Zambia National Commercial Bank v Moses Banda (Appeal No. 174/2018; CAZ/8/299/2018) [2019] ZMCA 336 (11 October 2019)

Rl IN THE COURT OF APPEAL OF,IJ4~u . .p. L;~ HOLDEN AT LUSAKA ( Civil Jurisdiction) ,,_ AL N'O. 174/2018 /299/2018 BETWEEN: ZAMBIA NATIONAL COMMERCIAL BANK PLC APPELLANT AND MOSES BANDA RESPONDENT CORAM: CHISHJlMBA, MULONGOTI,, NGULUBE, JfJA On 16th Sep,tember a.n.d 1 1th Oct ober', 2019 Fo,r the Ap,pe:llain,t : Mr. I. M. Mabbolobbolo, Messrs Makala and Company Fo,r the R'espa,ndent: No app earance RULING NGULUBE,, JfA d ehvered the ruling of the Court. Cases rej'erre:d t o: 1. Savenda. Management Services Limited vs Stanbic Bank Zambia Pie, Selected Judgment Number 10 of 2018 2. Buchman vs Attorney General(] 993-1994) Z. R. 131 3. Galaunia Fanns Umited vs National Milling Comparry Limited and Another (2004) Z. R. 1 4. Zambia Railways Limited vs David Kellies Mukalu and 11 others, SCZ/ 18/04/2005 5. So nny Paul Mulenga and Others vs lnvestrust Bank Limited ( 1999) Z. R.101 6. Nyampala Safan·s {ZJ Limited and four others us Zambia Wildlife Authority and six others, (2 004) Z. R.49. Legis,lation referred to:: 1. The Court of Appeal Act, Number 7 of2016 2. Rules of the Supreme Court, 1999 Edition 3. The Court of Appeal Rules, Sta tutory Instrument Number 65 of 2016 IR.2 This ruling relates to two applications on the part of the appellant simultaneously. The first is an application for leave to appeal to the Suprem,e Court and the second is an order for Stay of Execution of the Judgment dated 28th August, 2019, pending the application for leave to appeal to the Supreme Court and the determination of the appeal. The application for leave to appeal is made pursuant to Section 13 of the Court of Appeal Act:11., while the application for Stay of Execution is made pursuant to Order 59 Rule 13{2) of the . Rules of the Supreme Court 1999 Edition. The background to this application is that the respondent lodged an action in the court below against the appellant by way of Writ of Summons for breach of contract, payment of security guard allowance of 15% of the basic salary and loss of final salary at MS5 level to calculate terminal benefits. He also claimed interest and costs. The court found that the respondent's guard allowance was discontinued and that he was entitled to guard allowance to be included in the computation of his terminal benefits. The respondent's case succeeded on guard allowance only and was referred to assessment. We upheld the decision of the court below in our judgment delivered on 28th August, 2019. Dissatisfied with the Judgment of this court, the appellant seeks leave to appeal to the Supreme Court as well as an order for stay of execution of R3 the Judgment pending the application for leave to appeal to the Supreme Court and determination of the appeal. Both applications are supported by an affidavit in support sworn by one Sandra Ndemanga Wamulume, Head Legal at the appellant, which was filed together with summons, a list of authorities and skeleton arguments on 10th September, 2019. The gist of the affidavit is that the appellant is dissatisfied with the Judgment of this court and seeks leave of the court to appeal to the Supreme Court on proposed grounds as outlined 1n the intended memorandum of appeal. The appellant further seeks an order to stay execution of Judgment and believes that the prospects of the appeal succeeding are good, looking at the grounds in the intended memorandum of appeal. It is deposed that if the respondent is paid by the appellant as per assessment of the registrar, the respondent being a natural person with likely limited resources is unlikely to pay back the money in the event that the appeal is successful in the Supreme Court. At the hearing, Mr Mabbolobbolo, counsel for the appellant relied on the affidavit in support and submitted that the court has power to grant the application provided that sufficient cause is shown for doing so. Mr R4 Mabbolobbolo also informed us that counsel for the respondent, Mr Masengu was aware of this application, having been served but was not in court and indicated that he had no obj ection to the application. In the skeleton arguments, counsel for the appellant referred to Section 13( 1)1 of the Court of Appeal Act 1 which provides that an appeal from a Judgment of the court shal1 be to the Supreme Court with leave of the court. We were fu rther referred to Section. 13(3) of the Court of Appeal Act 1 which provides that the court may grant leave to appeal where it considers that the appeal raises a point of law of public importance, that the appeal would have a reasonable prospect of success, or that there is some other compeHing reason for the appeal to be heard. We were referred to the case of Savenda Manage:ment Se.rvices Limited vs Stan.hie Bank Zamb,ia Plc·1 , where the Supreme Court said inter alia that- ''the: Court of Appeal must w·ai:t. for a party to move it after it has deliv·e:red i.tsj'u.dgment see·k.tng le:ave to appeal, and if it is sa.tisfie:d that on.e ojth.e grou.nds for granting leave has been satisfi.ed~, it must grant: leave, if not, it must r·efuse the· leave.'' RS Counsel submitted that the appeal has high prospects of success as the court did not properly apply the case of Buchman Vs At torney Gen e ra l 2 which the court relied upon to decline the argument by the appellant that the respondent should not be allowed to resile from his voluntary undertaking that he would have no further claims against the appellant whatsoever under any circumstances. The court stated that the argument could not be sustained because it was improper to bring it up on appeal since it was not raised in the court below . Counsel argued that t his was a serious misdirection by t he court because the matter was canvassed in the court below as may be gleaned from the proceedings in the record of appeal and the final submissions in the court below. It was further argued that the court misdirected itself when it stated at page J18 that the appellant's case was weak,ened because it did not produce any documentary evidence that the respondent's s a lary included guard allowance from the time he was transferred to Lusaka up to the time he retired. Counsel c ontended tha t the court shifted the burden of proof from the respondent to the a ppellant. We were referre d to the case of Galaunia Farms Limited vs National Milling Company Limite,d and anotber3 where the Supre m e Court held that- R6 "A plaintiff must prove his case and if he fails to do so, the merefailu.re of the opponent's defence does not entit le him to Judgment.,, Counsel submitted that the requirements set out in section 13(3) of the Court of Appeal Act 1 to grant leave to the appellant to appeal to the Supreme Court had been satisfied. He further stated that the appeal raises a point of law of public importance which the Supreme Court has adjudicated upon in earlier matters, but has been ignored, qualified and tempered in this court. Counsel pointed out that the appeal has reasonable prospects of success and that there are compelling reasons for the appeal to be heard. Counsel further sought an order for stay of execution of the Judgment dated 28th August, 2019, pending the application for leave to appeal and determination of the appeal. On this issue, we were referred to the cases of Zambia Railways, Limited vs David Kellies Mukalu and 11 others4 , Sonny Paul Mulenga and others vs Investrust Bank Limited5 and Nyampala Safaris (Z) Limited and four others vs Zambia Wildlife Authority6. In the Nyampala Safaris case, the Supreme Court stated that a stay of execution is only granted on good and compelling reasons and that the R7 application for stay of execution demonstrates the basis on which such a stay should be. granted. The appellant urged us to grant the Order for stay of execution of the Judgment as wen. as an Order for Leave to appeal to the Supreme Court as prayed. We have carefully considered the application for leave to appeal to the Supreme Court, the affidavit in support, skeleton arguments and List of Authorities as well as the submission by counsel. We have perused the record from the court be]ow, particu]arly the letter on pages 261 to 262 of the record. We are satisfied that the issue of the respondent undertaking that he wou]d have no further claims against the appellant was raised in the lower court. The respondent signed the letter of dismissal although he stated that he was compelled to sign it. We therefore agree with counsel for the appellant that this matter was canvassed in the court below. However, we are of the firm view that though this proposed ground has reasonable prospects of appeal, it would not change the outcome overall. We also do not. find prospects of success in the second proposed ground of appeal. This is because we are of the view that the Bank failed to prove that the guard allowance was merged or included in the salary. We do not see any likelihood of success in the intended appeal. The application for leave to appea1 is accordingly refused. We further do not find any reason to deal with the application for Stay of E:xecution as there is no pending RS appeal to the Supreme Court. Accordingly, the application for Stay of Execution is dis·missed for lack of merit. Costs are awarded to the respondent, to be taxed in default of agreement. F. M. CHISHIMBA COURT OF APPEAL JUDGE .. -~0/.!CI~~-..... J. Z. MULONGOTI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE