Sokwani Peter Chilembo v Finance Bank Zambia Plc and Anor (Application No. SP76/2024) (19 November 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Application No. SP76/2024 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SOKWANI PETER CHILEM,.. .. ,..-...... ; ~ 1.-..V 202 APPLICANT AND REGISTRY 2 FINANCE BANK ZAMBIA PLC RESPONDENT ST AFRICAN BANKING CORPORATION ZAMBIA LIMITED 2ND RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA ON: 12th and 19th November 2025 For the Applicant: 1. A. Ngenda (Dr) and N. Chibeleka, Messrs Raso Chambers 2. C. Chungu, Messrs Nsapato & Co 3. M. Nkunika, Messrs ZS Legal Practitioners 4. S. Kalima-Banda (Mrs), Messrs J & M Advocates For the Respondent: N. Simachela (Mrs), Messrs Nchito & Nchito Advocates RULING CHASHI JA, delivered the Ruling of the Court. Cases referred to: 1. Standard Chartered Bank (Z) Ltd v Peter Zulu and 118 Others - SCZ Appeal No. 59 of 1996 -R 22. Bidvest Food Zambia Limited & 4 Others v CAA Import and Export Limited - SCZ Appeal No. 56 of 2017 3. Kekelwa Samuel Kongwa v Meamui Georgina Kongwa - SCZ/08/05/2019 4. Jonathan Van Blerk v Attorney General and 4 Others - SCZ/07//27/2024 5. KV Wheels and Construction Ltd and Others v Development Bank of Zambia - CAZ Appeal No. 123 of 2016 6. Hermanus Philipus Steyn v Giovanni Grecchi Ruscone - Civil Application No. 4 of 2012 7. Zlatan Zlatco Arnautovic v Stanbic Bank Limited - SCZ/08/05/2019 8. Frida Kabaso Phiri v Davies Tembo - SCZ Appeal No. 4 of 9. Zambia National Commercial Bank PLC v Ernestina Sakala & Others - SCZ/8/ 10/2021 10. Ngoma and Others v LCM Company- SCZ/8/20/2019 (2020) ZMSC 165 11. Kitwe City Council v William Ng'uni (2005) ZR, 57 Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 2. The Employment Act, Chapter 268 of the Laws of Zambia 3. The Banking and Financial Services Act No. 7 of 2017 4. The Constitution of Zambia, Chapter l of the Laws of Zambia 5. The Banking and Financial Services Act, Chapter 387 of the Laws of Zambia -R 36. The Employment Code Act No. 3 of 2019 1.0 INTRODUCTION 1.1 On 30th September 2024, we delivered our Judgment in Appeal No. 269 of 2021. We dismissed the appeal for lack of merit. 1.2 It is that Judgment which the Applicant, who was the Appellant, now intends to appeal against to the Supreme Court. 2.0 THE MOTION 2 .1 The application was made by amended notice of motion and is supported by an affidavit, list of authorities and skeleton arguments. 2.2 The application was made pursuant to Section 13 of The Court of Appeal Act1 (CAA). 3.0 ARGUMENTS IN SUPPORT OF THE MOTION 3.1 The Applicant contends that, the intended appeal raises fundamental points of law of public importance, has reasonable and high prospects of success and also reveals other compelling reasons for the appeal to be heard. -R 43.2 According to the Applicant, the intended appeal presents issues of public importance relating to the interpretation of contractual clauses against relevant background information and industry practice. The Applicant asserts that the intended appeal will give an opportunity to the Supreme Court to provide guidance on salary increments based on annual salary review, as well as the nature and scope of custom and trade usage in employment contracts. 3.3 The Applicant further contends that the intended appeal raises a novel question of law regarding the principle of "changed substratum", which remains underdeveloped in this jurisdiction. The Applicant submits that the intended appeal presents an opportunity for the Supreme Court to clarify the application of this principle in the context of workplace reorganisation and restructuring and to provide guidance on what constitutes suitable alternative employment, arguing that salary alone should not determine employment status or overall emoluments. -R 53.4 The Applicant further argues that the Court's finding that the Appellant was offered superior alternative employment solely on the basis of a slightly higher salary amounted to a serious misdirection. It is therefore contended that the intervention of the Supreme Court is necessary to prevent such a misdirection from setting an undesirable precedent. 3.5 The Applicant also contends that the intended appeal raises an important question of law regarding whether an employee serving under a written contract may be deemed to have been terminated by redundancy where their position is effectively abolished or diminished at the employer's instance, particularly in the context of a corporate merger. 