Kambikambi v Zambia Railways (Appeal 96 of 2004) [2005] ZMSC 21 (22 November 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 96/2004 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: ABEL KAMBIKAMBI < APPELLANT AND ZAMBIA RAILWAYS RESPONDENT CORAM: LEW ANIKA, DCJ., CHIBESAKUNDA, CHITENGI JJS On 3rd August, 2004 and 22nd November, 2005 For the Appellant: For the Respondent: In Person M. MALILA of Phoenix Partners JUDGMENT LEW ANIKA, DCJ delivered the judgment of the court. AUTHORITIES REFERRED TO 1. 2. 3. 4. 5. DPP VS NGA’NDU & OTHERS, 1975, ZR 253 LIVINGSTONE MUNICIPAL COUNCIL VS INUTU ETAMBUYU SUBA, APPEAL NO. 75 OF 1998 ZAMBIA RAILWAYS LTD VS PADDY PHILIMON KAUNDA & 144 OTHERS, SCZ APPEAL NO. 147 OF 1998 ANDREW CHISANGA VS NDOLA LIME COMPANY LIMITED, SCZ APPEAL NO. 77 OF 1999 N. B. MBAZIMA & ANOTHER (JOINT LIQUIDATORS OF ZIMCO IN LIQUIDATION) VS REUBEN VERA, APPEAL NO. 30/2000. This is an appeal against the decision of the Industrial Relations Court refusing to grant the Appellant the various reliefs he applied for in his complaint before that court. The Appellant has filed 11 grounds of appeal in the Memorandum of I Appeal and in the view that we take of this appeal, we do not intend to itemise them as they are on record. The facts of this case can be briefly stated as follows; the Appellant who was an employee of the Respondent was on 20th May, 1992 appointed by the Respondent as Manager, Njanji Commuter train Services. On 9th February, 1993 he was suspended from duty on various allegations of mismanagement of the operations of the Njanji Commuter Services. On 3rd July, 1993 he was reverted to his substantive post of Station Master, Special, but remained on suspension and on 3rd September, 1993 he was dismissed from employment by the Respondent. He then instituted these proceedings in the Industrial Relations Court, which were the subject of an earlier appeal. As a - t matter of fact, the judgment that he is now appealing against is the one that was passed after re-hearing of the case by the Industrial Relations Court as ordered by ourselves. The evidence on record is that the Appellant was charged with eight counts involving dishonesty and/or incompetency and appeared before a Disciplinary Committee at which he was requested to exculpate himself which he did. However, the Disciplinary Committee did not accept his explanations and recommended his dismissal. The Industrial Relations Court found that the Respondent was justified in dismissing the Appellant and that it had complied with the disciplinary procedures contained in its code of conduct, hence this appeal. A perusal of grounds 1 to 10 of the grounds of appeal filed by the Appellant and his submissions shows that in the main, the grounds attack the I I findings of fact made by the trial court, in this case, the Industrial Relations Court. In arriving at its decision the Industrial Relations Court found as follows on page 6 lines 9 to 19 of the record:- J “the evidence laid before us particularly that of Mr. Mutale John Mulenga and Mr. Simfukwe shows that the complainant did: not satisfactorily answer the allegations raised against him. The evidence clearly shows that as Manager, Commuter train, the complainant did not conduct himself in an honest and competent manner. Indeed: the evidence of these witnesses shows that the Respondent complied with the disciplinary procedures in dealing with the complainant’s case, and the complainant was given adequate opportunity to exculpate himself against the charges raised against him, that he in fact did answer the charges, but his explanations were not satisfactory. This evidence to our minds shows clearly that the Respondent 'was justified to dismiss the complainant from its employment.” These were findings of fact made by the trial court on the evidence adduced before it. Section 97 of the Industrial and Labour Relations Act which deals with appeals from the Industrial Relations Court to the Supreme Court provides as follows 97. Any person aggrieved by any award, declaration, decision or judgment of the court may appeal to the Supreme Court on any point of law or any point of mixed law andfact. As we have already pointed out, grounds 1 to 10 of the Appellant’s - ground of appeal do not raise any point of law or any point of mixed law and fact. As we have stated in our previous decisions such as LIVINGSTONE MUNICIPAL COUNCIL VS INUTU ETAMBUYU SUB A (2), ZAMBIA 1 RAILWAYS LTD VS PADDY PHILIMON KAUNDA AND 144 OTHERS (3) and ANDREW CHISANGA VS NDOLA LIME COMPANY (4) an appeal to this court from a decision of the Industrial Relations Court will not be competent and cannot be entertained if it is not on any point of law or point of mixed law and fact and therefore grounds 1 to 10 of the Appellant’s grounds of appeal cannot succeed. Ground 11 relates to the claim by the Appellant that he is entitled to purchase House No. 7 Omelo Mumba Road, Rhodes Park, Lusaka as a sitting tenant. The evidence on record is that the Appellant was dismissed from employment on 3rd September, 1993 and that the policy decision to sell company houses to sitting tenants came into effect on 28th April, 1995 after approval by the Board of Directors of the Respondent on 2nd December, 1994 and clearance from the Zambia Privatisation Agency on 13th March, 1995. The decision to sell company houses came into effect well after the Appellant was dismissed from employment. The fact that he had challenged his dismissal and remained in occupation of the house by virtue of an injunction did not make him eligible to purchase the house as a sitting tenant. The court below was therefore on firm ground in finding that the Appellant was not entitled to purchase the house in question. This ground of appeal cannot succeed as well. i Counsel for the Respondent in his submission has invited us to make HI an order that the Appellant satisfies his undertaking as to damages contained in the injunction on the strength of which he has occupied the Respondent’s house for some twelve years. We do not see any need for us to do so, as it is open to the Respondent to enforce the undertaking as to damages without an order from us. The sum total of our judgment is that we find no merit in the appeal which we hereby dismiss, but having regard to the Appellant’s circumstances, we make no o tCx costs. D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE SUPREME COURT JUDGE 5