Mwachilenga v Alistair Logistics (Z) Ltd (SCZ 8 11 of 2021) (23 February 2022) – ZambiaLII

R 1 IN THE SUPREME COURT OF ZAMBIA SCZ/8/11/2021 HOLDEN AT LUSAKA (Civil Jurisdiction) judiciary 4 BETWEEN: DEAN MWACHILENGA APPLICANT AND ALISTAIR LOGISTICS (Z) LIMITED RESPONDENT Coram: E. M. Hamaundu, JS For the applicant : Mr G. Tembo, Messrs James & Doris Legal Practitioners For the respondent: Mr M. Nyirenda, Messrs Kafunda & Co RULING Cases referred to: 1. Bidvest Food Zambia Limited & Others v CAA Import and Export Limited, Appeal No.56/2017 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 175 3. Yumba and 22 others v Luanshya Municipal Council, Appeal No.5/2015 R2 The applicant seeks leave from a single judge of this court to appeal to the court against the judgment of the Court of Appeal dated 20th November, 2020. The brief facts of this matter are these: the applicant took his former employer, the respondent, to the Industrial Relations Court for wrongful dismissal. That court found that the applicant was indeed dismissed from employment wrongfully. The court then awarded the applicant 36 months’ salary as damages. The respondent appealed to the Court of Appeal against both the finding that the applicant was wrongfully dismissed and the quantum of damages. The Court of Appeal upheld the finding that the appellant was wrongfully dismissed, but interfered with the damages and reduced the quantum to 3 months’ salary. The applicant wishes to come to this court on five grounds of appeal which are couched as follows: “GROUND ONE (i) The Court of Appeal erred in law when it failed to rule on the effect of the failure by the Appellant (Now Respondent) to comply with Order X Rule 9, Sub Rules 8 and 10 of the Court of Appeal Rules S.L No. 65 of 2016 which requires that a list of Authorities be filed together with heads of arguments. R3 GROUND TWO (ii) The Court of Appeal erred in law when it held that failure to comply with Order X, Rule 9(2) of the Court of Appeal Rules, Statutory Instrument No. 65 is not fatal when there was binding judicial precedent from the Supreme Court in the case of Yumba and 22 others v Luanshya Municipal Council (Appeal No. 0005/2015) [2017] ZMSC 73 which establishes that such a failure is fatal. GROUND THREE (iii) The Court of Appeal erred in law and in fact when it gave a contradictory judgment by upholding ground three which attacked liability and proceeded to award damages to the Respondent ( now applicant) under ground four. GROUND FOUR (iv) The Court of Appeal erred in law and in fact when it interfered with the award of damages made by the Industrial Relations Division of the High Court without stating any wrong principal applied by the High Court judge in his award and without stating the particular reasons that led to its finding that the award of 36 months was inordinately high and greeted them with a sense of shock; GROUND FIVE (v) The Court of Appeal erred in law and in fact when it disregarded the basis upon which the trial court awarded R4 36 months salary as damages for loss of employment without any reasons and interfered with the award solely on the basis that the contract was terminable by giving one month’s notice” It is the applicant’s contention that, on those proposed grounds, the intended appeal satisfies three of the criteria set out in Section 13 of the Court of Appeal Act; and that these are: (i) That the appeal raises a point of law of public importance: (ii) That the intended appeal has reasonable prospects of success: and (iii) That there is some other compelling reason for the appeal to be heard. It was held in the case of Bidvest Food Zambia Limited & Others v CAA Import and Export Limited11’ that for a matter to be worthy of coming to the Supreme Court under Section 13 of the Court of Appeal Act the issues to be decided upon must transcend the immediate private interests of the parties to the matter, and be of relevance to the public at large. The Court said: “The reason for restricting the granting of leave to appeal to the limited circumstances set out in Section 13 is founded on the same basis as the Supreme Court of England and Wales R5 employs to restrict or limit appeals to that court. In that jurisdiction, Lord Bingham explained in R v Secretary of State for Trade and Industry, Exp. Eastway, in relation to the House of Lords (but which position applies as much to the Supreme Court) that: 'the House [of Lords] must necessarily concentrate its attention on a relatively small number of cases recognized as raising legal questions of general importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist.’ ’’(underlining provided for emphasis) It is the applicant’s argument generally that the proposed grounds of appeal demonstrate that his intended appeal has reasonable prospects of success. To support that proposition, it is the applicant’s submission in the proposed first ground that, by ignoring to address the respondent’s failure to file a list of authorities and skeleton arguments, the Court of Appeal failed to adjudicate on all issues that were in dispute, contrary to this court’s guidance in cases such as Wilson Masauso Zulu v Avondale Housing Project Limited(2). In the second proposed ground, the applicant submits that the Court of Appeal failed to adopt a decision of this Court in the case of Yumba and 22 others v Luanshya Municipal Council(3) when it R6 refused to dismiss the respondents appeal on account of poorly drafted grounds. He argues that that, in itself, is a public policy issue regarding judicial precedent, and the hierarchy of our courts. In the proposed third and fourth grounds of appeal, the applicant submits that it was contradictory of the Court of Appeal to find merit in the third ground of appeal, which was attacking the liability that the trial court had attached to the employer, and still go ahead to deal with the fourth ground and uphold the award of damages under that ground. The applicant argues that it is against public policy for the court to give contradictory judgments. As for the proposed fifth ground of appeal, the applicant submits that it raises an important question of concern to all employees as to whether employees whose contracts are capable of being terminated by one month’s salary in lieu of notice cannot be entitled to an award of 36 months’ salary as damages, where the termination of employment is found to be wrongful. In response, the respondent has argued that this appeal cannot raise a point of law of public importance because, being a matter concerning an employment contract, it affects the rights of the parties herein only. R7 On the question whether or not the intended appeal has reasonable prospects of success, the respondent submits that even assuming that the Court of Appeal may have missed a point or made a mistake, in reversing the award of the High Court, it is not the role of the Supreme Court to correct each and every error. As to whether or not there may be some other compelling reason for the intended appeal to be heard, the respondent submits that a glance at the grounds of appeal show that there is nothing in them that would be said to provide such compelling reasons. Those are the parties’ respective positions. In this application, the first two grounds of appeal are with regard to a preliminary issue that was before the court below with regard to procedure. As the passage that I have quoted above says, the role of this court is to deal with substantive issues of general importance, and not to address interlocutory processes. If indeed the Court of Appeal made an error concerning interlocutory procedure, it is presumed that it will correct that error itself in due course. In the third ground, the applicant claims that the Court of Appeal contradicted itself when dealing with third and fourth R8 grounds of appeal that were argued before it. Again, this is not an issue to be addressed by the Supreme Court unless its effect were to transcend the parties and affect, perhaps, any future litigation; a position which the applicant has not demonstrated. In any case, it is clear that the Court of Appeal dealt with this appeal mainly on two issues; (i) whether the applicant was wrongfully dismissed, and; (ii) whether the award of 36 months’ salary was the proper measure of damages. It is clear that the first three grounds of appeal belonged to the first issue, while the fourth ground belonged to the second. The Court of Appeal in its judgment attached the third and fourth grounds to the second issue; a question on which the court found in favour of the respondent, who was the appellant then: Hence what seems to be a contradiction. However, this is an issue on which the applicant could have sought clarification from the Court of Appeal by an application for interpretation. The fourth and fifth grounds are with regards to the applicant’s displeasure with the Court of Appeal’s reduction of the damages from 36 months’ salary to 3 months. The applicant argues that the Court of Appeal did not reveal its mind as to what it is that R9 made an award of 36 month’s salary wrong in principal, or excessive. In my view, the 3 months’ salary having been awarded on the basis of the notice period, the damages accord well with the wellknown principle that the normal measure of damages in employment cases is the salary covering the period of notice that was required to properly terminate the contract. Even if it were to be said that the reduction in this particular case was wrong, the Court of Appeal, in doing so, did not apply a principle of law that will ultimately affect other cases in future, which would justify the intervention of the Supreme Court. In the premises, I find that none of the proposed grounds of appeal raises any issue of general public importance or raises the appeal’s prospects of success. The application therefore has no merit. It is dismissed, with costs to the respondents. Dated the....... ^..^^....day of .....2022 E. M. Hamaundu SUPREME COURT JUDGE