3.6 The Applicant contends further that the Court erred in holding that the circumstances of this case did not amount to constructive dismissal when the Applicant elected not to return to work upon being recalled from forced leave pending his termination. It is argued that the Supreme Court's intervention is therefore necessary -R 6to clarify the law on redundancy and constructive dismissal. 3.7 In addition, it was contended that the intended appeal raises an issue of public importance regarding whether a written contract of employment may be transferred between employers without the employee's consent, in light of the repeal of The Employment Act,2 particularly section 35 and the case of Standard Chartered Bank (Z) Ltd v Peter Zulu and 118 Others.1 The Applicant submits that the Court's misinterpretation of section 29(2) of The Banking and Financial Services Act3 materially impacted the outcome and has broader implications, warranting the Supreme Court's guidance to protect employees' rights to consent to such transfers. 3.8 The Applicant further contends that a pronouncement by the Supreme Court on the constitutional right to pension entitlement would have ramifications for employees across both the public and private sectors. That the ex debito justitiae principle applies, and allowing the appeal would advance core values of the -R 7justice system by safeguarding constitutionally guaranteed rights under Article 131(2) of The Constitution of Zambia. 4 3.9 The Applicant has not exhibited the intended notice of appeal and memorandum of appeal but the intended grounds of appeal are contained in the Affidavit in support of amended notice of motion at pages 5 and 6 as follows: (i) The court below erred when it held, against the weight of the evidence and the Respondents' prevailing custom/or established practice, that the Appellant was not entitled to a salary increment in line with the 1st Respondent's applicable terms and conditions of employment; (ii) The Court below misdirected itself as to the nature of the Appellant's employment with the 1st Respondent when it failed to give due weight and/or greater content to the changed substratum of his role and responsibilities having been in charge of the 1st Respondent's legal department for -R 8nearly 5 years leading up to acquisition and/or takeover of the 1st Respondent by the 2nd Respondent, and accordingly any offer of alternative employment had to be suitable taking into account the Appellant's previous position and proper status as the 1st Respondent's principal legal officer; (iii) The court below erred in holding that 'the Appellant cannot assert a claim of redundancy against the 1st Respondent' or claim constructive dismissal because there was no substantial variation to the Appellant's employment despite the Appellant's position being effectively abolished and he was essentially consigned to a much lesser role with the 1st Respondent pending the supposed offer of suitable alternative employment with the 2nd Respondent; (iv) The court below misdirected itself when it held that by virtue of s 29(2) Banking and Financial Services Act (No. 7 of 2017), 'the restructuring of the 1st Respondent did not -R 9necessitate any workforce reductions or declarations of redundancy' despite the same resulting in material adverse changes to the Appellant's employment, following 'the proposed merger' of the 1st and 2nd Respondents, when the Appellant had a statutory right not to have his employment transferred without his consent; (v) The court below failed in its duty to properly adjudicate all issues in dispute between the parties, including the claim for pension payment, compensation or gratuity as enshrined in Article 189(2) of The Constitution of Zambia (as amended by Act No. 2 of 2016), when it dismissed the Appellant's fifth ground of appeal off hand. 3.10 The Applicant drew our attention to section 13 (1) and (3) CAA and Article 131 (2) of The Constitution of Zambia.4 Reference was also made to the case of Bidvest Food Zambia Limited & 4 Others v CAA Import and Export Limited,2 in which the Supreme Court emphasised that, when considering an -R 10application for leave, this Court performs a gatekeeping function to ensure that only deserving matters proceed to the Supreme Court. The Court further emphasised that leave may be granted only on grounds that satisfy the criteria set out under section 13(3) CAA. 3.11 The Applicant also relied on several authorities, including Kekelwa Samuel Kongwa v Meamui Georgina Kongwa3 and Jonathan Van Blerk v Attorney General and 4 Others. 4 Based on these authorities, the Applicant submits that the intended grounds of appeal raise points of law of public importance, that the intended appeal enjoys not reasonable but realistic prospects of success and that other compelling reasons exist for the Supreme Court's further intervention, as contemplated under section 13(3) CAA. 4.0 ARGUMENTS OPPOSING THE MOTION 4.1 In opposing the application, the Respondent filed an affidavit in opposition, list of authorities and skeleton arguments. The Respondent contended that the intended grounds of appeal do not raise any points of -R 11law of public importance, that the intended appeal has no prospects of success and that the Applicant has failed to demonstrate any compelling reason to warrant the grant of leave. 4.2 The Respondent argued that the five grounds set out in the draft memorandum of appeal do not meet the criteria under section 13(3) CAA. Reliance was placed on KV Wheels and Construction Ltd and Others v Development Bank of Zambia5 and argued that employment contracts are governed by the principle of freedom of contract, meaning that clear and unambiguous contractual terms agreed between parties must be enforced as written. According to the Respondent, this principle is longstanding and well settled and therefore the issues raised are neither novel nor require further scrutiny by the Supreme Court. 4.3 It was further contended that all five intended grounds relate to findings of fact and that an appeal founded on contested findings of fact does not amount to raising a point of law for purposes of section 13(3) CAA as reaffirmed in the KV Wheels case. -R 124.4 The Respondent also submitted that a matter of public importance is one that must affect a wider audience, not merely the parties to the dispute. In support of this, reference was made to Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone,6 a Kenyan authority which held that the issue must transcend the interests of the parties and involve uncertain points of law of wider significance. Additional support was drawn from this Court's guidance in the KV Wheels case, where we stressed the requirement that the issue must demonstrate broader public importance. ( 4.5 The Respondent further referred to the Kongwa case and Zlatan Zlatco Arnautovic v Stanbic Bank Limited7 where the Supreme Court reiterated that a point of law of public importance must extend beyond private rights and bear implications of wider relevance. 4.6 The Respondent submitted that the question whether the Applicant was offered suitable alternative employment or was constructively dismissed is neither novel nor unsettled, as the concepts of redundancy and alternative employment have been adjudicated upon -R 13previously, including the case of Frida Kabaso Phiri v Davies Tembo. 8 It was further argued that the issues raised are purely factual and relate to the Applicant's personal employment contract and circumstances, and therefore fall short of the threshold of public importance. 4.7 Regarding the requirement for "other compelling reasons," the Respondent relied on Zambia National Commercial Bank PLC v Ernestina Sakala & Other, 9 and Ngoma and Others v LCM Company,10 submitting that the Applicant has not demonstrated any compelling reason to justify the grant of leave. The Respondent argued that mere dissatisfaction with the findings of fact is insufficient to invoke the Court's discretion. 4.8 In conclusion, the Respondent contended that the Applicant has failed to show that the intended appeal raises any point of law of public importance nor shown any issue that is compelling, novel, or uncertain so as to merit further interrogation by the Supreme Court. Accordingly, the Respondent prayed that the motion be dismissed with costs. -R 145.0 THE HEARING 5 .1 At the hearing, the parties relied on their respective affidavits, list of authorities and skeleton arguments which they augmented with brief oral submissions. 5.2 In his oral submissions, the Applicant reiterated the averments contained in the affidavit in support and skeleton arguments. The Applicant maintained that the intended appeal raises issues of wider public importance, namely whether large employers such as the Respondent should be permitted to act with impunity. It argued that the matter extends beyond a mere employee grievance and that the issues raised have not previously been determined by the Supreme Court. 5.3 Regarding the changed substratum, the Applicant submitted that this concept has broad public implications, particularly where employees are assigned additional responsibilities. It was argued that this is a novel issue. 5.4 In response, the Respondent equally reiterated the averments contained in the affidavit in opposition and -R 15its skeleton arguments. It argued that the intended grounds 1 to 3 are purely factual, disclose no points of law, have no prospect of success and do not amount to compelling reasons. 5.5 It further submitted that the proposed grounds 4 and 5 are a misrepresentation of the issues. On ground 4, it argued that the decision was based on the repealed Banking and Financial Services Act5 of 1994 and that judicial notice should be taken that the current Banking and Financial Services Act3 of 2017 only came into force through Statutory !instrument No. 38 of 2018, well after the events giving rise to this case. The Respondent contended that the law cannot apply retrospectively. 5.6 The Respondent also invited the Court to consider the reliefs sought in the court below and those sought on appeal to this Court, arguing that the issues being raised now in the proposed ground 5 did not arise and cannot be the basis for the grant of leave. It maintained that the issues being raised in the intended appeal -R 16relate to settled legal doctrines, present no uncertainty and do not raise any legal questions. 5.7 It was further contended that since both The Banking and Financial Services Acts of 1994 and The Employment Act2 are repealed, there is no public benefit in revisiting them. It was argued that the Applicant is simply dissatisfied with the outcome of the appeal. 5.8 In reply, the Applicant argued that the question of public importance under section 13(3) CAA must be assessed not only against the proposed grounds but in view of the overall character of the intended appeal. It was further submitted that although The Banking and Financial Services Acts 1994 has been repealed, the substance of section 29(2) has been reintroduced in The Banking and Financial Services Act3 of 201 7 and similar provisions in The Employment Act2 now appear in The Employment Code. 6 6.0 ANALYSIS AND DECISION OF THE COURT 6.1 We have considered the motion and the arguments by the parties. The Applicant seeks leave to appeal to the -R 17Supreme Court pursuant to section 13(3) CAA on the the footing that: (l)the intended appeal raises a point of law of public importance; (2)the intended appeal has a reasonable prospect of success. (3)there exist compelling reasons for the Supreme Court's further intervention. 6.2 In our Judgment, which the Applicant intends to impugn, we dealt with three clusters of issues: (i) interpretation of the salary review clause (ii) redundancy and constructive dismissal 1n the context of restructuring and (iii)whether the doctrine of changed substratum applied. 6.3 On the salary review clause, we examined clause 13.3.2 of the 1st Respondent's Terms and Conditions of Service for Management Staff and found that the term "review'' did not, in itself, equate to an automatic salary increment but rather a reassessment of salaries. We found the clause to be clear and unambiguous and therefore excluded the application of the contra -R 18proferentem rule. The Appellant had not proved any entitlement to annual increases. 6.4 On the issue of whether the Appellant was declared redundant, we found that the restructuring fell within section 2 9 (2) of The Banking and Financial Services Act,5 which provides a statutory framework under which rights and obligations may pass upon transfer of regulated business. We held that the restructuring of the 1st Respondent did not necessitate workforce reductions so as to trigger redundancy under clause 32.5 of the Terms and Conditions. 6.5 With respect to the doctrine of changed substratum, we held that the evidence did not disclose any substantial or fundamental alteration of the Appellant's core contractual duties. The Appellant merely assumed additional duties following the departure of a colleague. Moreover, the Appellant declined an offer of alternative employment on improved terms. 6.6 As for constructive dismissal, we reaffirmed, drawing guidance from Kitwe City Council v William Ng'uni, 11 that the Appellant failed to demonstrate any substantial -R 19I variation of the contract or conduct by the employer that could reasonably justify termination. Consequently, the Appellant did not establish any basis for the reliefs sought, and the appeal was dismissed. 6.7 The Applicant now contends that these very findings raise points of law of public importance warranting further scrutiny by the Supreme Court. We are guided by the Supreme Court in Bidvest, where it was emphasised that this Court serves as a gatekeeper and only issues that raise weighty and genuinely important questions of law warrant progression to the Supreme Court. In the Kongwa case, it was emphasised that such questions must transcend the immediate interests of the parties and reflect broader legal implications. 6.8 Further in KV Wheels, the Court clarified that an issue qualifies as a point of law of public importance where it discloses uncertainty in the law or demonstrates a need for authoritative clarification. 6. 9 Applying the above principles, we find that the issues in the intended appeal remain confined to the Appellant's personal contract of employment and the factual -R 20circumstances of the restructuring. They do not expose any uncertainty or ambiguity in the state of the law nor do they implicate any legal principle of wider public significance. The findings which the Applicant seeks to challenge were factual determinations already fully evaluated and resolved in our Judgment. 6.10 The principles governing the interpretation of contracts, redundancy and constructive dismissal are well settled, consistently applied and entrenched 1n the jurisprudence of both this Court and the Supreme Court. None of the issues identified by the Applicant reveal any conflict in authority or lack of clarity requiring intervention by the Supreme Court. Mere dissatisfaction with the application of these established principles to these particular circumstances does not convert them into unsettled questions of law. 6 .11 On the question of compelling reason, we are satisfied that the intended appeal is simply a repackaging of the very issues that were before us. We do not see any new, distinct or jurisprudentially significant questions capable of meeting the compelling reason threshold. -R 21What the Applicant seeks to do is to re-open factual findings and re-litigate issues that this Court has already considered, weighed and determined. As the Supreme Court has consistently held, mere dissatisfaction with factual outcomes cannot justify leave. 6.12 The Applicant also sought to rely on novelty of the "changed substratum" issue. However, the Supreme Court in Bidvest made it clear that novelty, in itself, does not elevate a matter to one of public importance. The Supreme Court stated as follows: "Second, as regards the issue whether every novel point should be viewed as raising a point of law of public importance and thus satisfying the threshold for the grant of leave to appeal, we must state that novelty of a matter does not in itself and of itself alone turn a matter into one that raises a point of law of public importance within the intendment of section l 3(3J(a) of the Act. In Savenda Management Services Limited. v. .. -R 22Stanbic Bank (Z) Limited(B) we held that a novel issue which engaged wider public interest was flt for determination by this court. Indeed, there are many new legal points frequently raised in the Court ofA ppeal which do not necessarily translate into points of law of public importance by their sheer novelty. Undeniably, a completely new point of law may arise in the Court ofA ppeal which may be insignificant and arousing no public curiosity or interest." 6.13 In light of this guidance, we find that the alleged novelty surrounding the concept of "changed substratum" is misplaced. The doctrine is well-understood and was simply inapplicable on the facts before us. As earlier alluded to, the dispute remains rooted in the Appellant's personal circumstances and lacks the broader dimension necessary to warrant the attention of the Supreme Court. 6.14 For these reasons, we are satisfied that issues sought to be raised do not disclose any real prospect of success. -R 23They were exhaustively addressed in our Judgment and the Applicant has not demonstrated the existence of any substantial or uncertain point of law requiring further consideration by the Supreme Court. 6.15 Accordingly, we find that this is not an appropriate case for the grant of leave to appeal. The intended appeal does not satisfy the threshold under section 13 CAA nor the test set out in the Bidvest case. 6.16 Leave to appeal to the Supreme Court is accordingly refused. We shall make no Order as to costs, as the matter emanated from dustrial and Labour J. C SHI COURT OF APPEAL JUDGE P.C.M. NGULUBE A.M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE