Ireen Kabula Musonda v Livestock Services Cooperative Society (APPEAL 165/2023) [2025] ZMCA 166 (19 November 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL 165/2023 BETWEEN: IREEN KABULA MUSONDA AND REGISTRY2 X 50067, APPELLANT LIVESTOCK SERVICES COOPERATIVE SOCIETY RESPONDENT CORAM: KONDOLO, PATEL AND CHEMBE JJA On 13th November 2025 and 19th November 2025 For the Appellant Mr. B. Shantu -Messrs K. Mwale & Co. For the Respondent Mr. J . C. Kalokoni - Messrs Kalokoni & Co. JUDGMENT CHEMBE JA d elivered the J udgm en t of the Court. Cases referred to: 1. Charles Mushitu v Christabel Kaumba SCZ Appeal No 122/ 201 5 2. Sichone v Muwowo (1982) ZR 41 3. Peter Ngandwe v Zambia Oxygen Limited SCZ Judgment No 13 of 1999 4. Sigumbe Keith Mutupo v BP Zambia Limited SCZ Appeal No 59/ 2016 5. Caroline Daka v Zambia National Commercial Bank (2012) ZR 8 6. Mabizela v ZANA CO (no citation provided) 7. Zambia Revenue Authority v Dorothy Mwanza and others (2 010) ZR 181 8. Prisca Kabanshi Chezi V Nkhwazi Primary School SCZ Appeal No 85/ 2010 9. Davies Evans Kasonde v Zambia Revenue Authority SCZ Appeal No 84/2015 10. Dr Richard Mwiinga v Public Pension Fund Board and the Attorney General CAZ Appeal No 1 96/ 201 9. 11. Bwalya Chishimba Kambwili v Great Wall Financial Services Limited CAZ Appeal No 28/ 2021 12. African Banking Corporation Limited v Plinth Technical Works Limited and Others selected Judgments No 28/2015 13. National Milling Company Limited v Angela Chileshe SCZ No 171 / 2015 14. First Quantum Mining Operations Limited v Obby Yendamoh SCZ Appeal No 2016 of 2015 15. Peter Lipite Chishika v First Quantum Ming and Operations SCZ Appeal No 122/2018 16. Victor Chimbala Musonda v ZSIC General Insurance Company Limited Appeal No 1921 2018 1 7. Victoria Daka v Petauke District Council SCZ No 108/ 2011 18. Supabets Sports Betting v Batuke Kalimukwa SCZ Selected Judgement No 27of2019 19. Lubasi Mundia v Sentor Motors Limited (1982) ZR 66 20. William David Carlisle Wise v EF Herivey Limited (1985) ZR 179 2 1. Kariba North Bank Company Limited v Zambia State Insurance Corporation Limited (198 0) ZR 94 22. Care International Zambia v Mis heck Tembo SCZ Appeal No 57I20 16 Legislation referred to: 1. The Employment Code Act No 3 of 2019 J2 Other works ref erred to: 1. Winnie Sitlwle Mwenda and Chanda Chungu A Comprehensive Guide to Employment Law in Zambia (LexisNexis, Johannesbu rg, 2025) Second Edition 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of Bah- Matandala J dated 4 th August 2022 in which she dismissed the Appellant's claim for damages for unfair and unlawful dismissal. 2.0 BACKGROUND 2.1 The Appellant, who was the Plaintiff in the Court below was employed by the Respondent as Finance Manager on a two year contract from 23 rd May 2018 . When the contract expired in 2020, she was not offered a new contract. 2.2 Before the contract expired , the Appellant had raised concerns regarding the operations of the Respondent and the toxic working environment created by the General Manager. The concerns were not addressed by the Board of Directors. J3 2.3 Following the refusal or non-renewal of her contract, the Appellant commenced an action aga inst the Respondent in the Court below in which she claimed the following reliefs; i. Damages for unfair dismissal ii. Alternatively damages for wrongful dismissal iii. Alternatively damages for breach of contract iv. Damages for breach of contract v. Damages for embarrassment and mental anguish caused by the wrongful dismissal vi. Interest on all the sums due vii. Costs viii. Any other relief the Court may deem fit. 2.4 In the accompanying statement of claim, the Appellant a verred that the General Manager made sexist remarks to her colleagues about her and that he withdrew some of her duties and functions in a bid to fix her. The Appellant stated tha t the non-renewal of contract was grounded in the sexist trea tment by the Respondent's General Manager who unila terally m a de the decision. 2 .5 In its defence, the Respondent maintained tha t contract of employment had terminated by effluxion of time and did not J4 have a renewal clause. It denied that the Appellant had been dismissed at all as the contract simply expired. 2.6 The matter was heard at trial where both sides adduced evidence from their witness. 3.0 DECISION OF THE LOWER COURT 3 .1 After analyzing the evidence and the arguments before it, the trial Court found that the Appellant had failed to prove any of her claims. In relation to the claim for wrongful dismissal, the Court below held that the employment contract was for a fixed term and it terminated naturally when the period ended. 3.2 With regard to the claim for unfair dismissal, the Court below found that there was no evidence that the Appellant was dismissed and therefore there was no basis to determine whether the dismissal was unfair. On the claim for constructive dismissal the Court below reasoned that the claim was not available to the Appellant as she did not resign as a result of the conduct of the Respondent. 3 . 3 The learned Judge also refused the claim for damages for breach of contract on the ground that the Respondent's General JS ■ Manager had reasonable cause to withdraw some of her functions when she went on leave. She dismissed the argument that the Appellant was declared redundant when some of her functions were withdrawn as it was not pleaded. 3.4 Regarding the claim for damages for embarrassment and mental stress, the Court below held the view that the contract terminated natura lly and there was no dismissal. She dismissed the entire action with costs. 4.0 THE APPEAL 4.1 Aggrieved with the decision of the Court below, the Appellant launched this appeal fronting the following grounds; 1) The High Court misdirected itself both in law and in fact when it held that the termination of the contract of employment was not wrongful against the weight of evidence on record. 2) The High Court misdirected itself in law and fact when it held that the Appellant was not unfairly dismissed against the weight of evidence on record. 3) The High Court misdirected itself in both law and fact when it held that the claim for redundancy was not pleaded and as such not considered by the Court. J6 . 5 .0 THE APPELLANT'S HEADS OF ARGUMENT 5.1 The Appellant filed heads of argument in support of the appeal on 1st June 2023. All the grounds of appeal were argued together. It was submitted that the Respondent terminated the Appellant's contract of employment unfairly when it breached the contract by withdrawing various functions from her. We were referred to the case of Cha rles Mushitu v Chris t abel Kaumba1 (no citation provided) where it was held that a unilateral alteration of the conditions of services which negatively impacts on employee amount to a breach and wrongful termination. 5 .2 The Appellant contended that the Respondent's decision to not offer her a new contract was motivated by factors other than performance or conduct. The Appellant charged that the Court below erred when it failed to properly assess whether the Respondent had proved that the non-renewal of contract was lawful. We were urged to interfere with the findings of the Court below. The case of Sichone v Muwowo2 was cited in that regard. J7 5.3 A further argument by the Appellant was that varying the conditions of services without her consent meant she could be deemed to have been declared redundant. We were referred to the cases of Peter Ngandwe Zambia Oxygen Limited3 and Sigumbe Keith Mutupo v BP Zambia Limited4 . The Ap pellant maintained t h at she was declared redundant when her functions were taken over by others. 5.4 With regard to the finding t h at redu ndancy was not pleaded, reference was made to the case of Caroline Daka v Zambia National Commercial Bank5 which distinguished unfair dis missal from wrongful dismissal. It was argued that the Respondent acted contrary to section 55 (1) (c) of the Em p loyment Code. It was s ubmitted that the Court below was bound to consider any issues that arose from the evidence presented at trial as decided in the case of Mabizela v ZANAC06 (no citation p r ovided). We were u rged to find that the evidence disclosed that the Appellant's employment was terminated due to redundancy and set aside the findings of the Court below. J8 6.0 RESPONDENT' S ARGUMENTS 6.1 In response, the Respondent filed its h eads of a rgument on 9 ~ August 2023, with regard to the 1st ground of appeal. In arguing that the Appellants contract of employment was not wrongfully terminated, the Respondent relied on the case s of Zambia Revenue Authority v Dorothy Mwanza and others7, Prisca Kabanshi Chezi V Nkhwazi Primary School8 , Davies Evans Kasonde v Zambia Revenue Authority9 and Dr Richard Mwiinga v Public Pension Fund Board and the Attorney General1°. In the above cases, it was held that the renewal of a fixed term contract was at the employer's discretion and the employer cannot be compelled to reemploy the employee at the end of the contract. 6.2 The Respondent submitted that the evidence adduced showed that the Appellant served on a two year fixed contract which did not have a renewal clause. It was argued that the Appellant left employment after the expiration of the contract. A further argument was that the Appellant knew when she signed the contract that it was for a fixed term and the duty of the Court was to enforce the will of the parties. Our attention was drawn J9 to the cases of Bwalya Chishimba Kambwili v Great Wall Financial Services Limited11 , African Banking Corporation Limited v Plinth Technical Works Limited and Others12 and National Milling Company Limited v Angela Chileshe13 in which the freedom to contract was reaffirmed. 6 .3 On whether the evidence revealed that the termination of con tract a m ou nted to wrongful d ismissa l, the Respondent submitted that wrongful dismissal has been d efined 1n numerous cases as ans1ng out a breach of contract and 1s primarily concerned with the procedure adopted in effecting the dismissal. Reference was made to the cases of First Quantum Mining Operations Limited v Obby Yendamoh14, Peter Lipite Chishika v First Quantum Mining and Operations1 5 , Victor Chimbala Musonda v ZSIC General Insurance Company Limited16 and Victoria Daka v Petauke District Council1 7 . 6.4 The Respondent supported the findings on the Court below on whether the Appellant was wrongfully dismissed when it stated the contract terminated wh en it came to the end of its duration. JlO 6.5 With respect to the 2 nd and 3 rd grounds of appeal, the Respondent submitted that the Appellant was not unfairly dismissed. Relying on the case of Supabets Sports Betting v Batuke Kalimukwa18, it was submitted unfair dismissal was concerned with the merits or the reason for the dismissal and was a creature of statute. 6.6 It was submitted that the evidence adduced in support of this claim was that the Respondents General Manager had withdrawn some of the functions of the Appellant . . However, the Court below had found that it was sensible for the Manager to withdraw some of the Appellant's functions whilst she was· on leave and thereafter preparing for the end of her contract. The Respondent maintained that its conduct did not amount to unfair dismissal. 6 .7 Regarding the claim for redundancy, the Respondent's position was that the Court below was correct not to consider it as it was not pleaded. The cases of Christopher Lubasi Mu ndia v Sentor Motors Limited1 9 , William David Carlisle Wise v EF Hervey Limited2 0 and Kariba North Bank Company Limited Jll v Zambia State Insurance Corporation Limi ted21 were cited on the function of pleadings. 6.8 We were urged to dismiss the appeal with costs. 7.0 HEARING 7 .1 At the hearing, Counsel for the Appellant relied on the written heads of argument which he briefly augmented with oral submissions. He maintained that the unilateral alteration of the Appellant's conditions of services amounted to a breach of contract and wrongful dismissal. He argued that the m anner in which her functions were taken had a negative impact on her. 7 .2 In response Counsel for the Respondent also relied on the written heads of argument. He submitted that the trial court m ade a findin g that the withdrawal of functions was j u stified as the Appellant had proceeded on leave for 7 weeks and her contract was coming to an end; the withdrawal of some functions was to facilitate continuity. We were urged t o dismiss th e appeal. J12 8.0 CONSIDERATION OF APPEAL AND DECISION 8.1 We have anxiously considered the record of appeal together with the arguments by both sides. The issue raised in this appeal is whether the failure to renew the Appellant's contract of employment when it expired amounted to wrongful dismissal, unfair dismissal or indeed redundancy . The Court below surmised that the contract of employment terminated naturally when it came to an end. 8 .2 The undisputed facts , as revealed by the record of appeal, are that th e Appellant was em ployed by the Respondent as a Finance Manager on a two year fixed contra ct dated 23 rd May 2018. In 2019 she was inform ed that her contract would not be renewed. When her contract expired in May 2020, it was not renewed . 8.3 There was evidence that prior to the expiry of her contract the Respondent's General Manager withdrew some of her functions . The Appellant raised concerned about the concentration of functions in the General Manager. The Board of Directors did not support her concerns. She also alleged that the General J13 Manager had made sexist rem arks about her to h er colleagues. When her contract was not renewed upon expiry, the Appellant concluded that it was due to the concerns that she had raised . 8.4 The Appellant's a rgu ment is that on th e evidence adduced, the Court below s hou ld have foun d that the failure or refusal to renew the contract was unfair and u nreasonable. She appears to argue that by withdrawing some of her functions unilaterally, the Resp ondent breach ed the contract of employment resulting in wrongful termination or dismissal. 8.5 In the case of Care International Zambia v Misheck Tembo22 , the Supreme Court defined wrongful dismissal as follows: "wrongful dismissal essentially is dismissal which is contrary to the contract and its roots be in common law. The remedy is usually limited to payment for the notice period .. . (in contract) unfair dismissal is therefore a much more substantial right for the employee and the consequences for the employer of dismissing unfairly are much more severe than those which attend to wrongful dismissal. " 8.6 The record of appeal shows that the Appellant was not dismissed. She worked until her contract period expired. The J14 Appellant continued to work even a fter her concer ns about the toxic working environment had been dismissed by the board. It is therefore surprising that the Appellant claims that she was wrongfully dismissed or that her contract was wrongfully terminated. 8.7 As correctly submitted by the Respondent, there is a plethora of authorities where the supreme Court had pronounced itself on the rights of the parties to a fixed term employment contract. In the case of Prisca Kabanshi Chezi v Nkhwazi Primary School (supra), the Supreme Court held that an employer was not compelled to offer an employee a new contract after the initial contract had run its course. In the subsequent case of Davies Evans Kasonde v Zambia Revenue Authority (supra ), the Supreme Cour t went further and stated that renewal of contract was at the discretion of employer. 8 .8 This Court has consistently followed the Supreme Court's reasoning in the above cases. In the case of Richard Mwiinga v Public Pension Fund Board and the Attorney General (supra) we stated as follows in upholding the decision of the High Court: JlS "The Appellant's contract had not b e en terminated. It ran its full life." 8.9 We see no basis for interfering with the findings of the Court below that the Appellant's contract terminated by effluxion of time. The 1st ground of appeal therefore fails. 8.10 Regarding the 2 nd ground of appeal in which the Appellant challenges the finding that she was not unfairly dismissed, our view is that the evidence adduced did not support a finding of unfair dismissal. In the Care international Zambia case (supra) the Supreme Court stated that unfair dismissal wa s dismissal contrary to statute. The Appellant failed to demonstrate that she was dismissed contrary to statutory provisions. She failed to even substantiate the claim that sexist remarks were made against her. In our view the Court below was correct in its holding in that regard . 8.11 In the 3 rd ground of appeal, the Appellant charges that the Court below should have considered her claim for redundancy despite the fact that it was not pleaded because there was evidence that the Respondent varied her conditions of service. Section 55 (1) of the Employment Code Act outlines the conditions under J16 which an employee can be deemed to have been declared redundant as follows: "An employer is considered to have terminated a contract of employment of an employee by reason of redundancy if the termination is wholly or in part due to:- a) The employer ceasing or intendi ng t o carry on the business by virtue of which the employees were engaged; b) The business ceasing or diminishing or expected ceasing or diminishing the requirement for employees to carry out work of a particular kind in the place where the employee were engage; or c) An adverse alteration of the employee's conditions of service which the employee has not consented to." 8.12 According to the learned authorities of a Comprehensive Guide to Employment law in Zambia, redundancy occurs when a n employer h a s ceased its operations in its entirety or at the place where the employee operates or an employee's position or need for their service have ceased or diminished. 8. 13 Redundancy can therefore be said to be a type of dismissal where an employee's job ceases to exist due to r estructuring or closure of the undertaking. In the present case there was no J17 evidence that the Appellant's job had ceased to exist or that the need for her services had diminished. 8 . 14 The Appellant relies of the fact that certain functions were withdrawn without her consent. We note that the functions that were removed were payroll and audit'. The Respondent explained the circumstances that warranted the withdrawal of those functions. The court below accepted the explanation and found that it was done for the sake of allowing the functions to run when the Appellant was on leave and after her contract expired. 8.15 According to section 55 (1) (c), the unilateral alteration of conditions of service has to be adverse. Counsel for the Appellant was at pains to explain the adverse impact of the withdrawal of some functions on the Appellant. The cases of Peter Ngandwe v Zambi a Oxygen Limited and another (supra) and Sigumbe Keita Mutupo v BP Zambia Li mited (supra) are not helpful to the Appellant's case as they related to variation of terminal benefits. In our view, the functions performed by an employment do not constitute basic conditions of service. The basic conditions of service in our view largely J18 relate to the privileges, rights and benefits that accrue to the employee. We are of the view that the Appellant's reasoning in this regard is flawed. We uphold the lower Court's findings that the withdrawal of the Appellant's functions was reasonable in the circumstances. 8 . 16 Further, it is trite law that parties are bound by their pleadings. We can do no more than to agree with the holding of the Court below that it could not consider the claim for redundancy as it was not pleaded. The third ground of appeal accordingly fails. 8.17 We noted with dismay that the Appellant appears not to have been certain about the legal wrong that had been occasioned against her. According to the statement of claim at page 40 of the record, the Appellant sought damages for unfair dismissal. In the alternative, she sought damages for wrongful dismissal or constructive dismissal. She also sought damages for breach of contract. The above clearly shows that the Appellant was merely fishing and hoped that one of the claims would stick. We are fortified in our view by the grounds of appeal in which some claims were abandoned and replaced with a claim for redundancy . We wish to caution litigants that they risk having J19 an adverse award of costs on a higher scale for wasting judicial time. 9.0 CONCLUSION 9 . 1 All the grounds of appeal having failed, the appeal is dismissed in its entirely. We award costs to the Respondent, same to be taxed in default of agreement. ::-:--,. ~ ••••.•..•................••..•....•.••••••..•.. M. M. KONDOLO SC COURT OF APPEAL JUDGE A. N. PATEL SC COURT OF APPEAL JUDGE ...•......••.• ~ ............ . Y. CHEMBE COURT OF APPEAL JUDGE J20