Mwansa v Tanzania Zambia Railway Authority (SCZ Appeal 42 of 2005) [2005] ZMSC 32 (27 October 2005)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 42/2005 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: GOODWIN MWANSA APPELLANT AND TANZANIA ZAMBIA RAILWAY AUTHORITY RESPONDENT Coram: Lewanika, DCJ, Silomba, JS and Munthali Ag. JS On 6th September, 2005 and 27th October, 2005 For the Appellant: Appeared in person For the Respondent: Mr. John L. Kabuka of Kabuka & Company. JUDGMENT Lewanika, DCJ., delivered the Judgment of the Court. Statutes Referred to: 1. The Industrial and Labour Relations Act, Cap. 269 of the Laws of Zambia. This is an appeal against the ruling of the Industrial Relations Court which upheld the dismissal of the Appellant from the employment of the Respondent Company for the theft of brake pads. The Appellant has challenged his dismissal on the grounds that he did not steal the brake pads as alleged against him by the Respondent. He prays that he should be reinstated in his employment since the Respondent failed to establish any case against him. The Appellant argues that there was no sufficient evidence by the Respondent to connect him to the theft of the brake pads as alleged against him. The facts of the case are generally not in dispute and were common cause. The Appellant was employed by the Respondent as a welder and worked as such until his dismissal. On 10th May, 1996, brake pads were requisitioned from the stores of the Respondent with a view to fixing them on a TAZARA Scania Truck. During lunch time, the brake pads were left on a fork-lift truck by the mechanics who were assigned to work on the Scania Truck, as they did not finish fitting one set of pads on the said truck. After lunch time, the Appellant went to the workshop and took away the fork-lift truck as he allegedly wanted to use it in collecting the oxygen cylinder and electrodes for use in metal fabrication. When the team who were assigned to repair the Scania truck returned to the workshop, to resume repairs, they did not find the brake pads on the fork lift truck or anywhere else at all. Investigations were commenced in which the local police were involved and eventually the brake pads were found hidden in a place near the workshop where the Appellant operated from. Investigations were intensified and the police narrowed down on the Appellant as the suspect. He was detained in police custody but was later on released by the police on grounds that there was insufficient evidence to prosecute the case in the courts of law. As a consequence, the matter was sent back to the Respondents to deal with it administratively. On 13th May, 1996, the Appellant was charged with the theft of property belonging to TAZARA. There was a case hearing by TAZARA Management on 18th June, 1996 which recommended for the summary dismissal of the Appellant. The Appellant was finally dismissed on 4th July, 1996. The Appellant being dissatisfied with his dismissal appealed according to the established appeal procedures available in the Respondent's Company Code of discipline. At all stages of the appeal process, Appellant's appeal was dismissed. It is for this reason that he now appealed to this court. The Appellant, who was unrepresented during the hearing of this appeal, put up six arguments of what he termed "grounds of appeal" as stated here below:- (1) (2) The Judgment does not state the exact time when Levy Musonda Mwelwa RW1 found the brake pads on the folk lifter in the workshop. The mere saying that he found the brake pads after lunch is not enough to link me to the theft. In the Judgment the exact time is not stated when these mechanics were assigned to fix the brake pads on the truck, and the time when RW1 Levy Musonda Mwelwa saw me transporting the radiator to stores also is not stated. Mere access to folk lifter does not link the Appellant to this matter. (3) In my evidence in court, I never talked about the absolute radiator, only talked about collecting the oxygen cylinder from store steward RW3 Mr. Chikoko. AH what was said about the obsolute radiator was mere fabrication. (4) It is not true that I did not get permission from my supervisor. I got permission from the foreman Mr. Chashinka who was near-by me. And it is not true that I have no authority to drive the folk lifter, I produced showed the court the maintenance workshop certificate dated 2^ June, 1992 which allows me to drive the folk lifter. (5) The fact that I had a financial problem on that particular day cannot be the reason to connect me to the theft of brake pads. In fact not me alone had this financial problem on that particular day. (6) In the courts judgment, the court found no direct evidence to theft of the brake pads. In his oral submissions before court, the Appellant emphasized that he did not report for work immediately after 14.00 hours but at 14:45 hours, when he had concluded his mission for which he obtained permission. He added that because