Jonas Musonda v Konkola Copper Mines (In liquidation) (Appeal No.45 of 2022) [2025] ZMCA 125 (25 September 2025)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.45 of 2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JONAS MUSONDA CAZ/08/339/2022 , _"_,., ___ ,, ~ ~- ~~~ : ; ; : - ~., ........ ,: ........ or-,,,.._, .... ·~ .. ,,,.,..~ \ C\)••"' APPELLANT AND l. ,.. _,, ··111 '>r,~,,·,, · ,.· .. .! I ,· ' I. . . KONKOLA COPPER MINES (IN LIQUIDATION) RESPONDENT -J • . .. - -·-- " Coram: Kondolo SC, Majula and Banda- Bobo, JJA On 4 th July, 2024 and 25th September, 2025. For the Appellant: Mr, D,E, Ndhlovu of Kalulushi Chambers For the Respondents: Mr: T. Chibeleka & Ms. K. Zulu both of ECB Legal Practitioners RULING MAJULA JA, delivered the Ruling of the Court. Cases referred to: 1. 2. 3. Moonjelly Ouseph Joseph u RDS Investments Ltd (2004) Z,R, 68 Bidvest Food Zambia Limited & Others u CAA Import and Export Limited Appeal No, 56 of 2017 R v Secretary of State for Trade and Industry, exparte Eastaway (2000}, 1 ALLER 27, R2 4 . 5. Kekelwa Samuel Kongwa v Meamui Georgina Kongwa SCZ/ 8/05/2019 Zambia Consolidated Copper Mines v James Matale (SCZ Selected Judgment No 9 of 1996) Legislation referred to: l. 2 . The Court of Appeal Act No. 7 of 2016 The Constitution of Zambia (Amendment) Act No. 2 of 2016 1.0 INTRODUCTION 1.1 This is the ruling of this Court on an application by the Appellant, Mr. Jonas Musonda, who seeks leave to appeal to the Supreme Court against the decision of this Court delivered on 23rd March 2024 in Appeal No. 45 of 2022. 1.2 The application is made pursuant to Section 13 of the Court of Appeal Act, No. 7 of 2016. The Appellant contends that the judgment raises issues of law and fact which ought to be determined by the Supreme Court, while the Respondent insists that the application is devoid of merit, raises no point of law of public importance, and is merely a re-litigation of matters already determined by this Court. 1.3 The task before this Court is to assess whether the Appellant has satisfied the statutory criteria, namely that the proposed appeal (a) raises a point of law of public importance, (b) has R3 reasonable prospects of success, or (c) presents some other compelling reason for it to be heard by the Supreme Court. 2.0 APPELLANT'S CASE 2.1 In his affidavit sworn on 25th March 2024, the Appellant expressed dissatisfaction with the judgment of this Court and signified his intention to pursue a further appeal. He averred that certain critical documents in the record of appeal, particularly at pages 182 and 187, were overlooked in the Court's determination. These documents, he explained, comprised his own Record of Service and that of a witness, both of which, in his view, demonstrated that he continuously held the position of Acting SOU Manager between 2014 and 2019. He further maintained that the position was graded at salary scale KCM 6, a higher scale than the KCM 5 upon which his pension benefits were computed. 2.2 The Appellant went on to state that, notwithstanding his extended period of acting service, he was never confirmed in the higher post, which ultimately deprived him of the opportunity to retire on the enhanced salary scale and thereby access increased pension benefits. He argued that the Respondent's refusal to remunerate him in accordance with the responsibilities he carried out as Acting SOU Manager amounted to a denial of his rights and constituted unfair treatment. 2.3 He further complained that the order of costs made against him compounded this unfairness, contending that he was R4 effectively punished twice, first by being underpaid in respect of his pension, and secondly by having to refund part of his limited benefits through the costs order. 2.4 On these grounds, the Appellant urged that his case raised arguable and weighty questions deserving the scrutiny of the Supreme Court, and prayed that leave to appeal be granted. 2.5 In the skeleton arguments filed, Mr Ndhlovu, learned Counsel for the Appellant, advanced the position that the issues raised transcend the peculiarities of his case and touch on broader principles of employment law, particularly the treatment of long-term acting appointments, the computation of retirement benefits, and the fairness of costs orders. 2.6 Counsel argued that the case raised issues of public importance relating to pension entitlements, thus falling within section 13(1) and (3) of the Court of Appeal Act. It was submitted that the Appellant's five-year service as Acting SOU Manager without confirmation amounted to casualisation, prohibited by section 12A(2) of the Employment (Amendment) Act and section 7 of the Employment Code Act. 2.7 Relying on Article 187(1) and Article 266 of the Constitution, Counsel contended that the Appellant was entitled to pension benefits at the higher grade, a matter affecting present and future retirees and therefore of public interest, as explained in Wharton's and Stroud· s Judicial Dictionary. RS 2.8 On remuneration, reliance was placed on Moonjelly Ouseph Joseph v RDS Investments Ltd,1 to argue that the Appellant was entitled to the salary and allowances of SOU Manager throughout his service. Counsel maintained that the Court of Appeal erred by ignoring documentary and oral evidence (pages 182, 187, and 246 of the record) confirming his continuous service and entitlement, thereby justifying leave to appeal. 3.0 RESPONDENT 0 S CASE 3.1 The Respondent opposed the application through an affidavit sworn by Mukuka Mukuka, learned counsel at ECB Legal Practitioners who have conduct of the matter on its behalf. In that affidavit, counsel contended that the Appellant's grounds were fundamentally misconceived. He argued that the documents exhibited by the Appellant, marked JM2 and JM3, did not in any way establish that the position of SOU Manager was pegged at salary scale KCM 6, and therefore could not support the claim of entitlement to higher benefits. He further noted that this Court had already made a finding of fact that the Appellant acted 1n the position only periodically, not continuously, and on that basis did not qualify for promotion. Counsel also maintained that the order of costs was not punitive, as alleged, but a natural incident of litigation falling vvithin the discretion of the Court. Finally, he asserted that the matters raised by the Appellant had been fully considered and determined in the judgment of this Court, and that no new or compelling reason had been advanced to R6 justify a further appeal. On those grounds, the Respondent prayed that the application be dismissed with costs. 3.2 In the accompanying skeleton arguments filed on behalf of the Respondent, Mr Chibeleka (learned Counsel for the Respondent) submitted that the application for leave to appeal was devoid of merit and, if granted, would amount to a waste of the Supreme Court's time since the issues had already been comprehensively addressed by the Court of Appeal. It was emphasised that appeals to the Supreme Court are no longer as of right, but must satisfy the stringent criteria under section 13(3) of the Court of Appeal Act No. 7 of 2016. 3.3 Reliance was placed on the decision in Bidvest Food Zambia Limited & Others v CAA Import and Export Limited, 2 where the Supreme Court held that only matters raising questions of general public importance fall within section 13, and not those confined to the private interests of the parties. In that case, the Court echoed Lord Bingham's dictum in R v Secretary of State for Trade and Industry, ex parte Eastaway3 that a final appellate court cannot correct errors of settled law but must concentrate on questions of general importance. 3.4 Counsel further relied on Kekelwa Samuel Kongwa v Meamui Georgina Kongwa, 4 where the Supreme Court clarified that for a matter to raise a "point of law of public importance"it must possess a public or general character, not merely affect the rights of the litigants. It was argued that the R7 Appellant's grounds, centered on alleged misapprehension of facts regarding his acting appointments and salary scale, did not meet this threshold. 3.5 Reference was also made to Zambia Consolidated Copper Mines vJames Matale, 5 where it was observed that findings of fact, however flawed, do not ordinarily amount to points of law unless they become inextricably interwoven with a legal question. In this case, the Court of Appeal had properly evaluated the evidence and found that the Appellant only acted as SOU Manager sporadically and had not proved that the position carried the claimed salary scale of KCM 6. 3.6 It was further contended that the Appellant· s fourth ground of appeal, challenging the award of costs, was misconceived as it is trite that costs follow the event and remain in the discretion of the Court. Counsel argued that the grounds advanced only pursued the Appellant's private interest and, if allowed, would amount to unjust enrichment, since he sought benefits for a period he had not served. No procedural irregularity or injustice had been demonstrated to warrant recourse under section 13(3)(d). 3.7 In the circumstances, Counsel urged that the application fell short of the statutory threshold and should be dismissed with costs. 4.0 HEARING OF THE APPLICATION 4.1 When the matter came up for hearing on 4 th July, 2024, learned Counsel for both parties appeared and confirmed RS that they would rely entirely on the affidavits and skeleton arguments filed. No further oral submissions were made. 5.0 ANALYSIS AND DECISION OF THIS COURT 5.1 This Court has carefully considered the affidavit evidence, the skeleton arguments of both parties, and the authorities cited. The jurisdiction to grant leave to appeal to the Supreme Court is narrowly circumscribed by Section 13(3) of the Court of Appeal Act. As the Supreme Court stated in Bidvest Foods v CAA Import & Export Ltd (supra): "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 employs to restrict appeals to that court. The resources of the courts are overstretched, and if it were othe,wise the doors of justice would be open to busybodies whose only aim is to delay the inevitable execution of a judgment." 5.2 The Appellant urged that his five year service as Acting SOU Manager without confirmation amounted to casualisation contrary to statute, and that he was entitled to be retired on salary scale KCM 6 with enhanced pension benefits. He further contended that the matter raised questions of public interest regarding the treatment of acting appointments and computation of pension benefits. 5.3 The Respondent, on the other hand, argued that the Appellant's grounds merely invite this Court to revisit R9 findings of fact already made, that his acting appointments were intermittent and not continuous, and that there was no evidence that the SOU Manager position carried salary scale KCM 6. Counsel submitted that no point of law of general importance was raised and that the application amounted to an attempt to secure unjust enrichment. 5.4 We agree with the Respondent's submissions. As the Supreme Court held in Bidvest Food Zambia Limited & Others v CAA Import & Export Limited (supra), the jurisdiction to grant leave is tightly circumscribed to matters that transcend private rights and raise issues of broad public significance. Similarly, in Kekelwa Samuel Kongwa v Meamui Georgina Kongwa (supra), the Court made clear that a "point of law of public importance" must possess a general character, rather than one confined to the peculiar circumstances of the parties. The present grounds, being anchored on an assessment of evidence relating to the Appellant's service record, do not attain that threshold. 5.5 We also find instructive the decision in Zambia Consolidated Copper Mines vJames Matale (supra), where it was stated that findings of fact, however unsatisfactory, do not ordinarily translate into points of law unless inextricably interwoven with a legal issue. The Appellant's reliance on documentary records at pages 182 and 187 of the record of appeal, and oral testimony at page 246, amounts to no more than a challenge to the factual conclusions already reached RIO by the Court. That is insufficient to ground leave under section l 3(3}(a). 5.6 Nor has the Appellant demonstrated any procedural irregularity or injustice to engage section l 3(3J(d). The complaint regarding costs equally fails, as costs follow the event and remain a discretionary matter. There is no basis upon which this Court can fault the order made. 5. 7 In the premises, we are of the considered view that the Appellant has not raised any point of law of public importance. He has neither demonstrated a reasonable prospect of success, nor shown any compelling reason why the matter should be placed before the Supreme Court. 5.8 Accordingly, the application for leave to appeal is dismissed with costs. . ..... ~-=~~ ...... --~-................. . M. M. Kondolo, SC COURT OF APPEAL JUDGE ·······~ ~~i;············· COURT OF APPEAL JUDGE A. M. Banda-Bobo COURT OF APPEAL JUDGE