Zambia National Commercial Bank Plc v Martin Tembo and Anor (Appeal No.98/2023) [2025] ZMCA 127 (25 September 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction} AppealNo.98/2023 SP 17/2025 BETWEEN: ZAMBIA NATIONAL COMMERCIAL BANK PLC APPELLANT AND MARTIN TEMBO MICAH SITALI .. ,,.. ( -:. ~, '½'--'.,.:::... '" ··r C. r-- 2 5 ('>-::, ' "'" .:it::.r lllL:) 1 ST RESPONDENT 2ND RESPONDENT Coram: Kondolo SC, Majula and Muzenga. JJA On 26th March, 2025 and 25'1• September, 2025. For the Appellant: Mrs N. Simachela with Mrs M. Chakoleka & Mrs N. Dimingo, all of Nchito & Nchito For the Respondents: Mr. J. C. Kalokoni with Mr. L. Kimena, both of Messrs Kalokoni & Company RULING MAJULA JA, delivered the Ruling of the Court. Cases referred to: 1. Bidvest Foods and Four Others v CAA Import & Export Ltd (SCZ Appeal No. 56 of 2017) 2. 3. Zlatan Zlatakoauronotivic v Stanbic Bank Ltd (SCZ/08/ 14/2020) Savenda Management Services Ltd v stanbic Bank Zambia Ltd (Selected Judgment No. 10 of 2018) R2 4. 5. 6. 7. 8. 9. R (A Child) [2019] EWCA Civ 895 Musonda Mutale v African Banking Corporation Ltd (SCZ/ 05/08/2020) Victoria Daka v Petauke District Council (SCZ Appeal No. 1 08/ 2011) Supabets Sports Betting v Batuke Kalimukwa (SCZ Appeal No. 10/ 2016) Jacob Nyoni v Attorney-General (2001) ZR 65 Chinto"ifwa v Ndola Lime Ltd (1999) ZR 172 10. Astra Holdings Ltd v Edgar Hamulele (SCZB/26/2021) 11. Chilanga Cement Pie v Kasote Singo go (SCZ 13 of 200 9) 12. Dennis Chansa v Barclays Bank Zambia Plc (SCZ 8 128 of 2011) Legislation referred to: l. 2. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 The Court of Appeal Act No. 7 of 2016 1,0 INTRODUCTION 1.1 Before this Court is an application by Zambia National Commercial Bank PLC ("the Applicant"), seeking leave to appeal to the Supreme Court against the judgment of this Court delivered on 15th April 2025. The application is brought under Order XI Rule 1(1) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016, as read with Section 13(2) and (3) of the Court of Appeal Act No. 7 of 2016. 1.2 The legal framework circumscribes the circumstances under which this Court may exercise its discretion to grant leave. It is well established that leave may only be granted if the intended appeal raises a point of law of public importance, R3 has reasonable prospects of success, or if there exists some other compelling reason why the Supreme Court should hear the matter. 2.0 APPELLANT'S CASE 2.1 The application is supported by the affidavit of Ngawo Nakamba, Head of Litigation and Advisory at the Applicant Bank. In it, the Applicant outlines its dissatisfaction with this Court's decision, arguing that the judgment contains errors of law and fact warranting review by the Supreme Court. 2.2 In summary, the Applicant contends that: 1. The Court erred when it upheld an award of thirty-six (36) months' salary as damages for wrongful dismissal, despite simultaneously finding that the Respondents' dismissal was not wrongful and that the Applicant had observed the requisite disciplinary procedures. 2. The Court erred when it found the dismissal of the Respondents to be unfair, allegedly without a proper evidential or legal foundation. 2.3 The Applicant argues that these issues raise questions of general public importance in employment law, particularly on whether damages can be awarded in circumstances where dismissal was found not to be wrongful, and how far courts may inquire into the merits of dismissal decisions without usurping the jurisdiction of internal disciplinary bodies. 2.4 In its skeleton arguments, the Applicant contended that the intended appeal meets the requirements set out under R4 Section 13(3) of the Court of Appeal Act. To support this position, reliance was placed on several authorities. In Bidvest Foods and Four Others v CAA Import & Export Ltd,1 the Supreme Court underscored the rationale for restricting access to the apex Court to only the most deserving cases. Further reliance was placed on Zlatan Zlatakoauronotivic v Stanbic Bank Ltd,2 where the Court elaborated on the criteria to be considered when granting leave. The Applicant also drew strength from Savenda Management Services Ltd v Stanbic Bank Zambia Ltd, 3 where it was emphasised that "compelling reasons" must extend beyond the personal grievances of the parties and reflect broader issues of public importance. 2.5 The Applicant further submitted that the proposed grounds have a realistic prospect of success, citing the English authority of R (A Child}, 4 where it was held that the test is one of"realistic, as opposed to fanciful, prospects of success." 2.6 On the whole, the Applicant urges this Court to grant leave to appeal, maintaining that the Supreme Court's intervention is necessary to provide clarity on the award of damages and the scope of judicial oversight in employment disputes. 3.0 RESPONDENTS' CASE 3 .1 The application is strenuously opposed through an affidavit sworn by the Respondents, Martin Tembo and Micah Sitali. They assert that the application is lacking in merit, vexatious, and designed to delay the enjoyment of the fruits of their judgment. They further depose that the proposed appeal R5 has "dim or no reasonable prospects of success" and is "a mere attempt to delay the inevitable execution" of this Court· s judgment. 