Ian Smart v Innscor Distributors (Zambia) Ltd (Appeal 97 of 2016) [2019] ZMSC 289 (7 June 2019)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Appeal No.97/2016 BETWEEN: IAN SWART AND APPELLANT INNSCOR DISTRIBUTORS (ZAMBIA) LIMITED RESPONDENT CORAM: Musonda A/DC J, Kaoma and Kajimanga JJS On 4th June 2019 and 11th June 2019 For the Appellant: Mr. W. Mwenya of Messrs Lukona Chambers For the Respondent: No Appearance JUDGMENT Kajimanga, JS delivered the judgment of the court. Cases referred to: 1. Attorney General v Thixton (1967) Z. R. 10 2. Indo Zambia Bank Limited v Mushaukwa Muhanga (2009) Z. R. 266 3. Lt. General Wilford Joseph Funjika v Attorney General (2005) Z. R. 97 4. Samuel Miyanda v Raymond Handahu (1993-1994) Z. R. 187 5. Nkhata and 4 Others v Attorney General (1966) Z. R. 124 6. Attorney General v Marcus Kampumba Achiume (1983) Z. R. 1 7. Augustine Kapembwa v Danny Maimbolwa and Another (1981) Z. R. 127 8. Barclays Bank Zambia Pic v Lennox Nyangu and Others - Appeal No. 109/2012 9. Boc Gases Pic v Phesto Musonda (2005) Z. R. 119 10. Attorney General v E. B. Jones Machinist Limited (2000) Z. R. 114 I J2 11. Arthur Nelson Ndhlovu and Another v Al Shams Buildings Materials Company Limited and Another (2002) Z. R. 48 12. Krige and Another v Christian Council of Zambia (1975) Z. R. 152 13. Lusaka City Council v Adrian S. Mumba (1977) Z. R. 313 14. Godfrey Miyanda v Attorney General No. 1 (1985) Z. R. 185 15. Hamilton Gell v White [1922] 2 K. B. 422 16. Kenny Sililo v Mend-A-Bath Zambia Limited and Spencon Zambia Limited - Appeal No. 168/2014 Legislation and other works referred to: 1. Minimum Wages and Conditions of Employment Act Chapter 276 of the Laws of Zambia 2. Minimum Wages and Conditions of Employment (General) Order, Statutory Instrument No. 119 of 1997 3. Minimum Wages and Conditions of Employment (General) Order, Statutory Instrument No. 2 of 2002 4. Minimum Wages and Conditions of Employment (General) Order, Statutory Instrument No. 57 of 2006 5. Minimum Wages and Conditions of Employment (General) Order, Statutory Instrument No. 2 of 2011 6. Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia 7. Employment Act Chapter 268 of the Laws of Zambia 8. Bryan A. Garner (2004). Black’s Law Dictionary, 8th Edition. St. Paul: West Group Introduction 1. This is an appeal against the decision of the Industrial Relations Court (IRC) dated 27th January 2016 which dismissed the appellant’s claims against the respondent. 2. The appeal discusses, in the main, the conditions to be satisfied by an employee for the acquisition of accrued rights to conditions J3 of service contained in legislation which has been repealed. Background to the appeal 3. The brief facts giving rise to this appeal are that the appellant was employed as information systems, quality and training manager in the respondent company on a three-year contract with effect from 1st March 2000. Clause 9 of the contract provided that in the event that the appellant remained in employment beyond the term of three years, the said contract would be deemed to apply to such continued employment. The contract further provided under clause 10 that it would be construed and carried out according to the laws of Zambia. 4. After serving the respondent for 15 years, the appellant wrote to the respondent expressing his intention to proceed on retirement on 28th February 2015, having already attained the then statutory retirement age of 55 years. In his letter, the appellant claimed that he was entitled to the payment of KI,505,017.44 as retirement benefits and US$73,040.00 in unpaid housing allowances. Additionally, he demanded that the respondent makes arrangements for his repatriation back to South Africa upon his J4 retirement. 5. On 16th January 2015, the respondent wrote to the appellant confirming that his employment with it would terminate by reason of retirement on 28th February 2015 and advised him that he would be placed on garden leave from the end of January 2015, although he would continue to receive his full salary and all contractual benefits during the period of his leave. The appellant was further informed that from the respondent’s records, he had twenty unused leave days for which he would receive payment in lieu as part of his final payment of salary. The respondent did not, however, commit itself to confirm the appellant’s claims nor express any willingness to settle the same. Consequently, the appellant sought the intervention of the labour office and later instituted proceedings against the respondent in the IRC when his efforts at resolving the matter amicably proved futile. Pleadings in the IRC 6. By a notice of complaint dated 20th February 2015, the appellant sought the following relief against the respondent: 6.1 Payment of KI,505,017.44 as retirement benefits due and i J5 payable to the appellant having retired from the respondent company after 15 years of continuous service in employment. 6.2 Payment of US$73,040.00 as unpaid rent allowance for the period the appellant worked for the respondent. 6.3 An order of the court compelling the respondent to repatriate the appellant back to South Africa following his retirement. 6.4 An order compelling the respondent to pay the appellant monthly salaries until the retirement benefits are paid in full. 6.5 Interest on all amounts found due and owing. 6.6 Costs. 7. The basis of the appellant’s claim was that the retirement benefits of KI,505,017.44 arose from the provisions under the Zambian law regarding retirement; and the sum of US$73,040.00 arose from the fact that whilst in employment, the appellant’s fellow line managers were receiving the allowances for the period of March 2000 to September 2012 when he was denied the same without being given any reason and only started receiving the allowance in October 2012. Further, that the amount of rent paid for the period of October 2012 to January 2015 was below the minimum statutory amount. According to the appellant, the underpayment of rent for this period was K193.50 or the equivalent of $30.00 per month. As for the issue of repatriation, the appellant stated that J6 he needed to relocate to South Africa immediately to enable him to receive medical attention. 8. The respondent disputed the appellant’s claims and contended that during the course of his employment with the respondent, the appellant’s terms of engagement were continuously reviewed and in 2012, housing allowance was introduced as a benefit to the appellant. That only the executive management team of the respondent received housing allowance as a term of their employment prior to 2010, and managers who now receive housing allowance receive it as a negotiated term of their employment. It therefore denied that there was any underpayment of the housing allowance paid to the appellant by the respondent. 9. The respondent also denied that the appellant was entitled to the retirement benefits sought as there had never been an agreement in place between the appellant and the respondent in terms of which the appellant was to be entitled to terminal benefits equal to three months’ pay for each year served. The respondent asserted that whilst employed by it, the appellant had always been a part of the respondent’s management team and was never a member of any trade union. It was also contended that at the time the appellant was engaged by the respondent, he was not moved from a place within Zambia for purposes of employment to entitle him to repatriation. However, the respondent did offer to and had in fact paid for the appellant and his household effects to be repatriated to South Africa. Evidence of the parties in the IRC 10. In his oral evidence, the appellant confirmed that he received repatriation pay when he left employment. He stated, however, that he was not paid his terminal benefits nor the rentals due to him amounting to US$800.00. He testified that he was a co­ signatory to the company cheques and saw that his colleagues were paid rentals. He, however, admitted that the cheques for rentals were for the Finance Manager who held a more senior position than him. It was his further evidence that he was later given 30% of his salary as rent, which he did not receive during the first twelve years. 11. Vincent Richard Hoggs, the regional director of the respondent, testified on behalf of respondent. His evidence revealed that there . ' J8 was no pension scheme in the respondent company and that the appellant was not a member of NAPSA as he was above the age of 55 years. Consideration of the matter by the IRC 12. After considering the evidence and arguments of the parties, the IRC found that the appellant’s contract of employment did not contain any provision for the mode of payment of retirement benefits and therefore, the appellant’s claim that he was entitled to such benefits based on three months’ salary for each year served was without basis. The court reasoned that the right to retirement benefits under the Minimum Wages and Conditions of Employment (General) Order 1997, Statutory Instrument No. 119 of 1997 was a right to be taken advantage of and not an accrued right that vested to the appellant immediately upon employment, as there were other further incidents which were required to acquire the right to such benefits. It relied on the case of Attorney General v Thixton1 where we guided that only fundamental rights, and not all statutory rights accrue automatically. The court opined that the rights in the present case fell far below the statutory rights recognized in the Thixton1 case as being J9 fundamental and could not be said to have automatically accrued. It concluded that there had been no incident or event adduced in evidence that occurred prior to the introduction of Statutory Instrument No. 1 19 of 1977 that had the effect of vesting the entitlement to the retirement benefits sought as an accrued right. 13. On the claim for housing allowance, the trial court found that in his evidence, the appellant confirmed that the only employees of the respondent who received housing allowance prior to 2012 when he began to receive it were members of the respondent’s executive team, none of whom were his fellow line managers. With regard to the claim for repatriation, the trial court found that the respondent had in fact repatriated the appellant to South Africa. The trial court accordingly dismissed the appellant’s claims for lack of merit. The grounds of appeal to this Court 14. Unhappy with this decision, the appellant has appealed to this court advancing five grounds as follows: 14.1 The court below erred in law and fact by stating that the appellant was employed by the respondent from 1st March 2000 to 31st March 2003, then other [three-year] contracts I I J10 up to 25t h February 2015 contrary to paragraph 9 of his letter of appointment dated 1st March 2000. 14.2 The court below erred in law and fact by [failing] to correctly interpret clause 10 of the letter of appointment dated 1st March 2000 which incorporated the Employment Laws of Zambia into the contract of employment. 14.3 The court below erred in law and fact by holding that the retirement benefits as set out under the Minimum Wages and Conditions of Employment (General) Order 1997, Statutory Instrument No. 119 of 1997 did not vest to the appellant at the time the employment relationship was entered into [and failing] to recognise that a statute cannot be ousted from contracts. 14.4 The court below erred in law and fact by holding that there was no [incident] or event that caused the right or entitlement to 3 months pay for each year served to vest in the appellant [and] by [failing] to recognise that the right became vested in the appellant when he attained the age of 55 years. 14.5 The court below erred in law and fact when it disregarded evidence of the appellant that he was the only one not paid housing allowance when other managers were receiving the same. Arguments presented by the parties in the appeal 15. In arguing ground one, counsel for the appellant stated that the court below gave a wrong interpretation to the duration of the contract of employment between the appellant and the respondent. He referred us to clause 1 of the letter of contract of Jll employment at page 79 of the record of appeal which stated that: “The Employed shall enter into the service of the Firm as an Information Systems, Quality and Training Manager for the period 12th June 2000 to 31st March 2003...” 16. We were also referred to clause 9 of the said contract which stated as follows: “If the Employed continues in the employ of the Firm beyond the said term of three years then unless otherwise expressly agreed, this Agreement shall (mutatis mutandis) be deemed to apply to such continued employment and in that case either [party] hereto may at any time after the expiry of the said term determine the Agreement by giving to the other not less than one calendar month’s notice in writing.” 17. It was argued that the appellant’s interpretation and understanding of this clause is that after the initial period of the contract had been served, the parties by operation of clause 9 of the first contract entered into another contract which started from 1st April 2003 and came to an end on 28th February 2015. This, counsel submitted, was confirmed by the phrases “...to apply to such continued employment” and “said term” contained in the said clause. According to him, the words “said term” refer to one period as opposed to “said terms” which refer to at least two terms. Thus, > ‘ J12 the lower court’s interpretation of clause 9 is an import of words that are not contained in the clause. 18. He contended that it is a cardinal principle of interpretation that words must be understood in their natural meaning as a first rule and that where ambiguity exists other rules of interpretation may then be resorted to. The cases of Indo Zambia Bank v Mushaukwa Muhanga,2 Lt General Wilford Joseph Funjika v Attorney General3 and Samuel Miyanda v Raymond Handahu4 were cited in support. 19. That it is also trite law that courts may depart from fundamental rules of interpretation when the words used lead to some absurdity, or some repugnance, or inconsistency with the rest of the instrument or document. Counsel argued that in the present case, there is no absurdity, repugnance or inconsistency created with the rest of the appellant’s terms and conditions of service as contained in the letter of contract of employment. He, therefore, submitted that it was an error in fact and law for the court below to have interpreted clause 9 as it did. Relying on the cases of Nkhata and 4 Others v Attorney General,5 Attorney General v I J13 Marcus Kampumba Achiume6 and Augustine Kapembwa v Danny Maimbolwa and Another,7 we were urged to set aside the finding of fact made by the court below in respect of this ground. 20. In support of ground two, counsel submitted that the interpretation of clause 10 of the letter of contract of employment by the court below led to the exclusion of the Minimum Wages and Conditions of Employment Act Chapter 276 of the Laws of Zambia from the contract. As such, the court below gave a narrow view to what was intended in clause 10 by the parties and that it failed to see the import of the testimony of RW1 on the applicability of the Zambian employment law to the contract of employment. He referred us to clause 10 of the contract which provided that: “This Agreement shall be construed and carried out according to the Laws of Zambia.” 21. It was his contention that clause 10 invariably invokes the principle of ensuring that the minimum standards set by the employment law in Zambia shall be part and parcel of the contract. That as at the time of signing the first and second contracts this law was contained in Statutory Instrument No. 119 r J14 of 1997 as promulgated under the Minimum Wages and Conditions of Employment Act Chapter 276 of the Laws of Zambia. Therefore, counsel contended, the court below erred in * law when it refused to apply the provisions of Statutory Instrument No. 119 of 1997 and failing to order that the appellant was entitled to payment of retirement benefits as provided under the said Statutory Instrument. 22. Counsel argued that where the legislature has set the minimum standards in the law, courts are duty bound to ensure that those minimum standards are complied with. He pointed out that although the parties did enter into a written contract of employment with the terms as contained in the letter of contract of employment, by inclusion of clause 10 in the said contract, the parties also agreed that the employment laws of Zambia were to apply to the contract which was also to be construed in accordance with the same law. On the issue of setting minimum law standards, he cited the case of Barclays Bank Zambia Pic v Lennox Nyangu and Others 8 23. It was his submission that in construing and carrying out the J15 agreement in accordance with the Laws of Zambia, the applicable law among others which by operation of the law became part of the contract is Statutory Instrument No. 119 of 1997. He added that at the time this Statutory Instrument was promulgated, the minimum wages and conditions of employment in the country should not have been less than those provided for in the Statutory Instrument. This meant that if a written contract of employment did not provide for payment of retirement benefits, the provision under the Statutory Instrument applied unless parties expressly made other provision for payment of terminal benefits. Our attention was drawn to the preamble of the Minimum Wages and Conditions of Employment Act which states that: “An Act to repeal and replace the Minimum Wages, Wages Councils and Conditions of Employment Act; to make provision for regulating minimum wage levels and minimum conditions of employment; and to provide for matters connected with or incidental to the foregoing.” 24. Counsel argued that if this court would be of the view that there is doubtful import of the words in clause 10, the contract must be construed against the respondent which drafted the contract. In J16 support of this argument he again referred us to the Indo-Zambia Bank2 case (supra). According to counsel, in refusing to read paragraph 8 of Statutory Instrument No. 119 of 1997 into clause 10 of the contract, the court below relied on the doctrine of extrinsic evidence as not applying to the written contract which was an error in law as a statute cannot be said to fall under extrinsic evidence. That the reason for this is that it forms part of the law that regulates contracts generally. We were referred to the learned authors of Black’s Law Dictionary, 8th Edition for the definition of extrinsic evidence. Reliance was also placed on the case of Boc Gases Pic v Phesto Musonda9. 25. In support of ground three, counsel submitted that the position taken by the court below to exclude paragraph 8 of Statutory Instrument No. 119 of 1997 as an implied term in the contract of employment amounts to ousting a statute from the contract. The implication of this is that at the time when the parties entered into the contract of employment, the contract itself excluded the Laws of Zambia from its performance. This, he contended, is against the weight of clause 10 of the letter of contract of employment dated 1st March 2000. That by inclusion of clause 10 I k J17 in the contract of employment, the parties incorporated the laws of Zambia on employment and the respondent is barred by the doctrine of estoppel from denying that the appellant was entitled to payment of retirement benefits as provided in the Statutory Instrument. Counsel submitted that the court below overlooked this and the general principle of estoppel which is intended to prevent injustice owing to inconsistency. He relied on the cases of Attorney General v E. B. Jones Machinist Limited10 and Arthur Nelson Ndhlovu and Another v Al Shams Buildings Materials Company Limited and Another11 in support of this argument. 26. It was counsel’s argument that all employment contracts in Zambia are subject to the minimum standards set in the Minimum Wages and Conditions of Employment Act under which Statutory Instrument No. 119 of 1997 was promulgated. Therefore, counsel contended, any contract which provides for conditions less than those set under that Act is in breach of the law as it tends to oust a statute. He called in aid the case of Krige and Another v Christian Council of Zambia12 where it was held I that: J18 “As to estoppel, the matter in my view concluded against the plaintiff by the principle that one cannot set up an estoppel against a statute and entertain no doubt that the same rule applies whether the basis upon which a party is alleged to be precluded from relying on the particular state of affairs is estoppel properly so called or some analogous principle or “quasi-estoppel”. 27. In arguing ground four, counsel submitted that the court below fell into error when it stated at page J14 of the judgment as follows: “In casu, there has been no incident or event adduced in evidence that occurred prior to the introduction of the Minimum Wages and Conditions of Employment (General) Order 2011, Statutory Instrument No. 2 of 2011 that had the effect of vesting the entitlement to the retirement benefits sought to consider as accrued.” 28. It was his contention, however, that this issue relates to the law and the court below should have inquired into the changes of the law from 2000 to 2011 to arrive at a fair conclusion. He pointed out that Statutoiy Instrument No. 2 of 2011 and Statutory Instrument No. 119 of 1997 show that there was a fundamental change in the categories of employees protected under the law; whereas in 2000 the appellant was a protected employee, in 2011 i t J19 that protection was removed under Statutory Instrument No. 57 of 2006 which states as follows at paragraph 2: “(1) This Order shall apply to protected employees as specified in the Schedule to this Order but shall not apply to employees- (a) of the Government of the Republic of Zambia; (b) of a District, Municipal and City Council; (c) engaged in domestic service; (d) in any occupation where wages and conditions of employment are regulated through the process of collective bargaining conducted under the Industrial and Labour Relations Act; or where employee/employer relationships are governed by specific employment contract which shall be attested by a proper officer; and (e) in management positions as defined below in paragraph 3 (2) For the avoidance of doubt, the provisions of this order shall not be used as a basis for any negotiations in contracts of employment for any employees exempt under subsection (1).” 29. According to counsel, this fundamental change had the effect of vesting the entitlement to retirement benefits as an accrued right. That it is trite law that where an Act of Parliament or any subsidiary legislation provides for payment of retirement benefits, the only thing required for one to be entitled to the benefit is by meeting the requirement as set out in the law; a retiree does not need to do anything at the time of entering into a contract of employment to entitle him or her to payment of benefits as stated . . J20 in the judgment of the court below. He argued that having attained the age of 55 years and worked for a minimum of 10 years’ service with the respondent company the appellant had met the requirements to be entitled to payment of retirement benefits. He referred us to paragraph 8 of Statutory Instrument No. 119 of 1997 which provides that: “An employee who has served with an employer for not less than ten years and has attained the age of fifty-five, shall be entitled to three months basic pay for each completed year of service: Provided that where an employer has established a pension scheme approved by the Minister, the retirement benefits shall be paid in accordance with such pension scheme, and this paragraph shall not apply.” 30. Our attention was also drawn to page 138 of the record of appeal where RW1 stated as follows: “There was no pension scheme in our company. He was not even a member of NAPSA.” 31. Counsel submitted that the appellant qualified for payment of retirement benefits under paragraph 2 of Statutory Instrument No. 119 of 1997 which provided that: “This Order shall apply to all employees except employees- (a) of the government of the Republic of Zambia; J21 (b) engaged in domestic service; (c) of District Councils; or (d) in occupations where wages and conditions of employment are regulated through the process of collective bargaining under the Industrial and Labour Relations Act. Cap. 269.” 32. He contended that the appellant did not fall under the exceptions stated in the above paragraph. Further, that by relying on the Thixton1 case, the court below misdirected itself as the issue of the accrued right for payment of retirement benefits was premised on the amendments or repeal of Statutory Instrument No. 119 of 1997 which came into being after 2003. These include Statutory Instruments No. 2 of 2002, No. 57 of 2006, No. 2 of 2011 and No. 46 of 2012. That since Statutory Instrument No. 119 of 1997 provided under paragraph 8 for payment of retirement benefits, any repeal or amendment of the law with respect to retirement benefits had no effect on the appellant’s entitlement by virtue of section 14(3)(c) of the Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia. 33. Therefore, counsel argued, the court below erred in law by applying the case wrongly on the accrued right outside the repeal or amendment of Statutory Instrument No. 119 of 1997. He J22 emphasized that the issue in the Thixton1 case is on protection of rights already accrued or acquired prior to repeal or amendment of an Act of Parliament that takes away that right. In f other words, it is on preservation of rights already accrued or acquired unless specifically abrogated in the amended statute. 34. We were referred to page J12 of the judgment where the lower court stated that: “In the case of Attorney General v Thixton the Court guided that only fundamental rights, and not all statutory rights accrue automatically. The rights in this case fall far below the statutory rights recognized by the Supreme Court as being fundamental and cannot be said to have automatically accrued.” 35. Counsel submitted that the right to payment of retirement benefits as enshrined in Statutory Instrument No. 119 of 1997 does not fall far below the statutory rights and that the court below read into the judgment more than was simply stated, as the right to payment of pension or retirement benefits is recognized as a fundamental right for an employee who qualifies to receive it. He added that following the repeal of Statutory Instrument No. 119 of 1997 the new statutory instruments that were promulgated after 2003 did not abrogate or oust the right to payment of J23 retirement benefits; that the amended or repealed paragraphs only affected those that were employed after the promulgation of Statutory Instrument No. 57 of 2006. 36. At the hearing of this appeal, Mr. Mwenya briefly augmented the appellant’s heads of argument relating to grounds two, three and four by submitting that the appellant qualified for entitlement to accrued rights under the repealed Statutory Instrument No. 119 of 1997 because clause 10 of the appellant’s employment contract encompasses the employment laws of Zambia. In this respect, counsel referred us to our decision in the case of Kenny Sililo v Mend-A-Bath Zambia Limited and Spencon Zambia Limited16. In particular, he referred us to a passage at page J16 of the judgment where we said that: “In our view, the passage of Statutory Instrument No. 46 of 2012 cannot be used to justify interference in contractual terms the effect of which interference is a diminution in the emoluments receivable by the employee. As we understand it, the law on minimum wages and conditions of employment [is] intended to set the very basic minimum below which it will be unlawful to employ.” [Emphasis added by counsel] 37. Counsel reiterated that the fact that the appellant had worked for J24 ten years meant that he qualified to receive retirement benefits. 38. In support of ground five, counsel submitted in the appellant’s heads of argument that the evidence on record clearly shows that the appellant was not paid housing allowance in form of rent whilst his fellow managers were paid. That although there was an admission that the appellant was part of the respondent’s management team, no distinction was shown by the court below as to what constituted executive management team and management and reliance was placed on the Indo Zambia Bank2 case. He, therefore, contended that the conclusion arrived at by the court below on the issue of non-payment of housing allowance is not supported by evidence on the record. Decision of the Court 39. We have considered the record of appeal, the judgment appealed against as well as the appellant’s heads of argument and oral submissions. The respondent neither filed heads of argument nor attended the hearing. 40. Ground one attacks the trial court’s finding relating to the , • . J25 duration of the appellant’s contract of employment with the respondent. The appellant contends that after the expiry of the appellant’s three-year contract, the parties by operation of clause 9 of the first contract entered into another contract which began on 1st April 2003 and came to an end on 28th February 2015. Therefore, the trial court erred by finding that that the appellant was employed by the respondent from 1st March 2000 to 31st March 2003 and then other three-year contracts up to 25th February 2015. 41. We have perused the record and, in our view, there is no evidence to suggest that the appellant and the respondent entered into any three-year contracts for the period of 1st April 2003 to 25th February 2015. The only contract we have seen is that for the period of 1st March 2000 to 31st March 2003. Clause 9 of that contract made it clear that in the event that the appellant remained in employment beyond the term of three years then the said contract would be deemed to apply to such continued employment. 42. On the facts before us, the appellant continued to work for the > ' ‘ J26 appellant after the lapse of the three-year contract. As such, the provisions of clause 9 of came into effect. That is to say, the terms of the initial three-year contract were deemed to apply to the appellant’s continued employment. We, therefore, agree with the appellant that the lower court wrongly interpreted clause 9 to mean that there were subsequent three-year contracts which the parties entered into. This finding, as we see it, was made upon a misapprehension of facts. In the case of Wilson Masauso Zulu v Avondale Housing Project Limited,3 we held that: “Before this court can reverse findings of fact made by a trial judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make.” 43. In view of the foregoing, we have not the slightest hesitation to reverse the finding of fact in question. Ground one, therefore, succeeds. 44. As grounds two, three and four are interrelated, they will be considered together. In sum, the appellant’s grievance under these grounds of appeal is that the court below should have . . J27 applied the provisions of the Minimum Wages (General) Order, Statutory Instrument No. 119 of 1997 to order that the appellant was entitled to payment of retirement benefits. 45. The contention by the appellant is that the said Statutory Instrument entitled him to retirement benefits calculated at three months per year served and that the same amounted to an accrued right which survived the repeal or amendment of the Statutory Instrument by virtue of section 14(3) (c) of the Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia. Section 14(3)(c) states as follows: “Where a written law repeals in whole or in part any other written law, the repeal shall not- (a) ... (b) ... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any written law so repealed; or.... ” 46. This court had the occasion of considering the effect of section 14(3) (c) in the case of Lusaka City Council v Adrian S. Mumba.13 In that case, we held as follows: “The issues to be considered therefore are whether section 14 (3) (c) and (e) of the Interpretation and General Provisions Act have the . . J28 effect of providing that, if a person has a right of appeal at the time of the repeal of the enabling statute, he continues to have such right despite the repeal, and, if so, whether in the circumstances of this case the appellant had a continuing right of appeal to the High Court from the inception of the appeal by the respondent to the Local Government Service Commission, or whether such right only accrued when an adverse judgment was given against him by the Local Government Service Commission. In dealing with the first issue the provisions of section 14 (3) (c) should not be construed as meaning that the rights of the public at large should be preserved; only the specific rights of individuals who have, before the repeal, satisfied any conditions necessary for their acquisition can survive. If the section were construed otherwise it would mean that the repeal would be totally ineffective. In the case of Hamilton Gell v White14 dealing with a provision identical to section 14 (3) (c), Atkin, LJ, said at page 431: “That provision was not intended to preserve the abstract rights conferred by the repealed Act ... it only applies to the specific rights given to an individual upon the happening of one or other of the events satisfied in the statute.” (Emphasis added) 47. Furthermore, in the case of Godfrey Miyanda v Attorney General,15 we held that: “Generally speaking, the law preserving rights acquired or accrued does not preserve abstract rights conferred by the repealed Act, but only applied to specific rights given on the happening of events specified in the statute - see Hamilton Gell v White (4); per Atkin, I I J29 L. J., at page 431. But in Lusaka City Council v Mumba (5) (a case concerned with an accrued right of appeal from a decision of the Local Government Service Commission under a law which had meanwhile been repealed), we said, in relation to section 14 (3) (c) of Cap.2, that, it does not preserve rights of the public at large; that only the specific rights of individuals who have, before the repeal, satisfied any conditions necessary for their acquisition can survive. We also said that the appeal of the Commission had set in motion the relevant train of events including the right of appeal to the High Court and that, at the time of the supervening repeal of the former Act, the appellant in that case had a contingent right to appeal if and when an adverse decision was made by the Commission. We rejected, in that case an argument that the right to appeal only accrued when the adverse decision was made.” [Emphasis added] 48. The critical question for our consideration is, therefore, whether the appellant had satisfied the conditions for the entitlement to retirement benefits set out in paragraph 8 of Statutory Instrument No. 119 of 1997. There is no doubt that having been employed in 2000 the appellant would have, but for the reasons we have given below, fallen within the category of employees who were protected under Statutory Instrument No. 119 of 1997 as well as Statutory Instrument No. 2 of 2002, both of which made provision for payment of retirement benefits to an employee who had served with an employer for not less than ten years and had attained the . •• i J30 age of fifty-five. Being an employee in a management position, however, the appellant ceased to be a protected employee when Statutory Instrument No. 57 of 2006 was promulgated as it excluded those in management positions. 49. From the authorities cited above, it is clear that section 14 (3) (c) of the Interpretation and General Provisions Act only preserves rights of individuals who have satisfied conditions necessary for their acquisition before the repeal. According to the evidence before us, the appellant was 63 years old at the time he left employment in 2015, meaning that he attained the age of fifty-five sometime in 2007. By this time, the appellant had not worked for the respondent for ten years. To be more specific he had worked for the respondent for only five years. He was therefore, outside the provisions of paragraph 8 of Statutory Instrument No. 57 of 2006 which was also contained in Statutory Instrument Nos 2 of 2002 and 119 of 1997. Furthermore, having continued in employment from 1st April 2003, that is^iscounting the first three years of his employment, the respondent only completed a minimum of ten years’ service at the company in 2010. The . •» . J31 appellant, therefore, did not satisfy the conditions necessary for the acquisition of the right to retirement benefits prior to the enactment of Statutory Instrument No. 57 of 2006, by which time he ceased to be a protected employee in so far as the application of minimum wages and conditions of employment were concerned. In the circumstances, we are persuaded by authorities we have cited in paragraphs 46 and 47 above to hold that no right accrued to the appellant within the meaning of section 14(3)(c) of the Interpretation and General Provisions Act. 50. It was also spiritedly submitted by Mr. Mwenya that the import of clause 10 of the appellant's employment contract was that it incorporated the Zambian labour laws. We do not think so. Such an import would have been as contemplated by the appellant only if the clause expressly stated the specific labour law(s). As we understand it, by the agreement being ‘construed and carried out according to the Laws of Zambia’ as envisaged by clause 10, simply meant that being an employment contract, the agreement was to be governed by the law of contract as it applies in Zambia. The clause was definitely never intended to capture or incorporate every piece of legislation regulating wages. As we stated in , ♦ J32 paragraph 48 above, the appellant would still have fallen within the category of eligible employees if it were not for the fact that he had not served the respondent for ten years and attained the age of fifty-five at the time even without clause 10 of his employment contract. 51. We also hasten to state that the Kenny Sililo16 case relied on by the appellant has no relevance to this appeal as the two cases are distinguishable. The facts of that case were that the appellant worked as an Accountant in the first and second respondent company. In the written contract of employment which he entered into with the first respondent, his salary and other entitlements were set out. In the course of his employment, the appellant noticed that his salary was in fact below the salary prescribed under the minimum wages and conditions of employment law for the kind of position he held with the first respondent. The appellant was accordingly directed by the respondent’s director, to prepare new salaries and wages based on the new Statutory Instrument No. 46 of 2012 on the minimum wages and conditions of employment. He did as directed. The director was, however, ' » 4 J33 not happy with the numbers which had resulted from the appellant’s computation and decided to do the exercise himself. As expected, the figures prepared by the director reflected reduced salaries as he used an hourly rate rather than a monthly rate to compute them. The appellant was offered a salary as computed by the director. He, however, declined to take it considering the reduction in his wages as a unilateral alteration of his conditions of service to his detriment. It was then that the appellant was requested to either accept the lower pay as computed by the director or be dismissed. 52. The facts also reveal that when it became apparent that the appellant would not give in and take the salary based on the computation prepared by the director, he was paid a salary in accordance with his own computation, but was thereupon dismissed verbally and advised to collect his dismissal letter together with terminal dues later. The appellant thereafter proceeded to lodge his complaint in the IRC claiming the following: (a) Damages for breach of contract; (b) Payment of gratuity due; (c) Payment of leave days; I J34 (d) A fair value of service rendered for two years; and (e) Costs and interest. 53. Before the passage from page JI6 of the judgment we quoted at Paragraph 36 above, we stated as follows on pages JI5 - JI6: “In the present case, there is no dispute that the respondents sought to introduce a new method of computation of the appellant’s emoluments. Our perusal of Statutory Instrument Nos. 46 and 47 of 2012 reveals that those Statutory Instruments clearly allow computation of wages for different categories either at an hourly rate, or directs the payments of a prescribed sum to different categories. By the new method of computation adopted by the respondents, the appellant’s emoluments were to be calculated on the basis of an hourly rate and the actual hours worked rather than a global or ball pack figure as stipulated in the contract of employment. The resultant net salary of the appellant was demonstrably less than that stipulated in the contract. The appellant did not agree to such new terms. His conditions were, therefore, to be altered by reason of the new computation method to his detriment without the respondents securing his agreement.” 54. Without doubt, it is clear to us from the above narrative that the Kenny Sililo16 case and the present case can easily be distinguished as they deal with different issues. 55. For these reasons, grounds two, three and four cannot be J J35 sustained and are dismissed for lack of merit. 56. In ground five, the appellant accuses the court below of disregarding the evidence of the appellant that he was the only one not paid housing allowance when other managers were receiving it. 57. The evidence which the appellant contends was disregarded by the court below appears at page 136 of the record of appeal as follows: “I later became a signatory to the Account and I signed chequefs] for my fellow managers.” 58. And further at page 137 where the appellant testified that: “The cheque[s] were for the Financial Manager and another. They were my supervisors.” 59. In determining the claim for housing allowance, the trial court stated at page J14 of its judgment that: “It is on record that during cross-examination, the Complainant confirmed that the only employees of the Respondent who received housing allowance prior to 2012 when he began to receive it were members of the Respondent’s Executive team none of whom were t .. . J36 his fellow line managers as alleged in the claim. The Complainant failed to prove his claim.” 60. In our view, the court below cannot be faulted for arriving at the decision that it did as regards the housing allowance. We say so because although the appellant claimed that he signed cheques for his fellow managers who were receiving the housing allowance during the period it was not paid to him, it was his testimony that those cheques were in fact for his supervisors. He did not lead any evidence to show that the managers who were at the same level as him were receiving it during the period it was not paid to him. The evidence he adduced actually points to the fact that his fellow managers were also not paid any housing allowance before 2012. This is confirmed at page 137 of the record of appeal, where the appellant states as follows: “In 2012, when the Accounts [manager] wanted to resign, I was given rent as well as herself. Before that I did not receive any rent nor did she. She was [at] the same level as myself.” * 61. As we see it, the onus to prove that his fellow managers were receiving the housing allowance before 2012 was on the appellant and that onus has not been discharged. Consequently, there is . , J37 nothing before us to show that the appellant was entitled to housing allowance for the period that he did not receive it. In the view we take, the trial court was on firm ground in declining to award the appellant the claim for underpayments on the housing allowance. 62. In the final analysis, we hold that although we found merit in ground one the same is inconsequential on account of the position that we have taken in the other grounds of appeal. The net result is that the appeal is unsuccessful and it is accordingly dismissed. Costs shall follow the event and will be taxed in default of agreement. M. MUSONDA A/ DEPUTY CHIEF JUSTICE R. M. C. KAO MA SUPREME COURT JUDGE C. KA JI MANGA SUPREME COURT JUDGE