HAMBANI NGWENYA AND ANOTHER V LUBAMBE COPPER MINE LIMITED (APPLICATION NO. SP 49/2024) [2025] ZMCA 72 (16 April 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO. SP 49/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: HAMBANI NGWENYA ANNIE MUSONDA KAW AND ...... .. ........ ___ __ 1 6 APR 2025 IVIL REGISTRY 50067 , \.. 1 ST APPLICANT 2ND APPLICANT LUBAMBE COPPER MINE LIMITED RESPONDENT CORAM: Kondolo, SC, Majula and Muzenga, JJA On 26th March 2025 and 16th April 2025 For the Applicants: Ms. D. Bunting of Mesdames D Bunting & Associates, Mr. R. K. Malipenga of Robson Malipenga & Co and Mr. C. Chungu of Nsapato & Co Advocates For the Respondent: Mr. D. M. Chakoleka and Mr. 0. Hasalama of Mulenga Mundashi Legal Practitioners RULING MUZENGA JA delivered the Ruling of the Court. Cases referred to:- 1. Bidvest Food Zambia Limited and 4 Others v. CAA Import and Export Limited - Appeal 56/2017. 2. Savenda Management Services v. Stanbic Zambia Limited - Appeal No. 37 of 2017. 3. Citibank Zambia Limited v. Suhayl Dudhia - Appeal No. SCZ/8/08/ 2022. 4. Swain v. Hillman (1999) CPLR 779 5. SA Airlink (PTY) Limited v. Zambia Skyways Limited - CAZ/08/316/2019. ' ! R2 6. Fratelli Locci Extaxion Mineseal v. Road Development Agency-Appeal No. 112 of 2017. 7. Town Council of Awendi v. Nelson Odour Onyango and 13 Others (2015) EKLR. 8. Zambia Telecommunications Company Limited v. Simate and Others - SCZ/8/005/2018. Legislation referred to:- 1. The Court of Appeal Act No. 7 of 2016. 2. The Employment Code Act No. 3 of 2019. 3. Arbitration Act No. 19 of 2000. 1.0 INTRODUCTION 1.1 This application is by way of a Notice of Motion for leave to appeal to the Supreme Court pursuant to Section 13(1) and (3)(a)(c) and ( d) of the Court of Appeal Act No. 7 of 2016, as read with Order 11 rule 1 (1) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 1.2 The applicants were the respondents in the court below and the main appeal. We shall refer to the parties in this Ruling as they appear in this application for leave to appeal to the Supreme Court. 2.0 BACKGROUND 2.1 The background to this application is that the respondent commenced an action against the applicants in the High Court by way of originating summons seeking to set aside the arbitral award dated 7th September 2022 on grounds inter aliathat the award dealt R3 with matters beyond the submission to arbitration and that the award conflicted with public policy. 2.2 The learned High Court Judge heard the matter and by judgment dated 23rd December 2022, refused to set aside the arbitral award made in favour of the applicants. The respondent appealed to this court and on 27th June 2024, we delivered judgment which is the subject of this application. 2.3 Discontent with our judgment, the applicants filed this application on 10th July 2024, seeking leave to appeal to the Supreme Court. 3.0 OUR DECISION ON APPEAL 3.1 After hearing the appeal, we found that the subject matter of the arbitration hinging on discrimination was not capable of settlement by arbitration and that the award is in conflict with public policy. We consequently set aside the arbitral award. 4.0 THIS APP LI CATION 4.1 This application is supported by an affidavit and skeleton arguments. The gist of the affidavit is that the intended appeal raises fundamental points of law of public importance in relation to arbitration proceedings, the role of the court and unfair discrimination. It was averred that the intended appeal had prospects of success as this court exceeded its jurisdiction by treating the review of the arbitral tribunal award as an appeal and thereby delving into the merits of the award. R4 4.2 It was averred that the intended appeal has other compelling reasons for the appeal to be heard by the Supreme Court on the premise that; a) It is in the interest of justice that the Supreme Court pronounces itself on issues of unfair discrimination as it relates to equal pay for work of equal value under the Employment Code Act and how disputes emanating from the same ought to be settled in light of contracts that contain arbitration clauses; b) the intended appeal discloses a novel matter fit for further consideration before the Supreme Court which has never been adjudicated before regarding whether issues of unfair discrimination cannot be resolved through arbitration; c) It is in the interest of justice that the Supreme Court is accorded an opportunity to develop Zambia's jurisprudence with respect to arbitration and the court's standards for setting aside arbitration awards; d) It is in the interest of justice that given the rise of the use of arbitration, there is need for the Supreme Court to provide clear guidance on which matters cannot be RS subjected to arbitration, which would be critical for the general public and litigants in future; e) It is in the interest of justice that the Supreme Court pronounces itself on the concept of freedom of contract in employment following the enactment of the Employment Code Act; and f) It is also in the interest of justice that the role, powers and responsibilities of the arbitral tribunal are defined, more specifically, whether an arbitral tribunal can compare employment contracts of other employee, that are not party to the matter under settlement, for the sole purpose of determining and settling disputes relating to unfair discrimination. 