Konkola Copper Mines Plc v Nyambe Martin Nyambe and Ors (NOM. 58 OF 2018) [2019] ZMCA 445 (12 April 2019)

IN THE COURT OF APPEAL OF ZAMBIA NOM. 58 OF 2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KONKOLA COPPER MINES PL T AND NYAMBE MARTIN NYAMBE 1st RESPONDENT GABRIEL MWELWA AND 24 OTHERS 2 nd RESPONDENT LEVYSON LWESELA 3 rd RESPONDENT EVANS MWENYA 4 th RESPONDENT KASONGO LINGSON AMOS AND 64 OTHERS ,._ ' ,'; 1 . 5 th RESPONDENT { CORAM : Chashi, L~ngalenga and Siavwapa, JJA ON: 12th April 2019 For the Applicant: B. Katebe, Messrs Kitwe Chambers For the Respondent: H. Zulu, Messrs ECB Legal Practitioners RULING CHASHI, JA delivered the Ruling of the Court. Legislation referred to: -R 2- 1. The Court of Appeal Act, No. 7 of 2016 2. The Supreme Court Practice (White Book) 1999 This motion is for leave to appeal to the Supreme Court. The application has been made pursuant to Section 13 (1) (2) and (3) of The Court of Appeal Act (CAA) 1 . This Court delivered its Judgment on 10th December 2018, upholding the Respondents appeal, whilst dismissing the cross appeal by the Applicant herein. According to the Applicant, the intended appeal has high prospects of success and also raises points of law which are of public interest. The intended grounds of appeal appear at page 46 of the record and are couched as follows: (1) The Court of Appeal misdirected itself in law and fact when it held that the lower court misdirected itself in finding that the Respondents were retired prematurely at the age of fifty-five (55) years because that was what the retirement age was and is governed by the National Pension Scheme Act No. 40 of 1996 as amended by Act No. 7 of 2015, the Pension Scheme Regulation Act No. 28 of 1996 Cap 255 and the Income Tax Act Cap 323 as amended by Act No. 19 of 2015 of the Laws of Zambia and the said retirement laws had set the normal -R 3- retirement age at sixty (60) years at the material time the Respondents were unlawfully retired at 55 years by the Appellant. (2) The Court of Appeal misdirected itself in law and fact when it held that the Respondents cannot rely on the retirement age in the amended National Pension Scheme Act as it does not apply to them when the Respondents and the Appellant were Members and contributing Employer respectively to National Pension Scheme Act No. 40 of 1996 as amended by Act No. 7 of 2015 of the Laws of Zambia and the same was not in dispute by the parties hereto in the High Court and the Court of Appeal. (3) The Court of Appeal misdirected itself in law and fact when it held that the National Pension Scheme (Amendment) Act No. 7 of 2015 and Income Tax Amendment Act No. 19 of 2015 only affect those who never made irrevocable options to retire at the age of fifty-five years before the amendment and those who joined the Respondent after the amendment when the Respondents never made irrevocable options to retire at the age of 55 years and the High Court Industrial/ Labour Division had so found and held in its Judgment delivered on 13th October 2017 in respect of this matter. (4) The Court of Appeal misdirected itself in law and fact, when it -R 4- held that the Respondents were awarded pension benefits for periods that they did not work and this amounted to unjust enrichment when the High Court Industrial and Labour Division deemed the same to be an appropriate remedy to exercise in its discretion under Section 85A of the Industrial and Labour Relations Act Cap 269 of the Laws of Zambia. (5) The Court of Appeal misdirected itself in law and fact when it held that the Respondents did not establish that their respective contracts of employment were breached by the Appellant and were therefore not entitled to an award of damages when the Respondents' contracts of employment were governed by the retirement laws and the same was set at 60 years but the Respondents were unlawfully retired by the Appellant at 55 years. (6) The Court of Appeal misdirected itself in law and fact when it exercised its discretion to award costs to the Appellant in the High Court and the Court of Appeal when the Respondents are former employees of the Appellant who went to Court to exercise and enforce their genuine rights and had not acted mala fide. -R 5- (7) The Court of Appeal misdirected itself in law and in fact when it dismissed the Respondents' cross appeal for lack of merit because the appeal of the Appellant had succeeded on all grounds when the said appeal should not have succeeded by reasons of the Grounds of Appeal advanced herein from 1 to 6. The application is opposed on the grounds that the intended appeal does not raise any new triable issues or questions of importance that need further deliberation by the Supreme Court as the principles of accrued rights and sanctity of contract have been pronounced several times by our courts. Further that, the Applicant has not demonstrated that the appeal has prospects of success. Our attention was drawn to the provisions of Order 59 / 14 (18) of the Rules of The Supreme Court (RSC) 2 which states as follows: "The general test which the Court applies in deciding whether or not to grant leave is this: leave will normally be granted unless the grounds of appeal have no realistic prospects of success. The Court of Appeal may also grant leave if the question is one of general principle, decided for the first time or a question of importance upon which further -R6- argument and decision of the Court of appeal would be to the public interest." We should state from the onset that Order 59/ 14 (1) RSC is inapplicable to this motion as it deals with appeals from the court below to this Court and not from this Court to the Supreme Court. At the hearing of the motion, both Counsel relied on their respective affidavit evidence and written submissions which we have considered. A thorough look at the intended grounds of appeal shows that grounds one, two, three, four, five and seven have been recast. This Court in its Judgment addressed all the issues gravitating on the sanctity and/ or freedom of contracts between the parties and the retrospective applicability of laws when not provided for in the contract. The sixth ground of appeal attacks the awarding of costs. Section 13 (1), (2) and (3) (CAA) on which this motion is premised provides as follows: "13 (1) An appeal from judgment of the Court shall lie to the Supreme Court with leave of the Court. -R 7- (2) An application for leave to appeal} under subsection (1) shall be made withinfourteen days of the judgment. (3) 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 (d) there is some other compelling reason for appeal to be heard. }} A perusal of the Judgment shows that all the issues which were before the Court were addressed and the applicable authorities cited in upholding the appeal and dismissing of the cross appeal. Further, we do not find any novel nor question of law of public importance which is bereft of authorities in our jurisdiction which will need to be addressed by the Supreme Court. -R 8- However, in view of the interest the Judgment has attracted from many interested parties, in particular th e pension scheme authorities and employees in several organisations who were in regular employment at the time of the enactment of the National Pension Scheme (Amendment) Act No . 7 of 2015, we are of the view that this is a compelling reason and also the appeal raises points of law of public importance to have the appeal heard by the Supreme Court. We accordingly grant leave to appeal on condition that the Applicant do file their notice of appeal and memorandum of appeal within fourteen (14) days from the date hereof. Each party to bear its own costs. J. CHASHI COURT OF APPEAL JUDGE ?l -~ ~ -=- F . M. LENGALENGA COURT OF APPEAL JUDGE M. J . SIA: APA COURT OF APPEAL JUDGE