3.2 The Respondents recount that they had already suffered humiliation and financial injury from the Applicant's attempts to recover staff loans through writs of fieri facias, despite their dismissal being found unfair. In their view, the present application is yet another dilatory tactic. 3.3 In their skeleton arguments, the Respondents contended that the Applicant had failed to satisfy the requirements of Section 13 of the Court of Appeal Act. They argued that the proposed appeal neither raised a point of law of public importance nor demonstrated any reasonable prospect of success. To fortify their position, they cited the authority of Musonda Mutale v African Banking Corporation Ltd, 5 where the Supreme Court held that leave to appeal may only be granted if compelling grounds are established. They further relied on Victoria Daka v Petauke District Council,6 1n which the Court distinguished wrongful dismissal as a procedural breach and unfair dismissal as a matter of substantive justification. The Respondents also invoked Supabets Sports Betting v Batuke Kalimukwa, 7 which reaffirmed this settled distinction, and referred to Jacob Nyoni v Attomey-General8 together with Chintomfwa v Ndola Lime Ltd,9 both of which affirmed the settled principles governing the quantum of damages in employment disputes. R6 3.4 They further argued that dissatisfaction with ajudgment, or perceived contradictions therein, does not amount to a point of law of public importance. Reliance was placed on Astro Holdings Ltd v Edgar Hamulele, 10 where the Supreme Court emphasised that mere errors in application of the law are insufficient to warrant its intervention. 3.5 The Respondents concluded that the Applicant's grievances are private in nature, raise no unsettled questions of law, and have no reasonable prospects of success. 4.0 HEARING OF THE APPLICATION 4.1 At the hearing of the application, learned Counsel for the Applicant and the Respondents appeared. Both placed full reliance on the affidavits and skeleton arguments filed. No further oral amplification was advanced. 5.0 ANALYSIS AND DECISION OF THE COURT 5. 1 We have meticulously examined the record and the arguments of counsel. The central issue before this Court is whether the Applicant has satisfied the statutory threshold under Section 1313) of the Court of Appeal Act. That provision allows this Court to grant leave to appeal where the proposed appeal: 1. Raises a point of law of public importance; 2. Has reasonable prospects of success; or 3. Presents some other compelling reason for being heard by the Supreme Court. R7 6,0 POINT OF LAW OF PUBLIC IMPORTANCE 6.1 The Applicant submits that the award of damages despite a finding of procedural compliance raises a point of public importance. However, as the Respondents rightly point out, the law on wrongful and unfair dismissal is settled. In Victoria Daka v Petauke District Council (supra) and Supabets Sports Betting v Batuke Kalimukwa, (supra) the Supreme Court made clear the distinction between wrongful dismissal (procedural) and unfair dismissal (substantive). 6.2 Similarly, the jurisprudence on quantum of damages for loss of employment has been elaborated in numerous authorities, including Jacob Nyoni v Attorney-General (supra) and Chintonifwa v Ndola Lime Ltd (supra). The Supreme Court has gone further in Chilanga Cement Plc v Kasote Singogou and Dennis Chansa v Barclays Bank Zambia Plc, 12 where it recognised circumstances justifying departure from the normal notice period. 6.3 The Applicant has not demonstrated any uncertainty in the law requiring further clarification by the Supreme Court. 7.0 REASONABLE PROSPECTS OF SUCCESS 7.1 The Applicant also asserts that the intended appeal has a realistic prospect of success. This Court does not agree. The findings of this Court were based on an evaluation of evidence and application of settled principles. Dissatisfaction with R8 such findings, or even alleged contradictions, does not ainount to a reasonable prospect of success. 7 .2 As the Supreme Court held in Astro Holdings Ltd v Hamulele: "For this Court to make further pronouncement, there has to be something more than mere dissatisfaction with a Judgment of the Court of Appeal or that it is contradictory." 7.3 The Applicant has failed to show that its proposed grounds rise above dissatisfaction with the judgment. 8.0 COMPELLING REASONS 8.1 Finally, no compelling reasons have been demonstrated. In Savenda Management Services Ltd v Stanbic Bank Zambia Ltd, (supra) the Supreme Court made clear that compelling reasons must transcend the private dispute of the parties and contribute to the development of the law. The present case involves no such uncertainty or wider public interest. 9.0 CONCLUSION 9.1 Having considered the affidavits, skeleton arguments, and authorities cited, this Court is not persuaded that the intended appeal raises any point of law of public importance, has reasonable prospects of success, or discloses any other compelling reason justifying further appeal. R9 9.2 Accordingly, the application for leave to appeal to the Supreme Court is hereby dismissed with costs to the Respondents, to be taxed in default of agreement. M. M. Kondolo, SC COURT OF APPEAL JUDGE ......... ~·zw:s::~ ............ . /h,11...a/; ,, COURT OF APPEAL JUDGE K. uzenga COURT OF APPEAL JUDGE