year term on 31 st March 2014, the contracts would not be renewed. However, the contract for the Zimbabwean director provided that if he intended to renew his contract, he was obliged to inform the respondent in writing that he wished to be engaged for a further period., which he did. 8. It was also contended that the appellants' contracts were entered into freely and voluntarily and could therefore not have been unilaterally varied; and being non-renewable contracts, the appellants could not have lost the option of renewing them as alleged. According to the respondent, the appellants could not have lost income out of a non-existent contract which had since expired. 9. The respondent further contended that the age factor if it were unfair and having been discussed and settled by the J6 respondent's board on 2 nd December 2011 would have been challenged by the appellants especially having provided that the two directors' five-year terms would not be renewed. However, having not been challenged by the appellants, the same was formalized into contracts which were freely and voluntarily executed thereby binding the parties. Evidence of the pa.rties. in the court below 10. The I st appellant's evidence was that six months before the expiry of his last contract, his position as director of water resources & environmental management was advertised, yet there was no advert for the Zimbabwean director. At the time his contract came to an end, he was asked to leave employment whereas the contract for the Zimbabwean director was renewed. Thus, h e felt discriminated against because he was a Zambian. 11. He also testified that he was made to sign the contract of December 2011 in retrospect and that it is this contract which was breached as it was to end after 2014, had it been properly drafted. He, however, conceded that he freely signed this contract and if he did not do so, he would have lost his job. J7 12. The 2 nd appellant's evidence was that two days before the expiry of his five-year renewable contract of 2009, the appellants were offered contracts whose duration was 2 years 10 months and some days. The contracts were accompanied by a letter requesting them to execute the same if they accepted the offer and that they had no chance to complain, so they signed the contracts. However, they raised a complaint upon commencement of their contract as their colleague from Zimbabwe was given a five-year contract. 13. Subsequently, in November 2011 a board meeting was held to consider the appellants' grievances and it was resolved that their contracts would be renewed with effect from 1st April 2009 and expire on 31 st March 2014. The appellants then raised a query as to why their contracts were being backdated as their understanding was that they were being offered five-year contracts from November 2011. 14. The 2 nd appellant also testified that the new contract stated that upon its expiry, it would not be renewed and that no reasons \,vere given for the non-renewal. He stated that he ·was forced to JS sign the contract as he was a family man and if he did not, his children would stop going to school. Further, that he signed the contract because he thought the flaws in it would be corrected as the contract was running. According to him, the claim for breach of contract arose from the fact that the appellants had negotiated for a renewable five-year contract. 15. He went on to testify that having a Zimbabwean chief executive led to most decisions favouring the Zimbabwean employees. There was, therefore, inequality in terms of labour distribution. Instead of a 50 / 50 proportional distribution between the Zambian and Zimbabwean employees, there were instead more Zimbabweans. He also testified that frequent changes of permanent secretaries for Energy and Water Resources on the Zambian side worked against them . Th e permanent secretaries automatically became board chairpersons. This brought about instability and inconsistencies in decision making, policy formulation and indeed implementation. 16. Peter Kapinga, the respondent's board secretary/ corporate services director testified on its behalf. His evidence was tha t • the appellants' contracts ended in March 2014 by effluxion of J9 time and that concluded their employment relationship with the respondent. Further, that the issue of redundancy did not arise as their contracts ran their full terms and that no redundancy situation arose in the respondent. Consideration of the matter by the IRC 1 7. After considering the evidence and arguments by the parties, the trial court found that there was no unilateral variation of the appellants' contracts as they were entered into freely and voluntarily following the restructuring and re-organisation of the respondent. According to the court, the appellants were at liberty to opt out or accept new conditions of service in the new structure after the severance packages were paid to them. In the court's view, the consent in this case was obtained when the appellants voluntarily without any coercion or undue influence re-applied for the vacant posts of director of water resources & environment and director of finance/ corporate secretary respectively. 18. Regarding the issue of discrimination against the appellants on t • JlO the basis of their nationality, the lower court found that the perceived discrimination may partly be blamed on the impotence of the Zambian Board Members as they effectively failed to contribute and safeguard the interests of their nationals despite that there was equal representation on the board between Zambia and Zimbabwe since three members were appointed by each government. The court opined that the frequent changes of Zambian board members may have brought in a lot of inconsistencies in policy applications, interpretation and even in decision making. This was so because the Zambian board members were continuously in learning mode. 19. The trial court also found that there was no breach of contract to warrant an award of damages in favour of the appellants . It reasoned that the contracts were entered into freely and voluntarily and there was no economic duress as implied by the appellants. In its view , the contracts expired at the agreed time and that the appellants could not have lost gross income of a non-existing contract. 20. It was found that the restructuring and re-organisation of the I Jll respondent inevitably brought about a change in the conditions of service. That this was a transformation from permanent and pensionable conditions to performance-based contracts for senior staff in grades 1 and 2. As such, the appellants either accepted the changes or can properly be said to have acquiesced to them. 21. The trial court further found that the daim for redundancy benefits failed as the appellants' posts were retained after the restructuring and re-organisation and the appellants were re appointed and absorbed in the same vacant posts on the same grade and level, having earlier been paid off fully. The complaint was accordingly dismissed. The grounds of appeal to this Court 22. It is against this decision that the appeUants have now appealed to this court on four grounds as fallows: 22.1 The learned [trial court] erred in law an d :fact when '[it] held on 12 t h January 2016 that the app e Uants w er,e not e ntitle d to damages for breach of contract on the bas is that the contracts of employment the appellants' e ntered i nto wit h the res pondent in March 2009 as v arie,d in De c e mber 20 11 .. J12 were entered into freely and voluntarily without any economic duress. 22.2 The learned [trial court] erred in law and fact when [it] held on 12th January 2016 that the contracts o,f employment the appellants entered into with the respondent in March 2009 as varied in December 2011 were not a unilateral variation of the contracts of employment the respondents entered into with the appellants in 2004. 22.3 The learned [trial court]g erred in law and fact when [it] held on 12th January 2016 that the appellants were not entitled to any redundancy benefits because the appellants' posts were retained after the restructuring and re-organisation in the same vacant posts, on the same grade and level, having earlier been fully pa.id off. 22.4 The [trial court] erred in law and fact when [it] held on 12th January 2016 that the appellants were not discriminated against on account of their nationality. The arguments presented by the parties 23. Both parties filed heads of arguments which counsel for the respective parties augmented briefly at the hearing of the appeal. The learned counsel for the appellant argued grounds one, two and three together. He submitted that the second contracts of employment entered into between the appellants and the respondent in March 2009 were renewable contracts which were performance based and ought to have run for a J13 period of five years but instead ran for a period of slightly over two years and eight months. According to counsel, the reduction of t h e duration of the contracts by two years four months a mounted to a variation of a b asic condition. It was his contention that the appellants did not consent to the variation of the basic conditions of employment in the second contract of employment to those contained in the third contract of employment of December 2011 and that they dispute the trial court's findings of fact. Reliance was placed on the case of Shadrick Wamusula Simu:mba v Juma Banda and Another 1 . Our attention was then drawn to page J7 of the lower court's judgment where it was stated as follows: ''T:h,e Com·plaina,nts also during cross-examination stated that t hey signed the contracts with the Respondent with the hope that the areas of 1c10.ntentfo.n w ill be ironed out in the future." 24. Counsel argued that upon additional analysis of the record of proceedings, it is clear that the 2 nd appellant did state that he was forced to sign the contract b ecause if h e d id not, children would stop going to school. In the same vein, the 1st appellant testified that he had a family and signed the contract of employment because if he did not sign it, he would have lost his • job. He submitted that it was therefore clear that the appellants Jll4 were forced to sign the contract on account of their economic conditions and priority, particularly that they had family and school going children. In addition, they signed the contract with the view of resolving the issues in contention in the future. 25. It was also contended that the learned trial judge ought to have taken into account the I testimony of the appellants in determining whether or not they had signed the contracts of employment of 2009 and 2011 freely and voluntarily as their testimony showed economic duress. Thus, the said contracts were not entered into by the appellants freely and voluntarily. 26. We were then referred to the case of National Milling Company Lim ited. v Grace Siimat aa. and Otb.e.rs2 where it was held that: "If an employer varies in any adverse way a basic condition or basic condit fons of empl oyme nt, without the consent of the e m.pfoyee,, t hen t n e, contract of e m.piloyment terminates and the e m ,p:lloye.e is d!.eemed!. to h ave be en declare d redundant or early reth"ed as may be appropiria t e , as at the date of the v ariation and the be n efits are to be ca lculated on the salary applicabl e ." 27. It was thus argued that the appellants were declared redundant and are consequentially entitled to redundancy benefits. • 28. In arguing ground four, it was submitted that age and J15 nationality were considered in the unilateral variation of the appellants' contracts to five-year non-renewable contracts particularly on the basis that their contracts, which expired in April 2014, were not renewed whilst the contract for the Zimbabwean director was renewed for a further five years without justification. Counsel reiterated that the respondent's actions were in breach of its recruitment and selection policy which requires the respondent to be fair and consistent, be non discriminatory on the grounds of sex., race, age, religion or disability, conform to statutory regulations and agreed best practice and promote equity of employment between Zambia and Zimbabwe. 29. He argued that the learned trial judge did not dismiss the perceived discrimination against the appellants. Neither did he dismiss the contention that the perceived discrimination was partly attributed to the scenario of frequent changes of permanent secretaries at the Ministry of Energy and Water Resources and other board members. That the trial court noted, however, that the frequent changes of Zambian board members J16 may have brought in a lot of inconsistencies in policy application, interpretation and even in decision making as the Zambian board members were continuously in learning mode. It was counsel's contention that having not expressly disputed or disagreed with the testimony of the appellants, the court below ought to have made a finding to the effect that the result of such inconsistencies was discriminatory against the appellants in favour of their Zimbabwean counterparts. 30 . This, he submitted, was because the ultimate injury to the appellants was discrimination and the board had an obligation to be neutral irrespective of the competence or lack thereof, of Zambian board members as the board was one unit. Thus, even if the Zambian board members were absent during board deliberations, the Zimbabwean board members had an obliga tion to ensure that their decisions did not disadvantage Zambians in favour of Zimbabweans, or vice versa. It was a rgued the refore, that the appellants were discriminated aga inst on a ccount of their age and nationality. We were a ccordingly urged to allow the appeal. J17 31. At the hearing of the appeal, the appellants' counsel submitted that although duress was neither pleaded nor proved, there was mention that the variation was unilateral. He submitted that every unilateral variation of an employment contract results in redundancy and the National Milling Co. Limited2 case was relied upon in support of this argument. 32. In response to grounds one, two and three, State Counsel for the respondent submitted that there was no time limit as to the period within which the five-year non-renewable contract of December 2011 ought to have been executed or any indication that there was duress exerted on the appellants prior to execution of their contracts; and that there was nothing that would have prevented the appellants from asking the respondent's board as to the reasons for the non-renewal of the contracts or any other clarifications. 33 . He contended that considering the appellants' seniority at the respondent's company and their levels of education and their experience in matters of that nature, the appellants would not by any stretch of imagination have been coerced or forced into .. J18 s1gn1ng the contracts. What the respondent requested the appellants was to execute the contracts if they accepted the offer. Therefore, execution by the appellants meant that they accepted the offer voluntarily and willingly and the appellants failed to provide proof to the court below in what way they were forced to execute. 34. It was therefore submitted that at the time of filing the complaint in the court below, there was no justification to entitle the appellants to damages for breach of contract when there was no contract in place and that since the contracts in question expired by effluxion of time there was no unilateral variation of the contracts by the respondent. 3 5. According to State Counsel, the appellants failed to provide proof that there was economic duress in the execution of their contracts or that they were forced to do so. He argued that the alleged justification for execution of the contract by the appellants that they were desperate for school fees cannot amount to duress or exertion of force in executing the contracts as the appellants entered into the contracts with the respondent • J19 freely and voluntarily and that if that were so, evidence would have been provided by the appellants. 36. As to the appellants' argument that the court below ought to have taken into account the testimony of the appellants in determining whether or not the appellants had signed their contracts of employment of2009 and 2014 voluntarily and freely and that the testimony of the appellants showed economic duress with the result that the said contracts were not entered into freely and voluntarily, State Counsel referred us to the testimony of the 2 nd appellant at page 176 of the record, where he stated that: "The contract on DR 2B is my contract. l signed it... The contract shall not be renewed. It expired [on} 31st March 2014. Nobody threatened trouble if I did not sign it. I was a family man so I had to do a job to manage my family ..... We did not raise any questions in writing over the ,contract .. " 37. We were also referred to page 179 where the 2 nd appellant testified that: "I signed it freely because if I did not I was ,out o:f employment." 38. We were further referred to page 180 of the record where he • • J20 stated as follows: "I freely signed it. It expired on 31st March 2014. It ended and we were not declared redundant." 39. On the issue regarding the Zimbabwean director having had his contract renewed but theirs not renewed, it was contended that there was no discrimination against the appellants when their contracts were not renewed because of the fact that the respondenfs board on 2 nd December 2011 resolved that the appellants were to reach the retiring age of 60 years by March 2012 and that according to that resolution the non-renewal of the appellants' contracts on account of attainment of 60 years only related to them and not their Zimbabwean counterpart. However, upon reaching the 60 years retirement age the appellants' contracts were, after they appealed to the Board, extended from March 2012 for a further 2 years 8 months to make it five years thereby extending their contracts up to 31 st March 2014 and not renewable in line with the respondent's board resolution. 40. In response to ground four, it was submitted that the National Milling Co Limited2 case cited by the appellants is not relevant ' • J21 to the issues before the court in this appeal in that there is no evidence of the respondent varying in any adverse way a basic condition(s) of employment relating to them. Further, that there are no circumstances that fit in the category of redundancy to the effect that terms and conditions of employment were varied without the appellants' consent. Therefore, State Counsel argued, the appellants were not declared redundant as alleged. 41. According to counsel, it is the appellants' contracts which expired by effluxion of time as agreed between the parties under clauses 1.2 of both contracts and having not been declared redundant the appellants were therefore not entitled to redundancy benefits. That in fact, the 2 nd appellant testified in cross-examination that the appellants were not declared redundant. He argued that from a legal stand point an employee on a performance contract cannot be declared redundant as his terms and conditions would be as provided for in the applicable contracts and in the present case, it was termination by expiry and not redundancy. 42. It was State Counsel's contention that under section 36(1) of the '\ J22 Employment Act Chapter 268 of the Laws of Zambia (repealed), a written contract shall only be terminated on 3 conditions as follows: "(a) By expiry of the term for which it is expressed to be made; or (b) By the death of the employee before such expiry; or (c) In any other manner in which a contract of servke may be lawfully terminated or deemed. t ,o be terminated wbethe:r under the provis.ions of this Act or oth,erwise." 43. He submitted that the contracts executed by the appellants in this matter fall under section 36(l)(a) which were terminated by expiry of the performance contracts and not by way of redundancy. Thus, the question of redundancy benefits payable to the appellants does not arise. State Counsel accordingly urged us to dismiss the appeal with costs for lack of merit. 44. In his brief oral submissions, State Counsel reiterated that there was no unilateral variation of the appellants' employment contracts as the process was consensuaL Further, that the respondent used its discretion to extend the appellants' employment when they were about to reach 60 years of age. It was also State Counsel's argument that in terms of section 36 , • J23 of the Employment Act in force at the time, the appeUants' contracts of employment were terminated because the parties had agreed that the contracts would not be renewed. Consideration of the appeal and decision by t his ,co urt 45. We have considered the record of appeal, the judgment appealed against and the arguments of both parties. 46. We shall deal with grounds one , two and three together as they are interrelated. In sum, the appellants' grievance in these grounds is that the contracts of employment the respondent entered into with the appellants in March 2009 as varied in December 2011 constituted a unilateral variation of their conditions of service and, therefore, the trial court erred when it held that the appellants were not entitled to damages for breach of contract and redundancy benefits .. 47. The appellants contend that they did not consent to the variation of the basic conditions of service of the contract of April 2009 to those contained in the contract of 2011; the basic condition which was varied was the reduction of the duration of the contract by two years four months . • J24 48. We have examined the terms of the appellants' employment contracts of April 2009. Of particular relevance to the circumstances of this case is clause 1.2 which provided as follows: "No later than three (3) months before the end of the tour, the Employee shall inform the Authority in writing whether or not he wishes to be engaged for a further period of service PROVIDED that the Authority shall not be oblige.d to engage the employee. This contract may be renewed. after five years at the discretion of the Authority and depending on the following: - 1.2.1 The Performance of the Employee 1.2.2 The need to develop a successor 1.2.3 Due to special requests by the Board of Directors." [Emphasis added] 49. The term "tour" is defined in clause 1.1 as follows: " ... 'Tour' Means the period of two (2) years ten (10) months and twenty six (26) days from 1st April 2009." 50. It is not in dispute that in December 2011, prior to the expiry of the period of two years and ten months, the appellants' contracts were varied to five-year contracts effective from 1st April 2009. Clause 1.2 of this contract stated that: "Upon completion of a five-year term on 31st March 2014, the contract shall not be. renewed." t J25 51. The evidence on record indicates that the appellants' contracts were accompanied by a letter whose relevant portions are reproduced below as follows: "Reference is made to your contract of ,employment wit'h ,effect from 1 st April 2009 which is to expire on 26th March 2012,, and your subsequent application to have th,e ,contract ext,end,ed u·p to 31 st March 2014. At the 102nd ZAMBEZI RIVER AUTHORITY . Board, meeting beld on 2 nd December 2011 at the ZRA offices in Kariba., th,e Board resolved to renew your contract for a ·period of two (2) years, one (1) month and five (5) days from .27th . March 2012. The terms and conditions of service will be as prm1id1ed in the contract attached hereto. Please not,e that exe,cution of the contract will be performance based. Kindly ,execut,e the Employment Contract attached herewith if you acicept the offer." [Emphasis added] 52. A perusal of the appellants' respective contracts shows that the same were duly executed by the appellants .. By executing the contracts, the appellants were deemed to have accepted the terms of the said contracts which included the alleged reduction of the duration of the contract of December 2011 by two years four months. This effectively means that the appellants consented to the variation of the basic conditions of the contract • of April 2009 to those contained in the contract of December J26 2011. Having done so, the appellants cannot now claim to have been declared redundant as at the date of the variation so as to entitle them to redundancy benefits as envisaged in the National Milling Company Limited2 case (supra). 53. Moreover, the appellants' testimonies in the court below both confirmed that they entered into the contracts of December 2011 freely and voluntarily. The argument that the appellants signed the said contracts under economic duress is, in our view, unsubstantiated as they have not adduced any evidence to show that such duress existed at the time the contracts were signed. In any event, this issue was never pleaded by the appellants in their notice of complaint and is, therefore, a mere a fterthought. 54. Furthermore, given that the appellants consented to the variation of their contracts and the said contracts ran their full terms, we do not see how the claim for damages for breach of contract could arise. We say so because a valid contract has to be in existence in order for a breach of contract to arise . In the a J27 present case, the appellants raised an allegation of breach of contract by way of their notice of complaint after the contract in question had already terminated by effluxion of time. The claim for damages is, therefore, misconceived. 55. In the circumstances, the trial court cannot be faulted for finding as it did and we see no merit in the three grounds of appeal. 56. In ground four, the appellants allege error on the part of the trial court for holding that they were not discriminated against on account of their nationality. 57. The appellants contend that age and nationality were considered in the unilateral variation of their contracts to five year non-renewable contracts as their contracts which expired in April 2014 were not renewed whilst the Zimbabwean director's contract was renewed . 58. As indicated earlier in this judgment, the appellants consented to the variation of their contracts to five-year non-renewable contracts by executing the contracts. At the time they executed J28 the contracts, they were well aware that the contract of the Zimbabwean director would be extended as it had different terms and could be renewed while theirs was non-renewable. This is confirmed by the correspondence in the record of appeal which stated as follows: "Authority Paper No. 959/2013 ZAMBEZI RIVE. R AUTHORITY EXPIRY OF DIRECTORS' CONTRACTS This is to bring to the attention of the Bo,ard that the following Directors; Eng. D Z Mazvidva Director (Pro1ects and Dam Safety) Mr. J Kangwa Director Corporate Secretary/ Finance Eng. CFG Mukosa Director (Water Rights and Environmental Management) had their permanent and pensionable, contracts terminated on 31st March 2004 and placed on Performance Employment Contacts. The five year contracts expire on 31 st March 2014. At the 102nd Board Meeting held on 2 nd December 2011, the Board discussed the age of Directors Messrs J Kangwa and CFG Mukosa who were to clock 60 years of age by March 2012 and the Board RESOLVED the following: i) The concerned directors' contracts be extended to run for a period o,f five years from 1st April 2009 to 31st March 2014. ii) At the expiry of the five year term, contracts of Directors would not be renewed." I J ! J29 59. It is clear from the record that after this correspondence was written, the appellants were offered the varied contracts of December 2011. At this point, the appellants had the choice of either executing the said contracts or not. In this case, the appellants elected to go ahead and executed the contracts. They, therefore, cannot be heard to say that they were discriminated against on account of their nationality when their contracts were not renewed. In any case, the point should be made that according to clause 1.2 of the appellants' contracts of employment we have quoted under paragraph 46 of this judgment, the respondent was not obliged to engage appellants . It is obvious to us that the non-renewal of their contracts of employment was a term of the said contracts which they freely and voluntarily agreed to when they executed the contracts and they are bound to such agreement. We are fortified by the case of Colgate Palmolive (Z) Inc. v Abel Shemu Chika and Others3 where this court stated as follows regarding the sanctity of the terms of a contract: "If there is one thing more than anotber which public :policy requires it is that men of full age and co,mp,etent und,erstanding l shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shaU be sacred and shall be enforced by courts of justice." 60. On that score, we also find no merit in this ground of appeal. Conclusion 61. For the reasons stated above, we conclude that this appeal is bereft of merit and it is accordingly dismissed. We however make no order for costs, given the circumstances of this case. ' I. C. MAMBILIMA CHIEF JUSTICE ~ SUPREME COURT JUDGE C. KAJl-MANGA SUPREME COURT JUDGE