Pius Chilufya Kasolo v ZCCM Investment Holdings Plc (SP 87/2024) [2025] ZMCA 144 (19 November 2025)

IN THE COURT OF APPEAL OF ZAMBIA SP 87/2024 HOLDEN AT NDOLA (Civil J u r isdiction) BETWEEN: AND 1 ~ L~V 2025 . ZCCM INVESTMENT HOLDINGS PLC RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA On 12th November, 2025 and 19th November, 2025. For the Appellant: Mr M. Mubanga of Messrs Ch ilupe and Permanent Chambers, Mr. C. Chungu of Messrs Nsapato and Company For the Respondent: Mr. A. Mbambara of Messrs A. Mbambara Legal Practitioners RULING Banda-Bobo, JA, delivered the Ruling of the Court. Cases referred to: 1. Bidvest Food Zambia and 4 Others v CAA Import and Export Limited, SCZ Appeal No. 56/2017 2. Tanfern Limited v Cameroon MacDonald (2000) 1 WLR 1311 3 . Savenda Management Services Limited v Stanbic Bank Zambia Limited SCZ, Selected Judgment No. 10 of 2018 4 . Clever Mpoha & Savenda Management Services Limited v ETS Rwasa Salvator SCZ/8/25/202 1 5. Natasha Nawa v The People SCZ Appeal No. 92 of 2019 6 . Henry Nyambe v LumwanaSCZ/7 /34/2024 7. Hermanus Philipus Steyn v. Giovanni Gnecchi Ruscone (Appeal No. 4 of 2012) 8. Ireen Zulu v Zambia Na tional Holdings Limited SCZ Appeal No. 24 of 2 002 9 . Chris pin Mutale v Bank of Zambia (2015) ZMSC 17 10 Stanbic Bank Zambia Ltd v Gregson Kazembe SCZ Legislation referred to: 1. The Court of Appeal Act No. 7 of 2016 1.0 INTRODUCTION 1. 1 This is a Ruling on an application by Motion accompanied by an affidavit in support. The Motion is made pursuant to Section 13(3) (a) of the Court of Appeal Act, 2016. 1.2 The applicant seeks leave of this Court to appeal to the Supreme Court, against our decision dated 28th November, 2024, wherein we upheld the applicant's appeal. 1.3 The applicant, who had been the complainant in the lower Court, had judgment rendered against him. Being dissatisfied with the lower Court's decision, he filed an appeal to this Court, advancing seven grounds of appeal. 1.4 After due consideration of the grounds of appeal, heads of argument for and against the appeal, this Court rendered its judgment on 28th November, 2024. We upheld the a ppeal. R2 1.5 In paragraph 11.51 of our Judgment, we were of the view that the Appellant discharged the burden of proof, showing how traumatic his dismissal was to him. That his dismissal therefore warranted an award of damages that are beyond the common law measure. 1.6 We awarded him six months' salary as damages for wrongful dismissal with interest. 2.0 APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT 2. 1 It is this that has formed the basis of the proposed three grounds of appeal to the Supreme Court. The proposed grounds are based on part of this Court's decision and are couched as follows: (a)The Court erred both in fact and law by awarding six months' salary to the Appellant as damages for wrongful dismissal contrary to established jurisprudence and holding of the Supreme Court in its various decided cases on the subject of award of damages and also inconsistent with the finding of the lower Court in its Judgment. (b)The lower Court erred both in fact and law by awarding a minimal award in damages t hat is not R3 commensurate with the gravity of injustices and inconveniences caused upon the Appellant as a direct consequence of the Respondent's wrongful termination of his employment. (c) The lower Court erred in both fact and law by awarding damages for traumatic dismissal to the Appellant without specifying the period of entitlement as well as the applicable quantum thereby appearing to combine both awards under one head and not separating them on the basis of the complaint and established practice. (d) The Court below erred in fact and law by denying to award costs to the Appellant without the lower court taking into account circumstances on record which would have necessitated the award of the costs to him. (e) such as award appearing to have been combined with the award for wrongful dismissal thereby neglecting to separate the said awards. 2.2 In the accompanying affidavit to the Motion, the Applicant, averred that he was desirous of appealing to the R4 Supreme Court against this Court's judgment. He averred that the appeal raises fundamental points of law of public importance in relation to the quantum of damages in unfair and unlawful dismissal matters. 3.0 SUBMISSIONS 3.1 It was submitted for the Applicant that the intended grounds of appeal should raise weighty issues, which must be on a point of law of public importance and on issues adjudicated on by the Court of Appeal, or there must be compelling reasons to grant leave. It was argued that, in the circumstances, the appeal meets all the criteria for an appeal to be heard and determined by the Supreme Court. 3.2 Reference was made to Section 13(3) of the Court of Appeal Act, which stipulates as follows: "(3) The Court may grant leave to appeal where it considers that (a) the appeal raises a point of law of public importance; (b) it is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; (c) the appeal would have a reasonable prospect of RS success; or (d) there is some other compelling reason for the appeal to be heard." 3. 3 Further reference was made to the case of Bidvest Food Zambia and 4 Others v CAA Import and Export Limite d 1 , where the Supreme Court guided that: " .. .it is in that spirit that Section 13 of the Court of Appeal Act, restricting access to the Supreme Court by referring to the Apex court only weighty issues in the most deserving of cases, should be understood ... It is thus absolutely important that an intending appellant s hould frame the point o f law of public importance arising from the judgment of the Court of Appeal clearly." 3.4 It was further submitted that the grounds of appeal are not limited to the rights of the Applicant and the Responden t, but affect the public at large and are of general importance. That these grounds will guide lower courts on how the quantum of damages for wrongful or unfair dismissal ought to be determined. 3.5 It was further submitted that there are strong prospects of success in the proposed appeal. Reference was made to R6 the case of Tanfern Limited v Cameroon MacDonald2 ' where it was held that: "Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard (CPR 52.3(6)). Lord Woolf MR explained that the use of the word 'real' means that the prospect of success must be realistic rather than fanciful. " 3 .6 It was argued th at th e proposed Memorandum of Appeal has a realistic chance of success as it raises arguable points regarding p oints of law which are of p u blic importance. 3.7 Regarding th e issu e of compelling reasons, it was submitted that th ere are compelling reasons for leave to be granted to appeal to the Supreme Court. Further,that the appeal will give the Supreme Court an opportu n ity to develop Zambia 1s jurisprudence with respect to the n eed for clarity in this area of law. Reference was made to the case of Savenda Management Services Limited v R7 Stanbic Bank Zambia Limited SCZ3 , where the court held: "Compelling reasons must go beyond the personal interests of the parties involved. The issue on appeal should be one that would contribute to the development of the law, especially where the law is uncertain or where there is conflicting case law. The appeal should address a miscarriage of justice that is of significant public concern or a fundamental misunderstanding of the law by the lower courts." 3.8 It was argued that the award of six months' damages to the Applicant by the Court of Appeal in its judgment of 28th November 2024 was an assault on the existing jurisprudence regarding the general principles in the award of damages by the Supreme Court. That various cases in which the apex Court awarded significantly higher damages, e.g., 36 months, had much less aggravating circumstances than those found by this Court in its judgment of the current case. 3 .9 In opposition, it was submitted that the Applicant has not raised any issue that meets the requirements set out in R8 Section 13(3)(a), (c), and (d) of the Court of Appeal Act. It was argued that the Applicant's proposed grounds of appeal do not raise any novel matter or crucial points of law of public importance to be settled by the apex Court. Reference was made to the cases of Savenda Management Services Limited v Stanbic Zambia Limited3 , Clever Mpoha and Savenda Management Services Limited v ETS Rwasa Salvator4 , and Natasha Nawa v The People5 , to support this position. 4.0 HEARING 4 . 1 At the hearing, Mr. Mubanga relied on the Skeleton Arguments filed on 24 th January 2025 . He emphasised that the appeal concerns the award of damages specifically, and the principles guiding the calculation of quantum. He submitted that the Supreme Court n eeds to provide an authoritative decision to guide the lower courts. 4.2 Mr. Chungu, co-counsel, argued that, currently, a review of approximately 186 cases reveals a lack of consistency. He argued that a Supreme Court decision would assist the courts in handling this issue predictably. Furthermore, he R9 contended that the appeal raises significant questions about how damages should be awarded, citing the case of Henry Nyambe v Lumwana6 , at paragraph 33. 4.3 In opposition, Mr. Mbambara relied on the Skeleton Arguments filed on 24 th December 2024. He argued that a review of the grounds of appeal shows that the applicant is merely dissatisfied with the damages awarded. He further contended that there is nothing novel about the six-month award, as this court has already addressed the principles governing damages . 4.4 He submitted that the Nyambe6 case should be distinguished from the present one because it dealt with redundancy. Additionally, he argued that the claim that the Supreme Court has failed to provide an explanation does not meet the threshold for appeal, insisting that this court's judgment is clear and has adequately addressed the matter. 4.5 In reply, it was argued that the appeal seeks to assist others who may have been dismissed or terminated, requesting the Supreme Court to determine the appropriate award in such cases. RlO 5.0 5.1 DECISION OF THIS COURT We have carefully considered the affidavit, the arguments for the Motion, and our judgment being impugned. We have also critically considered the proposed grounds of appeal. 5.2 It is trite that appeals to the Supreme Court are not a matter of right; as Section 13 of the Court of Appeal Act makes it clear that an appeal only lies to the Supreme Court with leave of the Court of Appeal. We note that counsel for the applicants herein has succinctly set out the provision of the law and its import, a position we totally agree with. 5.3 Section 13 sets out the tests which must be complied with before the Court of Appeal can grant leave to appeal. Section 13(3)(a) to (d) is as reproduced in paragraph 3.2 of the Judgment. 5.4 The applicant therefore has to demonstrate that the appeal meets the test in the above Section. The said point of law must not be one merely restricted to the parties to the matter. R11 5 .5 It was guided in the Bidvest 1 case cited by the Applicant herein, inter alia that:- "... many cases of a purely private nature including many in contract and tort, are unlikely to raise points of law of public importance since they quite often are designed to resolving the dispute to the satisfaction of only one or the limited parties to a particular dispute." 5.6 At page J30 of the cited case, the Supreme Court, quoted with approval the Kenyan case of Hermanus Philipus Steyn v . Giovann Giovnanni Grecchic Ruscone 7 on the meaning assigned to the term "a matter of General Public Importance" where it was stated as follows:- "(i) The importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance; (ii) where the matter involves a point of law, t he applicant demonstrates 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 courts to administer that law not only to the case at hand, but other cases in future; (iii) It is not enough to show that a difficult R12 question of law arose, it must be an important question of law; (iv) A question of ge.neral importance is a question which takes into account the well-being of a society in first proportion." 5.7 The Supreme Court went on to guide, as appear at page J32 of the same case, that the intended appellant bore the burden of demonstrating that the matter in question carnes specific elements of real public interest and concern. 5.8 Further at page J39, that it is not every novel issue in a matter that in and of 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 Court of Appeal Act. 5. 9 A critical analysis is warranted regarding whether this application meets the statutory threshold for leave to appeal, and whether the grounds have merit in light of Zambian jurisprudence. 5.10 The Court of Appeal reviewed seven grounds of appeal regarding the applicant's dismissal, ultimately finding that he had indeed satisfied the burden of proof regarding the traumatic impact of his dismissal, warranting an award of R13 damages beyond the common law standard. The court awarded six months' salary as damages, with interest, for wrongful dismissal. No separate award was made specifically for trauma, and costs were not awarded to the appellant. 5.11 The proposed grounds of appeal focus on: (I) The propriety of the six-month salary award vis-a-vis Supreme Court precedent. (II) Alleged conflation of damages for trauma and wrongful dismissal. (III) Refusal to award costs without adequate consideration of circumstances. 5.12 The applicant frames these as matters of broad public interest on the quantum of damages in wrongful dismissal cases. 5.13 In casu, the record shows the heightened award of six months' salary as a composite but reasoned response to the trauma substantiated by the applicant. Demanding further details risks undue proceduralism without substantive injustice. 5. 14 It is our considered view that none of these grounds demonstrates a novel or controversial principle. The quantum and character of damages for wrongful dismissal R14 have been repeatedly clarified by the Supreme Court in a plethora of cases. The Supreme Court has had opportunity to pronounce itself on this question in the cases of Ireen Zulu v Zambia National Holdings Limited8 which case clarifies the basis for enhanced damages and judicial discretion. In the case of Chrispin Mutale v Bank of Zambia9 , the court affirmed contract based approach and rare exceptional enhancement. 5. 15 In the case of Stanbic Bank Zambia Ltd v Gregson Kazembe 10 , it was emphasised that courts have discretion in framing awards, what matters is that the basis for damages is clear from the reasoning. 5.16 No significant departure from those precedents or unresolved question of law is apparent here. 5.17 The application does not raise any new or unsettled legal question of public importance warranting Supreme Court intervention or review. The Court of Appeal's award was within the legal framework set by precedents and was adequately reasoned. No manifest injustice or error of law appears. RlS 5.18 The Court of Appeal's decision to award six months' salary as damages was a reasonable exercise of judicial power in light of proven trauma, consistent with Zambian legal standards. The applicant's grounds fail to identify any genuine point of law of public importance, exceptional circumstance, or error of law. 5.19 In the view we have taken , there is no merit in the Motion, and we accordingly dismiss it. 5 . 20 Each party to bear own costs as this matter emanated J. CHASHI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE ····-~ ·-··············· A. M. BANDA-BOBO COURT OF APPEAL JUDGE R16