Zambia Telecommunications Company Limited v Felix Musonda and 29 Ors (APPLICATION NO. SP 29 OF 2022) [2023] ZMCA 415 (15 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO. SP 29 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ~l.)'o\.~IC~;:.;.;, ~ APPf~ l 1 ~ FEB 2023 4 · 1·r ZAMBIA TELECOMMUNICATIONS LIMITED APPELLANT AND FELIX MUSONDA & 29 OTHERS RESPONDENTS CORAM: Chashi, Ngulube and Muzenga, JJA ON: 1 st and 15th February 2023 For the App licant: M. Chiteba and P. Chomba, Messrs Mulenga Mundashi Legal Practitioners For the Respondents: M . M a nda, Messrs Man da & Pasi Advocates RULING CHASHI J A, delivered the Ruling of the Court. Cases referred to: 1. Bidvest Food Zambia Limited & 4 Others v CAA Import and Export Limited - SCZ Appeal No. 56 of 2017 2. S. A Airlink (PTY) Limited v Zambia Skyways Limited - CAZ/08/316/2019 3. Natasha Nawa v The People - SCZ Appeal No. 92 of 2019 4 . Savenda Management Services Limited v Stanbic Bank (Z) Limited - SCZ Selected Judgment No. 10 of 2018 -R 2- Legislation referred to,: 1. The Cou.rt of Appeal Act, No. 7 of 2016 2. The· Supre'm.e Court Act, Chapter 25 of the Laws of Zambia Rules referre·d to:' 1. The Court af Appeal Rules, Statutory Instrom.en.t No. 6·5 of 1.0 INTRODUCTION 1.1 On 17th June 2022, we delivered our Judgment in which we upheld the appeal by the now Respondents who were the Appellants in the said Judgment. In allowing the appeal, we ordered that the case be sent back to the Deputy Registrar to assess the following awards: (i) Gratuit,y (unde1r' clause 8.3) - if not paid, exclusive of anowances (ii) Retirement package· (under clause 9 (a) (iv) - to be pail,d, exclusive allowances (iii) Housing allowance - from the date of retirement until full payment of retirement benefits (iv) Repatriation\ - if not paid exclusive of allowances. -R 3- (v) Interest-to be paid at the average short-term deposit rate from date of writ of summons to date of Judgment and thereafter at Bank of Zambia average lending rate up to payment 1.2 Disenchanted with our Judgment, the Applicant has move this Court for leave to appeal to the Supreme Court, pu rsu a nt to Section 13 of The Court of Appeal Act (CAA)1, Order 11 of The Court of Appeal Rules 1 (CAR) as read with Section 24 (b) of The Supreme Court Act2 . The motion is supported by an affid avit and skeleton argum ents. 2.0 ARGUMENTS IN SUPPORT OF THE MOTION 2.1 It is the Applicants contention, relying on Section 13 (3) CAA and the cases of Bidvest Food Zambia Limited & 4 Others v CAA Im port and Export Limited 1 and SA Airlink (PTY) Limited v Zambia Skyways Limited2 , that based on the five intended grounds of appeal appearing at page 107 of the record of the motion, that there are not only reasonable prospects of success in this matter, but there are also compelling reasons for the appeal to be -R 4- heard. Furthermore, that the intended appeal raises points of law of public importance. 2 .2 According to the Applicant, it is imperative for the Supreme Court to confirm whether the High Court Judge when interpreting its initial Judgment of 17th January 2014 was bound to take into account the subsequent decision of the Supreme Court, dated 22nd February 2017. According to the Applicant, the High Court was bound by the decision of the Supreme Court. 2.3 The Applicant's contention is that the Supreme Court decision overturned the High Court Judgment and therefore the Respondents are not entitled to proceed to assess the reliefs awarded under the High Court decision. According to the Applicant, in view of the aforestated, there are compelling reasons why the Apex Court should hear the appeal as it is the only court with the ability to confirm whether its Judgment set aside the High Court Judgment 2.4 It was also argued that it is important for the Supreme Court to confirm whether the issues in dispute between the parties became res judicata following the decision of the Supreme Court. 3.0 RESPON'DENT'S ARGUMENTS IN RESPONSE -R 5- 3.] In opposing the motion, the Respondents filed an affidavit in opposition and skeleton arguments. It was submitted that the intended appeal to the Supreme Court is not motivated by merit but by expense. Our attention was drawn to Section 13 CAA and the Bidvest case as well as the case of Natasha Nawa v The People3 where the Supreme Court stated as foUows: "Our vi.ew is. that the r·ole of the Supreme Court is now informed by the restriction of the appeals it will hear in. the, manner and for reasons that courts. at. the equiva.lent level in jurisdictions such as the United Kingdom do. These restrictions were eloq,uently articulated by Lord 8'ing:ham. in the case of JR v Secretary of State for Trade and Industry, exp,. Eastaway as we have quoted him earlier·,, as well as in the passage of Zuckerman on Civil Pr·ocedure which we have also !lieely quoted earUer on. It is in that spirit that Section l3 of The Court of Appeal Act, restricting access to the Supr·eme Court by referring to the -R 6- apex court only weighty issues in the mos t deserving of cases should be understood." 3.2 It was submitted that throughout the intended grounds of appeal, there is nowhere where the Applicant is inviting the Supreme Court to pronounce itself on a specific point of law of extraordinary nature, be it in contract, public law tort, statute or otherwise. That the Applicant only wants the Supreme Court to reverse the Judgment of the Court of Appeal. Furthermore, that the grounds are not related to a "widespread concern in the body politic" that go beyond the private lives of the parties involved. That in short, the grounds do not raise any point of law of public importance and neither has that been demonstrated. 3.3 As regards compelling reasons, it was submitted that there are none. That both the Supreme Court and this Court have dealt with the question of retirement benefits. In respect to reasonable prospects of success, it was submitted that there are no reasonable prospects. 4.0 OUR DECISION 4.1 We have considered the motion and the arguments by the parties. We note that despite alleging that the intended -R 7- grounds of appeal raise a point oflaw of public importance, no arguments were advanced to support the allegations. It is therefore our view that the Applicant has failed to demonstrate that the intended grounds of appe.al raise a point of law of public importance 4.2 We note that this matter has been in our court system since 2011. In our view, ou r Judgment resolved all the issues which might not have been clear before the Deputy Registrar and that might have arisen from the Ruling on interpretation of the Judgment. On that basis, we do not see any issues which the Supreme Court need to affirm, confirm or make any pronunciation on. We therefore, neither see any reasonable prospect of success nor compelling reason to convince us to grant leave to appeal. 4 .3 One of the tenets of justice demands that there should be finality to litigation. Having dealt with this matter as the Court of Appeal, the road for this case must end here as an appellate court. In emphasizing that we are not m erely a "stepping s tone" in the appellant structure, the Supreme Court in the case of Savenda Management Services -R 8- Limited v Stanbic Bank (Z) L1imited4 stated at paragraph 217 that: "The resources OJf the eo,urts are overstretched and if it were otherwise the doors of justice would be 01pen to busy bodies who,se only aim is to delay the inevitable execution of Judgment." 4.4 In Bidvest case at page 22, they had this to say: "'When con,sidered in context, there,fore, the cr'eation of the Court of Appeal by the Constitution of Zambia fAmendment) Act No. 2 of 2016, was not inte,nded merely to add another layer in the structure o,f courts or the appellate pr,oce,ss. Rather the constitution elevated the Sup,rem,e Co,urt to, a level above an ordinary app,eHate co,urt. Its original role of hearing appeals from, the High Court and other quasi judicial bodies having effectively been assumed by the newly c,reate,d Court of Appeal, means that its ro,le in. the a.pp,ellate structure has necessarily changed.'' -R 9- 4.5 We are of the view that, what the Applicants are seeking is purely for the Supreme Court to have a say in this m atter as an apex court. That is not the role of the Supreme Court in the current appellate structure. 4.6 In the view that we have taken, this motion does not meet the threshold as set under Section 13 CAA and the principles as set out in the Bidvest case. This is not a proper case fo,r granting leave to appeal to the Supreme Court.. We accordingly refuse the application. Costs to the default of agreement 'HI PEAL JUDGE P. C. M. NGULUBE K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE