Mirriam Banda Zimba vs CFB Medical Center Limited (Application No. SP65/2024) (10 April 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Application No. SP65/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MIRRIAM BANDA ZIMBA AND CFB MEDICAL CENTRE LIMITED RESPONDENT CORAM: Chashi, Makungu and Banda-Bobo, JJA ON: 26th March and 10th April 2025 For the Applicant: B. Mwanza Jnr, Messrs Nsapato & Co. Advocates For the Respondent: L. Phiri and C. Banda-Bwalya (Mrs), Messrs August Hill & Associates RULING CHASHI JA, delivered the Ruling of the Court. Cases refe rred to: 1. Bidvest Food Zambia Limited & 4 Others v CAA Import and Export Limited - SCZ Appeal No. 56 of 2017 2. Kekelwa Samuel Kongwa v Meamui Georgina Kongwa SCZ/08/05/2019 3. ZCCM Investment Holding Plc v Vedanta Resources Holding Limited and Konkola Copper Mines Plc - SCZ Appeal No. 14 of 2021 4. Zambia Electronic Clearing House Limited v James Kalengo - CAZ Appeal No. 259 of 2022 -R 25. North-Western Energy Company Limited v Energy Regulations Board (2011) ZR,513 6. David Evans Kasonde v Zambia Revenue Authority - SCZ Appeal No. 84 of 2015 7. Hermanus Philipus Steyn v Giovanni Grecchi Ruscone -Civ (Appeal No. 4 of 2012) 8. KV Wheels and Construction Limited v Investrust Bank Plc - SCZ/08/29/2021 9. Ndungu Chinyama (t/a Nampundwe Bakery) v Zesco Limited - CAZ Application No. SP1 9 of 2023 Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 1.0 INTRODUCTION 1.1 On 21st August 2024, we delivered our Judgment in Appeal No. 270 of 2022. 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 notice of motion and is supported by an affidavit, list of authorities and skeleton arguments. -R 32.2 The application was made pursuant to Section 13 (1) and (3) 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 1n relation to the concept of legitimate expectation of renewal of contract of employment. That the appeal will avail the Supreme Court an opportunity to pronounce itself on the crucial point of entitlement in situations where an employer gives assurances to an employee of renewal of contract and fails to follow the mandatory procedure set out in the contract. 3.2 According to the Applicant, this would be the first time the Supreme Court will be dealing with the issue and interpretation of legitimate expectation and the factors that have been developed by the High Court and Court of Appeal. 3.3 Further, according to the Applicant, there are two conflicting decisions of the Court of Appeal, that need to be resolved by the apex court. That this will guide both -R4employers and employees and avoid litigation on the same issue. 3.4 That in addition, the intended appeal has reasonable and high prospects of success, as the Court did not consider the evidence relating to the assurances from the Respondent's Board and Chief Executive Officer, as well as the fact that a performance appraisal was the basis for renewal of the contract. 3.5 The Applicant exhibited the intended notice of appeal and memorandum of appeal, at pages 36-37 of the record of motion. 3.6 The intended grounds of appeal are as follows: (i) The court below erred in law and fact, when it failed and neglected to apply the principles relating to legitimate expectation despite the express assurances and her excellent performance; (ii) The Court below erred in law and fact, when it failed to consider that the Respondent breached its obligations to the Appellant as requirement for a performance appraisal -RSwas a mandatory pre-condition and custom prior to renewal of contract of employment; (iii) The court below erred in law and fact when it failed and neglected to consider that the Appellant was similarly circumstanced to other employees, who were subjected to an appraisal before a decision was made to renew their contracts and that the Respondent acted unreasonably and in bad faith; (iv) The court below erred in law and fact when it failed to award the Appellant any damages and her other entitlements in terms of the contracts and the Respondent's conditions of service and applicable policies. 3.7 The Applicant drew our attention to Section 13 (1) and (3) CAA and the case of Bidvest Food Zambia Limited & 4 Others v CAA Import and Export Limited1 The • Applicant submitted that the Supreme Court gave guidance in the Bidvest case, that the intended grounds of appeal should raise weighty issues, that must be on a point of law of public importance. -R 63.8 According to the Applicant, the intended grounds of appeal, clearly indicate points of law of public importance and therefore meets the threshold for determination by the Supreme Court. 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. According to the Respondent, the intended grounds of appeal do not raise any points of law of public importance and all the matters being raised have been addressed before by the Supreme Court. 4.2 The Respondent was not aware of any two-conflicting decisions by the Court of Appeal. That the Supreme Court and the Court of Appeal have provided sufficient guidance on what amounts to legitimate expectation. 4.3 The Respondent contended that the intended appeal does not have any prospects of success, as the court addressed all the Applicant's claims relating to the alleged assurances from the Respondent's Board and the Chief Executive Officer. That the court further held -R 7that a performance appraisal was not the basis for renewal. 4.4 According to the Respondent, the Applicant is merely dissatisfied with the court's decision. The Applicant's proposed notice of appeal and memorandum of appeal neither raise weighty issues nor matters of public importance that should be addressed and determined by the Supreme Court. 4.5 Our attention was drawn to the case of Kekelwa Samuel Kongwa v Meamui Georgina Kongwa2 where , the Supreme Court defined public importance as follows: "For an appeal to satisfy the element of public importance under Section 13 of the Court of Appeal Act, it must raise a legal question with a public or general character rather than one that merely affects the private rights or interests of the parties to the dispute." 4.6 It was submitted that a party that intends to appeal to the Supreme Court on the basis that the matter raises points of law of public importance should demonstrate -R 8that the points of law in question are of a public or general character. The matter should not only affect the private rights of the parties to the dispute but must be of public interest. 4. 7 On the issue of reasonable prospects of success, we were referred to the case of ZCCM Investment Holding Pie v Vedanta Resources Holding Limited and Konkola Copper Mines Plc3 and Counsel submitted that for leave to appeal to be granted, the party intending to appeal should show that the prospect of success is real and not fanciful or fictional. 4.8 According to the Respondent, the Court of Appeal addressed all the issues which were raised by the Applicant. That granting leave to appeal will only lead to repetition and misuse of the Supreme Court's time. 5.0 ARGUMENTS IN REPLY 5.1 In reply, the Applicant filed an affidavit and skeleton arguments. According to the Applicant, the Supreme Court has yet to formally lay out the criteria and parameters for the concept of legitimate expectation of renewal of contracts of employment, the circumstances -R 9in which it arises and how it relates to situations where a performance appraisal is required and in light of different treatment, where employees whose contracts are to be considered for renewal are in similar circumstances. 5.2 The Applicant reiterated that, there are decisions of the Court of Appeal that need to be reconciled with finality in the circumstances. That granting leave to appeal will provide clarity on how damages are to be awarded in circumstances where an employer does not renew the contract of employment, where there is a legitimate expectation. 6.0 THE HEARING 6.1 At the hearing, the parties relied on their respective affidavits, list of authorities and skeleton arguments which they augmented with brief oral submissions. 7.0 OUR ANALYSIS AND DECISION 7.1 We have considered the motion and the arguments by the parties. The Applicant intends to appeal to the Supreme Court on two grounds, namely: -R 10- (l)That the intended appeal raises a point of law of public importance; (2)That the intended appeal has a reasonable prospect of success. 7.2 In our Judgment, which the Applicant intends to impugn, we considered twelve grounds of appeal and formulated two issues for determination as follows: (i) Whether the Appellant proved in the court below that there was a legitimate expectation that her fixed term contract would be renewed; (ii) Whether excellent or good performance can be taken to be legitimate expectation in a fixed term contract. 7. 3 We opined that there was no qualification or precondition for renewal contained in the fixed contract of employment between the Applicant and the Respondent. In our determination of issues, we were guided by the Court of Appeal case of Zambia Electronic Clearing House Limited v James Kalengo4 where we stated that a legitimate expectation , -R 11of renewal can only arise where an employee is given assurance that his contract would be renewed, or the employer conducts itself in such a manner that leads an employee to believe his contract will be renewed. 7. 4 We were in our determination of issues also persuaded and followed the holdings in the Supreme Court case of North-Western Energy Company Limited v Energy Regulations Board5 in respect of the principle to be , considered on legitimate expectation. 7.5 After evaluation of the arguments, and the aforestated cases, we took the view that there was no evidence that the Board made any assurance to the Appellant that it would renew the contract. We reiterated that the Appellant had a fixed term contract, which had no clause for renewal and came to an end by effluxion of time. We were of the view that the circumstances of the case were that the fixed term contract did not create a legitimate expectation of renewal or promise that the contract would be renewed by the Respondent through its Board. -R 127.6 On the issue of whether excellent or good performance, can be taken to be legitimate expectation in a fixed term contract, we made reference to the Supreme Court case of David Evans Kasonde v Zambia Revenue Authority6 and noted that the Applicant in the fixed term contract had no provision for renewal and therefore there was no criteria or consideration for renewal. As a result, we held that even if the Applicant's performance was excellent or satisfactory, there was no obligation on the part of the Respondent to renew the contract. 7. 7 On the issue of being similarly circumstanced to the other employees whose contracts were due to come to an end, and were subjected to a performance appraisal, we mentioned that we had already made a determination that there was no provision for criteria or condition that performance was to be a consideration on renewal of contract. 7.8 Having made a finding that there was no legitimate expectation, and consequently that the non-renewal of the fixed term contract was not wrongful, unfair and -R 13unlawful, no awards could be made 1n favour of the Applicant. 7. 9 From the afore stated, it is evident that all the issues being raised in the intended grounds of appeal were considered. A glean of the said grounds shows that they all relate to findings of fact and no ground raises any point of law of public importance in line with the Kongwa2 case. The grounds also do not raise any weighty issues as guided in the Bidvest case. 7.10 We note that despite alleging that there are two contradictory cases of this Court, the Applicant did not disclose the two cases. 7. 11 In the Kenyan case of Hermanu s Philipus Steyn v Giovanni Grecchi Ruscone7 the Supreme Court of Kenya in amplifying on the meaning of "a matter of general public importance" stated as follows: "Where the matter involves a point of law, the Applicant must demonstrate that there is uncertainty as to the point of law and that it is for the common good that such law should be clarified so as to enable the court -R 14administer that law, not only in the case at hand, but other cases in future." 7.12 Taking into consideration the Kongwa2 and Steyn7 cases, the Supreme Court in the recent case of KV Wheels and Construction Limited v Investrust Bank Pie, 8 opined that the authorities on the point agree that for an appeal to be regarded as one raising a point of law of public importance, it need not necessarily be one that raises a difficult question of law; it must raise an important question of law, that is to say, a question of law that presents uncertainty on the state of the law, requiring authoritative clarification. 7.13 The intended grounds of appeal in our view are raising the same issues for determination, which were before this Court. The issues for determination before us did not raise any important question of law that presented uncertainty on the state of the law, so as to qualify to be a point of law of public importance. This is a clear case of the Applicant trying to have a second bite at the cherry. We have time and again guided that the Court of Appeal is not merely a stepping stone on one's way to -R 15the Supreme Court. In the case of Ndungu Chinyama (t/a Nampundwe Bakery) v Zesco Limited9 we , emphasised the need for finality in litigation, when we made the following statement: "While the hierarchy in the Judiciary exists to afford Litigants to climb up the ladder in pursuit of justice, justice dictates that there should be finality to litigation." 7 .14 In the matter before us, we exhaustively dealt with the issues and we do not see any weighty issue which has arisen out of our Judgment, which requires the attention of the Supreme Court. In the view that we have taken, we do no see any reasonable prospects of success, if the matter was allowed to ascend to the Supreme Court. 7. 15 On the issue of the matter being novel, we are of the view that it is not, as the Supreme Court and this Court have on many occasions dealt with the issue of legitimate expectation. The Supreme Court in the case of KV Wheels and Construction8 in considering , whether every novel point in the sense of being one that -R 16has never been adjudicated upon in this jurisdiction, meets the threshold test of raising a point of law of public importance, referred to the Bidvest case, where they were of the fallowing view: "We must state that novelty of a matter does not in itself alone turn a matter into one that raises a point of law of public importance within the intendment of Section 13 (3) (a) of the Act. Indeed, there are many new legal points frequently raised in the Court of Appeal, which do not necessarily translate into points of law ofp ublic importance by their sheer novelty. Undeniably, a completely new point of law may arise in the Court of Appeal, which may be insignificant and arousing public curiosity or interest." 7.16 As earlier alluded to, the Supreme Court has on numerous occasions dealt with the subject of legitimate expectation in cases such as North-Western Energy Company Limited5 which we relied on. Novelty cannot be a compelling ground herein as it is clear that the -R 17Court of Appeal and the Supreme Court have dealt with this subject matter. 7.17 In the view that we have taken, this is not a proper case for granting leave to appeal to the Supreme Court as the intended appeal does not meet the threshold envisaged under Section 13 CAA and the test set out in the Bidvest case. 7.18 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 ASHI COURT OF APPEAL JUDGE C.K.MAKUNG A.M BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE