Mirriam Banda Zimba v CFB Medical Centre Limited (CAZ/08/244/2022) [2022] ZMCA 219 (15 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CAZ/08/344/2022 CORAM: SIAVWAPA JA, FOR THE APPELLANT: Messrs. Nsapato & Co Advocates RULING Legislation Cited: 1. Court of Appeal Act No. 7 of2016 of the Laws of Zambia 2. Court of Appeal Rules Statutory Instrument No 65 of2016 1.0 INTRODUCTION 1.1 This application is made ex-parte, for an order for leave to appeal to this Court pursuant to section 22 of the Court of Appeal Act and Order 10 Rule 4(5) of the Court of Appeal Rules. 1.2 It is dated 25th August 2022 and supported by an affidavit of even date. 2.0 BACKGROUND 2.1 On 22 nd August 2022, a judgment was delivered by the High Court wherein it held, inter alia, that the Applicant failed to prove she had a legitimate expectation of renewal of her contract of employment. 2.2 It was further stated in the Judgment that leave to appeal was not granted. 2.3 Aggrieved by the judgment of the Court Below, the Applicant has launched this application as she is of the view that she ought to obtain leave to appeal as it was denied in the High Court. 3.0 THE APPLICATION 3 .1 The Applicant has exhibited a draft notice of appeal and memorandum of appeal to demonstrate that the intended grounds of appeal raise points of law of public importance and have reasonable prospects of success. 3.2 To support this application, the argument is that since leave was denied by the Court below, the Applicant, pursuant to Order 10 Rule 4(5) of the Court of Appeal Rules, must apply for leave to appeal before a single judge of the Court of Appeal. R2 3.3 According to the Applicant, leave to appeal should be granted as it raises points of law of public importance. It is argued that the Court of appeal should pronounce itself on the issue of legitimate expectations in the renewal of employment contracts and the nature and scope of the manner in which an employer must exercise its discretion. 3.4 Moving on to the prospects of success, I am referred to the proposed grounds of appeal and the Applicant maintains that she has an arguable case fit for further consideration on appeal. 4.0 THELAW 4.1 Section 25 of the Court of Appeal Act provides as follows: Subject to section twenty-three, a person who intends to appeal to the Court from a judgment shall do so within thirty days of the judgment. 4.2 Section 23 of the Court of Appeal Act stipulates the instances when an appeal to the Court of Appeal will require leave of the Court below even though the intended Appellant is within the thirty days provided above. It states: (1) An appeal shall not lie- (a) from an order allowing an extension of time for appealing from a judgment; (b) from an order of a judge of the Court giving unconditional leave to defend an action; R3 (c) from a judgment given by the High Court in the exercise of it's appellate or review jurisdiction, without the leave of the High Court or, if that has been refused, without the leave ofa judge of the Court; (d) from an order made with the consent of the parties or from an order as to costs only, which by law is left to the discretion of the court or quasi judicial body, without the leave of the court or of the judge who, or quasi-judicial body which, made the order or, if that has been refused, without the leave of a judge of the Court; (e) from an order made in chambers by a judge of the High Court or by a quasi-judicial body or from an interlocutory order or interlocutory judgment made or given by a judge of the High Court or by a quasi-judicial body, without the leave of that judge or quasi-judicial body or, if that has been refused, without the leave of a judge of the Court, except in the following cases: (i) where the liberty of the subject or the custody of infants is concerned; (ii) where an injunction or the appointment of a receiver is granted or refused; (iii) in the case of a decision determining the claim of a creditor or the liability of any R4 contributory, director or other officer under the Companies Act; (iv) in the case of a decree nisi in a matrimonial cause, judgment or order in an Admiralty action determining liability; or (v) in the case of an order on a special case stated under any law relating to arbitration; and (f) from an order absolute for the dissolution or nullity of marriage made by a judge of the High Court in favour of a party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree. (2) An order refusing unconditional leave to defend an action is not an interlocutory order or interlocutory judgment within the meaning of paragraph (e) of subsection (1). 4.3 A perusal of the above provision reveals that there is no requirement for leave to be obtained before a party can appeal from a judgment of the industrial relations division of the High Court. RS 4.4 Further, the judgment of the Court having been delivered on 22nd August 2022, the Applicant is within the 30 days provided under Section 25 of the Court of Appeal Act. 4.5 Consequently, the Applicant's application before me is misconceived as the instant case is not one where leave to appeal is required. 5.0 CONCLUSION 5.1 Given what I have stated above, this application is accordingly dismissed. 5.2 The Applicant is at liberty to lodge the requisite documents. Dated this 15th day of September, 2022. ;... -,' M. J. JA VW APA COURT OF APPEAL JUDGE R6