Ng'andu Consulting Limited v Nancy Namutenda (Appeal No. 140 of 2022) [2024] ZMCA 157 (26 June 2024)

.! IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE ( Civil Jurisdiction) Appeal No. 140 of 2022 BETWEEN: NG' ANDU CONSUL TING LIMI AND NANCY NAMUTENDA CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 21 May 2024 and 26 June 2024 For the Appellant: Mr. Si tali of Messrs KP Martin Legal Practitioners. For the Respondent: Mr. A . Chileshe of Messrs Kasama Chambers JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court Legislation referred to: 1. The Employment Act, Chapter 268 of the Laws of Zambia (repealed) 2. The Court of Appeal Rules, Statuto,y Instrument No. 65 of 2016 Cases referred to: 1. Marcus Kampumba Achiume v The Attorney General (1983) ZR. I 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR. J 72 3. Sam Amon Mumba v Zambia Fisheries and another (1980) ZR. I 35 4. 5. National Drug Company Limited and Zambia Privatization Agency v Ma,y Katongo Inda-Zambia Bank Limited v Muhanga (2009) ZR. 266 Appeal No. 79 o/2001 6. Trollop and Coils Limited v Northwest Metropolitan Regional Hospital Board (1 9 73) 2 All ER 260 7. Buchman v The Attorney General, SCZ Judgment 14 of 1994 8. Mususu Kalenga Building Limited and Another v Richmans 's Money Lenders Enterprises (1999) ZR 27 9. Freeman v Cooke (1848) 2 Exch. 654 JO. Holmes Limited v Bui/dwell Construction Company Limited (1973) ZR. 77 JI 1. INTRODUCTION 1.1 This appeal originates from a judgment delivered by Justice Bah Matandala of the Lusaka High Court on 30 March 2022. The dispute giving rise to the appeal arising from an employment contract between the respondent and the appellant (plaintiff and defendant in the lower Court respectively). 1.2 In the judgment, the trial Judge found the appellant liable to pay a total sum of K405 , 165.55 to the respondent, representing the balance owing to the respondent in respect of salary arrears, leave days, and pension benefits. 2. BACKGROUND OF THE MATTER 2.1 The pertinent background of this case, as deciphered from the pleadings in the High Court, is that the respondent (plaintiff in the lower Court) served as Administration Manager of the appellant company, from 1 January 2010 until 31 July 2017, when the respondent (defendant in the lower Court) resigned from employment. 2.2 After the respondent's separation from the appellant's employ, unpaid terminal benefits, outstanding salary arrears, unused leave days, and pension entitlements accrued to her from the appellant. 2.3 Pursuant to Clause 14 of the conditions of service under which the respondent served, terminal benefits amounting to K505, 163 .5 were calculated and agreed to be paid to her by the appellant, out of which the appellant paid Kl 00,000 on 24 December 2018. J2 ) 2.4 It was further alleged that the appellant did not pay the respondent's monthly salary and in accordance w ith the requirements of non-payment of benefits of an employer, salaries accumulated to K 192,820 thereby bringing the amount owing by the appellant to the respondent to K597,983.55. 2.5 Following the appellant's failure to settle the purported dues, the respondent initiated an action before the Lusaka High Court by writ of summons and statement of claim (shown on page 32 to 35 of the record of appeal), on 4 April 2019, seeking the following reliefs against the appellant: z. Payment of K59 7,983.55 by the defendant to the plaintiff being outstanding terminal benefits. Interest on the amount to be found due; and Costs. ll. zu. 2.6 In its defence and counterclaim filed on 28 May 2019, shown on page 36- 37 of the record of appeal, the appellant denied the allegation that it owed the respondent the sum claimed and contended that the calculation of K505,163.55, was inaccurate. 2.7 Furthermore, the appellant asserted that it had disbursed K 100,000 towards the respondent's salary arrears and pension benefits, and had also transferred a motor vehicle, bearing vehicle registration number ABZ 8405, valued at K287,000 to the respondent as full and final settlement of its obligation to her. ]3 2.8 The appellant concluded by denying any indebtedness to the respondent, and alternatively requested a re-calculation of the respondent' s salary and pension benefits, taking into account the payments already made to the respondent. 2.9 In the counterclaim, the appellant averred in the alternative, that it is entitled to a set-off of the sum ofK287,000, the value of the motor vehicle, which monies remain unpaid by the respondent to it. The appellant also contended that it had been deprived use of the vehicle causing it to incur costs in hiring and using other vehicles. The appe llant counterclaimed as fo llows : i) The sum, of K287,000 being the value of the nwtor vehicle registration number ABZ 8405. ii) An order of set off of the amount in (i) from any amount found due to the plaintiff. iii) Damages for loss of use of motor vehicle registration number ABZ 8405. iv) Special damages in the sum of K240,000 and accruing, being cost hiring, and using other vehicles. Interest on the afore-stated amount and damages; and Costs. v) vi) 3. DECISION OF THE TRIAL COURT 3.1 Bah-Matandala J, presiding as a High Court Judge in Lusaka, determined the dispute between the parties and concluded that the termination of the respondent's employment from the appellant was executed in accordance with the terms of the employment contract agreed upon by both parties. 3.2 The Judge recognized that the disagreement between the parties centered on the amount owed to the respondent from the appellant in terminal benefits. The Court further observed that the respondent's claim amounted to salary arrears and outstanding leave days up to the time of her resignation, totaling K597,983.55. However, the appel lant's contention was that the respondent was owed only K95,000.00 at the time of her resignation, which encompassed salary a1Tears and leave days. 3.3 The Court below further observed that the appellant's witness, DWl, testified that the agreed sum of K505,163 .55, which was reached by the parties, when the respondent brought the matter to the labour office, was mistakenly calculated. DW 1 stated that after the appellant sought legal advice, it was clarified that the only outstanding amounts owed to the respondent were the salary arrears and leave days, which had already been settled through a payment of Kl 00,000. 3.4 The trial Court fu1iher acknowledged, as stated under paragraph 2.5 on page J 12 of its judgment, that the record lacked conclusive evidence regarding the calculation of leave days and salary an-ears owed at the time of the respondent's resignation. However, the Court noted that the parties had already reached an agreement on the amount owed at that time. The trial Comi referenced an email correspondence dated 15 August 2018 exchanged between the respondent and Barbara Bweupe, which was forwarded to other individuals within the appellant's employment, including Mr. Abel Ng'andu. JS It is shown on page 65 of the record and reads: ' Dear Barbara, my bank account has been credited with K20 330.20. Please give me a breakdown for this monies that have been paid into my account and also the current balance 011 my dues, inclusive the pension contributions.' 3.5 The Court examined the further evidence on record being the appellant's response to the effect that: ' Th e months paid were for March 3358, October 4324, November 4324 and December 8324, total K20,330.25. The balance inclusive of pension contributions is ZMK505,163.55. ' 3.6 On page 114 of the judgment, the trial Court expressed disagreement with the evidence of DW regarding the origin of the amount of K505. l 63.55, stating that the email correspondence occurred prior to the parties' visit to the labour office. The Court further noted that the correspondence between the parties and the amount on the payment form from the labour office aligned, indicating that the labour officer facilitated the parties in devising a payment plan for the appellant to settle the outstanding balance. 3. 7 Additionally, the Court observed that a payment of K 100,000 .00 was made to the respondent after the agreement. Consequently, the trial Court concluded that the appellant could therefore be estopped from retracting from the agreement. Moreover, in the absence of evidence to the contrary, the Court inferred that the said amount encompassed pension benefits. As a result, the Court ultimately held the appellant liable to pay the respondent an amount of K405 , 163 .55, representing the balance after payment of Kl00,000. J6 -' 3.8 In addressing the counterclaim, the Coutt examined the appellant's assertion that it had transfen-ed vehicle registration number ABZ 8405 to the respondent as part of an agreement for full and final settlement of its liability to the respondent. The Court observed the discrepancies in the appellant's evidence. It determined that there existed an oral agreement to transfer ownership of the vehicle, and that the appellant failed to produce any contrary record of that agreement, as mandated by Section 24(5) of the repealed Employment Act. This provision stipulates that: '(5) Where any dispute arises as to the terms and conditions of an oral contract other than a contract/or the employment of a casual employee, and the employer fails to produce a record of such contract made in accordance with the provisions of this section, the statement of the employee as to the nature of the terms and conditions shall be receivable as evidence of such terms and conditions unless the employer satisfies the court to the contrary.' 3.9 The trial Comt concluded that the appellant had not substantiated its claim that the motor vehicle had been transferred to the respondent as full and final settlement of the liability. The Comt noted that the appellant had admitted owing the respondent a sum of K505 , 163 .63 at the time when the vehicle was in the respondent's possession. Therefore, the appellant could not subsequently assert that this liability encompassed the value of the vehicle. J7 4. APPELLANT'S GROUNDS OF APPEAL 4.1 Being dissatisfied with the judgment rendered on 30 March 2022, the appellants filed a Notice and Memorandum of Appeal on 12 April 2022 advancing 3 grounds of appeal: (i) That the learned Judge erred in law and fact when she held that the appellant is estopped from reneging on the agreement to pay the respondent's sa/a,y arrears and leave days amounting in the sum of K505,163.55. (ii) The learned Judge erred in law and fact when she held that "Although the Record does not conclusively show evidence regarding the computation of leave days and salary arrears due to the Plaintiff at the time of exiting, it appears that the parties had already agreed on the amount due at the time the Plaintiff left employment. (iii) The learned Judge misdirected herself when she relied on email correspondence between the Respondent and an employee of the Appellant as the basis of the award of the sum of K505,163.55 to the respondent. 5. APPELLANT'S ARGUMENTS IN SUPPORT 5.1 The appellant filed their heads of argument on 6 July 2022 and their arguments in reply on 10 February 2023. The appellant also relied on their submissions before the lower court (shown on pages 98 to l 09 of the record of appeal). J8 5.2 In the arguments, the appellant argued grounds 1 and 3 together. Under the first ground, the appellant implored this Court to overturn the trial Court's factual findings that the appellant was estopped from reneging on the agreement to pay the respondent's salary arears and leave days amounting to K105,163. 5.3 The appellant maintained that the lower Court misapprehe nded the facts and evidence and urged this Court to interfere w ith the said findings. Our attention was directed to the decisions in the cases of Marcus Kampumpa Achiume v The Attorney General 1 and Wilson Masauso Zulu v Avondale Housing Project Limited,2 wherein the Supreme Cou1t established that an appellate Court may reverse findings of fact made by a trial Court, if such findings are deemed perverse, made in the absence of any rel evant evidence, or based on a misapprehension of the facts . 5.4 The appellant submitted that the finding of the lower Court, shown on page 24, lines 18 to 20 of the record of appeal, that in addition to salary arrears and leave days, the amount owed to the respondent includes pension benefits, is unsupported by evidence. The appellant argued that there was no proof of the respondent being owed pension benefits. In fact, the appellant highlighted DWI 's testimony, as shown on pages 127, lines 1 to 5 of the Record, that only salary an-ears from January 2017 to 31 July 20 I 7, and leave days were outstanding . 5.5 The appellant furth er emphasized that the employment contract, shown on pages 45, line 30 to page 46 lines 1 to 5 of the Record of Appeal, explicitly states that the respondent's entitlements were limited to salary an ears and leave days. The appellant stressed that even a review of the respondent's J9 pay slip, at pages 69 of the Record of Appeal, confirmed that no other remuneration beyond salary and leave days was due to her. 6. RESPONDENT'S HEADS OF ARGUMENTS 6.1 The respondent filed her heads of arguments on 31 August 2022, wh ich we have also duly considered. 6.2 Regarding the first ground of appeal, the respondent asserted that, following the respondent's resignation from employment, the appellant did not dispute that the respondent was owed salaiy atTears and leave days, in accordance w ith clause 14 of the employment contract. The appellant calculated this to KS0S ,163.5 5, which amount was agreed to by the parties and subsequently reduced to an agreement on 17 September 2018, as shown on pages 30 to 31 of the record of appeal. 6.3 The respondent contended that this agreement, executed by the parties on 17 September 2018 at the labour office, was the pertinent agreement, and not the contract of employment. The respondent argued that the appellant could not disown this agreement, which it willing ly signed, agreeing to pay the respondent the sum ofKS0S,163 .55 , out of wh ich a sum ofKl00,000 was paid on 22 December 2018, leaving a balance ofK404,163.55. 6.4 Reliance was placed on the case of National Dug Company Limited and Zambia Privatization Agency v Mary Katongo,5 where the Supreme Court guided that once parties have voluntarily and fee ly entered a legal contact, they are bound by the terms and the role of the Court is to give efficacy to the contract, when it has been breached, by respecting, J 10 upholding and enforcing it. Reliance was also placed on the English case of Trollop and Colls Limited v Northwest Metropolitan Regional Hospital Board,6 where the Courts were instructive on the role of courts in contract matters. 6.5 The respondent further asse1ted that, even if the contract of employment signed by the respondent is subject to interpretation and enforcement by the Court, there is no clause which the respondent has breached. She highlighted that the operative clause is clause 14, which pertains to the respondent's entitlements upon resignation, specifically, terminal benefits in the form of leave days and salary arrears, w hich the appellant was obligated to pay. The respondent also contended that the appellant's challenge to the amount of K505 , 163.55 as inaccurate 1s a mere afte1thought and constitutes extrinsic evidence, which should not be entertained by this Court. 6.6 In relation to ground two, the respondent's advocate submitted that the appellant appears to have abandoned this ground, as they have only argued grounds one and three in their heads of arguments. Nonetheless, their submission on this ground was that the Judge was on firm ground when she concluded that the pa1ties had already agreed on the amount due to the respondent at the time she left employment. This evidence is found in the e-mail of Barbara Bweupe to the respondent shown on page 25 of the record of appeal. The said e-mail confirms the amount of KS0S, 163.55 as the amount due to the respondent, and was copied to other senior members of staff, namely: Abel Ng'andu, David Mwale and Mumbuwa Liyungu, who agreed with what was communicated by e-mail to the respondent. This J 11 explains why they did not dispute the contents of the e-mail to the respondent. 6. 7 The respondent also pointed out that the email from Barbara Bweupe, which led to the dispute, was never contested and questioned by the appellant when it was initiated, nor was the amount disputed during proceedings at the labour office. The respondent asserted that the email was just one piece of evidence among others presented in the lower Court. Furthermore, it was submitted that the question of the email was never raised during the proceedings in the lower Comi and cited legal precedents such as Buchman v The Attorney General7 and that of Mus usu Kalenga Building Limited and Another v Richman 's Money Lenders Enterprises,8 wherein the Supreme Comi established that issues not raised in the lower Court cannot be introduced as a ground of appeal. 7. APPELLANT'S ARGUMENTS IN RELY 7.1 In the appellant's arguments in reply filed on 10 February 2023, they reiterated under the first ground of appeal, that there was a lack of evidence presented in the lower Court regarding the acquisition of pension benefits. 7 .2 The appellant argued that the basis of the case in the lower Court was the contract of employment, which according to them, only entitled the respondent to salary arrears and leave pay . The appellant stated that at the time of the respondent' s resignation, she had accrued 107.8 days of leave. 7.3 In response to the third ground of appeal, the appellant argued that the lower Comt erred relying on email correspondence between the respondent J 12 and an employee of the appellant as the basis of the award of the sum of K505,163.55. They contended that the lower Court failed to scrutinize the contract of employment to determine whether the respondent was legitimately entitled to the claimed sum. 7.4 The appellant also argued that the email cotTespondence relied upon by the Judge could not alter the terms of the respondent's contract of employment, which spelt out the remuneration of the respondent. It was asserted that once the parties have settled the terms of an agreement into a document, the court must only refer to the said document to understand the nature of the agreement and nothing else. 7.5 We were refe1Ted to the guidance of the Supreme Cou11 in the case of Sam Amon Mumba v Zambia Fisheries and Another,3 where they stated that: 'Where the parties have embodied the terms of a contract into a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written document.' 7.6 Similarly, reliance was placed on the case of lndo-Zambia Bank Limited v Muhanga,4 where it was guided that a pa11y cannot easily depart from the agreed terms as its own desire without sanction. Additionally, they criticized the trial Court for not clearly stating the rationale behind awarding pension benefits to the respondent. Jl3 8. THE HEARING 8.1 T he appeal was heard on 21 May 2024. The appellant was represented by Mr. Si tali of Messrs KP Martin Legal Practitioners, while the respondent was represented by Mr. A. Chileshe of Messrs Kasama Chambers. 9. DECISION OF THE COURT 9.1 We have carefully reviewed the impugned judgment, the record of appeal, and the respective arguments of the parties. 9.2 The arguments presented by both the parties in the grounds of appeal touch on the methodology employed by the trial Court in awarding the respondent a judgment sum of K505 , 163.55 . The arguments are inte1twined, and we w ill address them in the grounds simultaneously. 9.3 The contention under the first ground of appeal is that the trial Court erred by determining that the appellant is estopped from reneging on its agreement to compensate the respondent with salary arrears and leave days totaling K505, 163.55. To effectively address the issues arising in the first ground of appeal, it is essential to examine the factual background leading up to the initiation of the action and the subsequent trial proceedings. 9 .4 It is undisputed that the respondent served as the Administration Manager for the appellant from 1 January 2010 to 31 July 2017. A review of the respondent' s statement of claim, shown on page 34 of the record of appeal, in the lower Court provides insights into the key facts alleged. It states that in accordance with clause 14 of the conditions of service under which the J 14 plaintiff served, terminal benefits amounting to K505, 163.55 were calculated and agreed to be paid to the respondent by the appellant. On or about 24 December 2018, the appellant paid Kl 00,000 towards the respondent's terminal benefits, leaving a balance of K405 ,163.55. The further contention is that the appellant failed to pay the respondent's monthly salaries from August 2017 in accordance with the requirements of non-payment of benefits by an employer. These salaries accumulated to Kl92,820.00, thereby bringing the total amount owed by the appellant to the respondent to K597,983.55. 9.5 In its defence and counterclaim, the appellant deni ed owing the respondent the sum for K505 ,163.55, although it conceded that it had paid the respondent Kl 00,000 towards her terminal benefits. The appellant argued that the motor vehicle ABZ 8405, valued at K287,000, was transferred to the respondent as fu ll and final settlement of is liability towards the respondent. 9.6 From the pleadings in the trial Court, it is evident that the respondent's claims were based, in pa1t, on the terminal benefits outlined in clause 14 of the employment contract between the parties. This clause is shown on pages 42 to 50 of the record of appeal. It specifically deli neates the terminal benefits due to the respondent upon normal tem1ination as: a) Actual pay worked for to date of termination. b) One month's gross salary in lieu of notice; and c) Accrued leave days ' pay. d) Less owing to the company. Jl S 9. 7 The respondent testified before the lower Cou11 on 24 November 2021, her evidence shown on pages 115 to 12 7 of the record. In her deposition, she indicated her claim as K505, 163 .55 consisting of salary arears, including leave days and benefits as due to her at the time of her resignation. She said this amount was communicated to her via email and agreed upon in a 'payment plan agreement' made on 17 September 20 18 at the labour office, as shown at page 70 to 71 of the record of appeal. During cross examination, as shown on page 123 of the record of appeal, the respondent stated, '] was owed a little bit money, K505, 163.55 at the time of being in employment. It includes arrears, leave days and pension contributions.' 9.8 Fui1her evidence indicates that after the agreement reached at the labour office, wherein the appellant committed to a payment plan for the agreed sum of K505 , 163 .55, the appellant proceeded to transfer Kl 00,000 .00 to the respondent on 22 December 2018. This transaction is evidenced by the transfer of funds order shown on page 87 of the record of appeal. Additionally, it is undisputed that the respondent received K20,330.25 from the appellant, as acknowledged in an email dated 15 August 2018, shown on page 65 of the record of appeal. 9.9 During the trial in the lower Court, DW 1, the appellant' s w itness, who also served as the Managing Director of the appellant, testified, as shown on page 129 of the record of appeal, that the amount owed to the respondent for salary arrears was only K95,000.00. During re-examination, as shown on page 136 of the record, he insisted that the Kl 20,000 payment, wh ich had already been made, settled the appellant's obligations to the respondent concerning salary arrears and leave days. However, during cross examination, upon being reminded of the payment plan agreement signed JI 6 with the respondent for the sum ofK505,163.55, DWI acknowledged that ' the amount to be paid was K505,163. 55 relating to salary arrears and leave days .' Fmther, he admitted, as noted on page 132 of the record, that he ' was not forced to sign the document.' 9.10 From the aforementioned evidence, it is clear that DW l , the managing director of the appellant company, conceded that the amount owed to the respondent was K505,163.55, as specified on the payment plan agreement. He also confirmed that he willingly signed th is agreement on behalf of the appell ant at the labour office. This conflicted with the evidence of the appellant that they only owed the respondent K95,000.00 in salary arrears and leave days. Further, there is no explanation w hy they paid the respondent by Kl 00,000.00, in addition to the K20,330.25 previously paid, instead of simply reconciling the total disbursements to reflect the alleged K95,000.00 owed. 9.11 It is also notable that the appellant consistently fulfilled its obligations to the respondent from the initiation of the email correspondence in August 20 18, through the negotiation of the written agreement at the labour office, up to the subsequent transfer ofKl00,000.00 to the respondent. Given this consistent conduct, it would be imprudent for the appellant to assert a different situation and renege on the written agreement at this juncture. 9.12 After assessing the evidence before her, the trial Judge Court made the following determination under paragraph 2. 7 on page J 14, found on page 24 of the record of appeal: .. 'I am therefore inclined to agree with the plaintiff that after the payment of K20,330.25 was done, the balance remaining was K505,163.5. In the circumstance I agree with the plaintiff tlwt the defendant can be estopped from reneging on the agreement to pay salary arrears and leave days to the plaintiff amounting to KS0S.163.55. However, it is clear from the email correspondences, in the absence of any evidence by the plaintiff to the contrary, that this amount includes pension benefits. ' 9.13 From the excerpt of the judgment provided, the trial Judge concluded that the appellant was estopped from backing out of their written agreement with the respondent. It is this payment plan agreement, and not the contract of employment, plus the evidence on record, that served as the basis fo r the trial Court's determination of the appellant' s liability. 9.14 A lthough the parties argued that the trial Judge erred in including pension benefits, the appellant's own pleading, as referenced above, suggests that the payment of Kl 00,000.00 to the respondent included both salary arrears and pension benefits. Additionally, the respondent indicated under cross examination that the amount claimed, ' includes arrears, leave days, and pension contributions.' 9 .15 Given the absence of a clear breakdown of figures to distinguish between salary arrears, leave days payment, and potential pension benefits, and the evidence before her on the agreement of the parties on the amounts due, we conclude that the trial Court's decision to hold the appellant liable for the outstanding balance on the written agreement of K405 , 163 .55 was justified. The trial Court's reliance on the English case of Freeman v Jl8 Cooke9 is appropriate, as it provides guidance on similar matters as follows: 'Where one by his words or conduct, with the intention /hat the belief, which is induced should be acted upon, causes another to believe in the existence of a certain state of things, and induces him to act on that belief the former is precluded averring against the latter a different state of things as existing at that time.' 9.16 Furthermore, it is a well-established legal principle upheld in the case of Holmes Limited v Buildwell Construction Company Limited 10 which states that: 'Where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not generally admissible to add to, vary subtract from or contradict the terms of the written contract ... by way of exception to the above rule, extrinsic evidence may be admitted to show that the written instrument was not intended to express the whole agreement.' 9.17 Based on the reasons provided, we find no merit in grounds 1 and 3 of the appeal. Therefore, these grounds are dismissed accordingly. 9.1 8 Turning to ground 2, we have observed that this ground of appeal, as formulated, is narrative in nature, merely expressing the finding of the lower Court. It fails to specifically identify any error of law or fact committed by the lower Court. J 19 9.19 Order X rule 9 (2) of the Court of Appeal Rules provides as follows: 'A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively.' 9.20 Clearly, this ground 2 offends the mandatory provis ions of Order X, rule 9(2) of the CAR as it is not only na1Tative but fai ls to specify the points of law and fact that are alleged to have been wrongly decided by the Court. 9 .21 Additionally, we have observed, as accurately noted by the respondent ' s counsel in their arguments, that the appellant has not addressed the second ground of appeal in their heads of argument dated 6 July 2022. T he appellant's submission in the heads of argument in reply of IO February 2023 is also contradictory. On the one hand, it asserts that submissions related to ground 2 are contained in the heads of argument of 6 July 2022, w hich they are not, and on the other hand, it indicates that the appellant will move the Court to correct the ground to reflect accordingly. This application was not made at the hearing. Considering the foregoing, and considering that the ground of appeal was abandoned, and in any event, offends the provisions of the Cou1t of Appeal Act, we dismiss the second ground of appeal. 9.22 In light of our observations leading to the decision in this appeal, we fee l compelled to comment on the basis for our position. We are acute ly aware of the fact that action in the lower Court was initiated based on alleged J20 • l terminal benefits claims to be due and outstanding to the respondent. The primary claim by the respondent was for the payment of K597,983.55, purportedly for terminals benefits. A review of the record shows that the respondent commenced employment w ith the appellant on 1 January 2010 to 31 July 2007 . As reflected on page 41 to 50 of the record of appeal, the respondent was entitled to a monthly salary of K7,000. A straightfo rward calculation of the total salary the respondent could have accumulated over this 79-month period amounts to K553,000. 9.23 The evidence further shows that the respondent admitted that she had been unpaid for 4 months and the record showed her accum ul ated leave days were approximately 107. From the foregoi ng, it is inconceivable that the respondent could justifiably claim salary arears and leave pay, amounting to K597,983.55 fo r the same period. Our only justification for dismissing the appellant's appeal is that the appellant committed to a payment plan for the sum of K505,183.55 as being due and owing to the respondent. No legal basis has been presented by the appellant to dispute this duly executed document, as shown on page 70 to 71 of the record of appea l. Consequently, we are bound to uphold the sanctity of a duly executed agreement, which the parties willingly and voluntarily entered into. This has been the sole basis for our decision herei n. 10. CONCLUSION 10.1 Having considered the foregoing, the appeal is unsuccessful in its entirety. J2 l 10.2 Therefore, the costs of this appeal shall be borne by the appellant, to be taxed in default of an agreement. ~> - - -----ii C. K. MakungT COURT OF APPEAL JUDGE ~~> f= ~A. Sharpe-Phi\ COURT OF APPEAL JUDGE J22