4.3 That in the premises, the appeal would avail the Supreme Court an opportunity to pronounce itself on crucial points that not only affect the parties but the general public. 4.4 In the skeleton arguments, it was argued that this was an ideal case for which this court can grant leave to the applicants to enable legal questions this case has raised to be considered by the Supreme Court as they meet the criteria envisaged under section 13(3) of the Court of Appeal Act. 4.5 The applicants referred us to the case of Bidvest Food Zambia Limited and 4 Others v. CAA Import and Export Limited R6 Appeal1 and went to great length to demonstrate, with a myriad of case authorities, which we will not regurgitate, how this case meets the threshold envisaged under Section 13(3)( a) of the Court of Appeal Act. 4.6 Referring to the case of Savenda Management Services v. Stanbic Zambia Limited2 and Citibank Zambia Limited v. Suhayl Dudhia3 , it was submitted that the intended appeal in its entirety raises points of law of public importance within the interpretation of Section 13(3)(a) of the Court of Appeal Act as demonstrated in the proposed grounds of appeal. That the intended appeal raises new issues that have never been determined such as whether issues of unfair discrimination under the Employment Code Act can be settled through arbitration, the concept of freedom of contract with the enactment of the Employment Code Act, whether the arbitral tribunal can hear and determine disputes of unfair discrimination and whether the powers of the court under Section 24 of the Court of Appeal can be used to oust the jurisdiction of the arbitral tribunal. 4. 7 It was contended that all these issues go beyond the rights of the parties to this matter as the public in the field of arbitration and employment law are keen to know the fate of their employment law disputes whose contracts have an arbitration clause. 4.8 On the question of whether the appeal has a reasonable prospect of success as envisaged by Section 13(3)(c) of the Court of Appeal Act, reliance was placed on the Bidvest case supra and R7 Swain v. Hillman.4 It was argued that they significantly demonstrated that the intended appeal raised a significant point of law of public importance and on that basis alone, it can be argued that the appeal has reasonable prospects of success. 4. 9 It was argued that there was a likelihood that the Supreme Court would give judgment in favour of the applicants as the record will show that the matter was in favour of the applicants both in the arbitral proceedings as well as the High Court. 4.10 It was further contended that the intended appeal reveals sufficient compelling reasons for leave to be granted to appeal to the Supreme Court. 4.11 In sum, we were urged to grant the applicants leave to appeal to the Supreme Court. 4.12 The application was opposed by way of an affidavit, list of authorities and skeleton arguments. The gist of the respondent's affidavit in opposition was that a review of the Notice of Motion shows that the applicants have not demonstrated that the intended appeal has reasonable prospects of success on the grounds advanced in their memorandum of appeal. 4.13 The respondent avows that there are no points of law of public importance that have arisen in this matter as the issues in dispute emanate from private contracts between parties to a contract and further that this court was within its jurisdiction when it delivered the judgment and set aside the arbitral award. R8 4.14 In advancing its argument, the respondent referred us to our decision in SA Airlink (PTY) Limited v. Zambia Skyways Limited5 and the case Fratelli Locci Extaxion Mineseal v. Road Development Agency. 6 4.15 In arguing whether the intended appeal raises a point of public importance, we were referred to Bidvest Food Zambia Ltd and Others v. CAA Imports and Exports supra and the case of Town Council of Awendi v. Nelson Odour Onyango and 13 Others.7 The respondent contended in this respect that the grounds which the applicants wish to have settled by the Supreme Court relate to an arbitral award that only affects them and issues pertaining to their personal contracts with no bearing on the interest of the general public. 4.16 The respondent further referred to the case of Zambia Telecommunications Company Limited v. Simate and Others,8 submitting that the intended appeal has no prospects of success and that leave to appeal which is granted sparingly should not be granted in this case. It was contended that the applicant's intended appeal falls short of the requirement set out under Section 13(3)( d) of the Court of Appeal Act and that there are no compelling reasons for the Supreme Court to hear it. 4.17 The applicants filed an affidavit, list of authorities and skeleton arguments in reply which were a repetition of the affidavit in support and their skeleton arguments. We will not replicate them but refer to them as and when necessary. R9 5.0 HEARING 5.1 At the hearing, both counsel relied on their affidavits in support and affidavit in opposition, as well as their skeleton arguments and list of authorities. Both of them made brief oral augmentations. We have noted the oral submissions which we do not intend to reproduce herein. 6.0 OUR DECISION 6.1 We have carefully considered the applicants' Notice of Motion, the affidavits for and against, the skeleton arguments relied on by each party, and the oral submissions by counsel. The application before us is for leave to appeal to the Supreme Court against the Ruling of the Court. It is settled that an appeal to the Supreme Court in Zambia is no longer a matter of right as leave to do so must be sought and granted by the Court of Appeal. 6.2 Section 13 of the Court of Appeal Act provides that; "The Court may grant leave to appeal where it considers that- a) The appeal raises a point of law of public importance; b) It is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; c) The appeal would have a reasonable prospect of success; or RlO d) There is some other compelling reason for the appeal to be heard." 6.3 The Supreme Court in the case of Savenda Management Services v. Stanbic Bank Zambia Limited supra, gave guidelines on what this Court should take into consideration when handling an application for leave to appeal. The Supreme Court guided that: "The permissible grounds for the grant of leave to appeal in civil matters are set out in section 13(3)(a) (c) (d). These are where: the appeal raises a point of law of public importance; the appeal would have a reasonable prospect of success; or there are some compelling reasons for the appeal to be heard. The rationale for the foregoing is an acknowledgement of the fact that the resources of the courts are overstretched and if it were otherwise, the doors to justice would be open to busybodies whose only aim is to delay the inevitable execution of a judgment. We are of the firm view that this court should only be open to a litigant who has moved the Court of Appeal and met the threshold set out in section 13 (3)." 6.4 The applicants have with enthusiasm argued that the intended appeal raises fundamental points of law of public importance in relation to arbitration proceedings, the role of the court and unfair discrimination. It was averred that the intended appeal had prospects of success as this court exceeded its jurisdiction by treating the review of the arbitral tribunal award as an appeal and thereby delving into the merits of the award. R11 6.5 On the other hand, the respondent has argued that the applicants' intended appeal does not raise a point of public importance as it arises out of private law and freedom of contract between the parties. The respondent contends that the intended appeal has no reasonable prospects of success and further falls short of meeting the requirement provided for in Section 13(3)(d) of the Act. 6.6 Section 17(2)(b) of The Arbitration Act allows the court to set aside an arbitral award where it is found that the subject matter of the dispute was not capable of settlement by arbitration; or that the award was in conflict with public policy. 6. 7 We did state in our judgment that arbitration proceedings being private should focus on issues or disputes arising from the contract between the parties to the arbitration and the arbitral tribunal could thus not call in aid other people's contracts in resolving the dispute or exercise its power ex debito Justitiaeas that power is the preserve of the court. We were of the further view that the issue of discrimination, based on the Employment Code or any other statutory provision; or The Constitution of Zambia lies in the sphere of public law and cannot therefore be resolved through arbitration. 6.8 Having said that, we do not appreciate how the intended appeal raises a point of law of public importance or demonstrates that the issues presented rise above the interests of the parties concerned and have broad ramifications for the public. R12 6. 9 Moreover, the fact that the matter was in the applicants' favour both in the arbitral proceedings as well as the High Court does not guarantee success of the intended appeal in the Supreme Court. We have previewed the intended grounds of appeal and hold the view that they mirror no reasonable prospects of success. We also do not see any compelling reasons for the appeal to be heard by the Supreme Court. 6.10 We therefore find that the appl icants' application for leave to appeal to the Supreme Court does not satisfy the requirements set out in Section 13 of the Court of Appeal Act. 6.11 For the aforementioned reasons, we find no merit in this application and we accordingly dismiss it. Costs to follow the event, to be taxed in default of agreement. .,-------: . C------·------- ·············································· M. M. KONDOLO, SC COURT OF APPEAL JUDGE ......... t.<.1!!:1{P.1/2v.fi ......... . B. M. kAJULA COURT OF APPEAL JUDGE NGA COURT OF APPEAL JUDGE