of his reporting for work at 14.45 hours, there was no way or other means that he could have stolen the brake pads immediately after lunch. He argued that Rwl, levy Musonda Mwelwa failed to tell the lower court the exact time he saw him drive the folk lift truck so as to connect him to the said theft. Here, this court has found with certainty, as the court below did, that brake pads got lost after lunch time and that only after the Appellant drove the folk lift truck did the brake pads go missing. This fact is, therefore, not in dispute. The lower court's finding is sustained. The Appellant also submitted that it was part of his duties to drive the folk lift truck especially at times when he collected oxygen cylinders from the stores as he did on this particular day. The Appellant showed the court his certificate dated 29th June, 1992 which purportedly authorized him to drive the folk lift truck. He concluded by submitting that in fact on the material day, he got permission to drive the folk truck from his Foreman, Mr. Chashinka. IVe cannot upset the lower court's finding that the Appellant had no authority from the Respondent to drive the folk lift truck. Equally, the certificate dated 29th June, 1992 which the Appellant wished to rely on did not convey any such authority. This court is also alive to the evidence on record and does not wish to upset the finding of the lower court that no such permission was ever granted to the Appellant. The Appellant also orally submitted that, in mines, workers especially in his capacity were advised to check place of work to assure themselves of security and safety. Therefore, on the material day he found a radiator lying on the ground near his work place and that because he considered it to be a useful equipment he decided to use the folk lift truck to collect it to the stores. Unfortunately, the Stores Officer declined to accept it. The Appellant stated that he did not know that the radiator was obsolete. Counsel for the Respondent contended that the Appellant never made any mention of this fact during trial in the lower court below but Respondent's witnesses did. Therefore, Respondent's Counsel was surprised to hear that now the Appellant had admitted this fact, a fact which he himself denied and had made it a ground of this appeal. We agree with the Respondent's Advocate observation. The Appellant strongly submitted that there was no direct evidence to link him to the theft of the brake pads. We are much alive to the law of evidence which allows not only direct evidence in cases of this nature, but also permits a court to make a positive finding if circumstantial evidence is so overwhelming. In the circumstances, we are unable to upset the lower court's finding that there was sufficient circumstantial evidence connecting the Appellant to the theft of the Respondent's brake pads. Counsel for the Respondent relied on his earlier submissions in the court below except he pain stakingly observed that the appeal before the court was misconceived in law in the sense that what appeared to be grounds of appeal were contrary to the provisions of Section 97 of the Industrial and Labour Relations Act, Cap 269 of the Law of Zambia. He quoted the fore going Section as stating that: "Any person aggrieved by any award, declaration or judgment of the court may appeal to the Supreme Court on any point of law or any point of mixed law and fact." The Respondent's Counsel further submitted that the Appellant failed to establish any ground of appeal on account of any point of law or any point of mixed law and fact. He stated that the Appellant was merely aggrieved with facts only and prayed that his appeal could be dismissed as incompetent in law and without merit. He added that the lower court was, therefore, justified in making the finding of facts as it did. There was no misapprehension of facts and accordingly this court should not interfere with the judgment of the Industrial Relations Court which upheld the dismissal of the Appellant from the employment of the Respondent for the theft of brake pads. We have considered the submissions made by the Appellant as well as those of Counsel for the Respondent and the evidence on record. We agree with the Respondent's Counsel that the Appellant's grounds of appeal are based on the finding of fact made by the court below. Section 97 of the Industrial and Labour Relations Act provides for Appeal from the Industrial Relations Court to be based on any point of law or any point of mixed law and fact. We find that the grounds of appeal submitted by the Appellant do not raise any grounds on a point of law or a mixed law and fact. This appeal is, therefore, misconceived in law and we accordingly dismiss it. As to the question of costs, having regard to the circumstances of the Appellant we order that each party will bear its costs. D. M. Lewanika DEPUTY CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE AG. SUPREME COURT S. K. Munthali JUDGE