Griffiths Katenga v National Breweries PLC (Appeal 88 of 2002) [2003] ZMSC 141 (2 September 2003)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 88/2002 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: GRIFFITHS KATENGA APPELLANT AND NATIONAL BREWERIES PLC RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Silomba, JJS on 5th December 2002 and 2nd September 2003 For the Appellant: Mrs. LM. Kunda of George Kunda and Company For the Respondent: Mr. E. Banda of MNB, Legal Practitioners JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Laws & Authorities referred to: 1. 2. 3. Section 97 of the Industrial and Labour Relations Act Zambia Consolidated Copper Mines v Matale (1995/1997) ZR 144 Barclays Bank Zambia Limited v Mando Chola and Ignatius Mubanga SCZ Judgment No. 8 of 1997 This is an appeal against the Industrial Relations Court (IRC) Judgment, dismissing the complaint by the Appellant, that his dismissal from employment by the Respondent on account of false accounting was wrongful. Before the IRC, the Appellant had prayed for either reinstatement or early retirement. His evidence before the IRC was that he was a Bulk Packaging Manager in the Respondent’s employment. His duties included over all supervision of bulk packing of Shake-Shake. On 14th of November 1998 he reported on duty. - J2 - He, Mr. Mubanga and Mr Silungwe were packing Shake-Shake from one of the tanks. During that packing casual workers were apprehended for trying to steal Shake-Shake beer. These casual workers were subsequently dismissed. According to his evidence the packing was thereafter completed without further incident. The following day, 15th November 1998 the Appellant was not on duty. He only reported on duty on 16th November 1998. Upon reporting he prepared stock sheet record of Shake-Shake and discovered that there was a surplus of 4 litres. He made the record accordingly. That same report was handed to Mr. Simukondya. It was his testimony that he made cancellation on the report which had been made on the 14th November 1998 as that report recorded 70 litres as surplus. So he tippexed on that and substituted 4 litres for 70 litres. On 26th November he was summoned by Mr Simukondya and told that he was going to be charged with fraudulent false accounting, as the surplus was 70 litres and not 4 litres. He was then suspended and subsequently after exculpating himself he was called to a meeting. After that he was dismissed. Before the IRC, the Appellant contended that the Respondents were in breach of ZIMCO conditions because this case according to him was not thoroughly investigated by the Human Resources Department and that the committee hearing his case was not properly constituted. The Respondents before the IRC called two witnesses who confirmed most of the evidence by the Appellant but further testified that the packing and the filing of the brewing statistics form was done by RW1 and that this form reflected 70 litres surplus on 14th November 1998 after the Appellant left work. They received 14570 litres. He on the other hand recorded 14500 litres. The Appellant fraudulently reflected a surplus of 4 litres when the packers had recorded 70 litres as surplus on 14th November 1998. According to them he was rightly dismissed on the charge of fraudulent false accounting. The court held that the Appellant was lawfully dismissed and hence his appeal before this court. The court also dismissed his allegation that the Respondent’s senior manager refused to see the Appellant because of the Respondent’s resolve not to reverse its decision of rejecting his appeal after his dismissal. J3 Now before us, the Appellant through his learned counsel applied to amend his memorandum of appeal, as the grounds of appeal in the original memorandum, were grounds anchored on findings of fact and as such in accordance with Section 97 of the Industrial and Labour Relations Act (1), such an appeal could not lie to this court. The application was granted. Mrs. Kunda then filed three grounds of appeal in place of the original memorandum of appeal. At the hearing of the appeal, she submitted that she was abandoning the rest of the grounds of the appeal but was only going to argue one ground of appeal, which was that the learned Deputy Chairperson of the IRC misdirected herself when she held that the Appellant was rightly dismissed on a charge of false accounting. Such finding was not supported by evidence nor was it a finding which a court, correctly directing itself, would have arrived at. She said that there was no dispute that the Appellant was on duty on 14th November 1998 when there was packing of Shake-Shake. There was no dispute that he knocked off around 15.00 hour before they finished packing and counting the stocks around 17.00 hours - that he did not work on 15th November, which was a weekend, but worked on 16th which was a Monday. She further submitted that it was common ground that the Appellant checked the stock on Monday, 16th November 1998. She further argued that the Appellant’s evidence was that on that day 16th November 1998 he only discovered 4 litres as surplus contrary as to what was recorded on the record sheet. She argued that this is the only reason why he tippexed 4 litres on top of 70 litres, and that that did not establish animus furandi. She argued that the learned Deputy Chairperson and her members did not look for any evidence to establish the core ingredient of fraud. She went on to point out that there was evidence that RW1 did not on 14th November prepare a stock sheet although there was a design paper brewing statistics form indicating 70 litres as surplus. She further stressed the point that the two people who remained packing Shake-Shake on 14th November 1998, RW1 and another, did not even fill in a handling report. It was the Appellant who filed in this handling report. - J4 - Also according to her there was evidence that even this tippex corrections were approved by the Appellant’s supervisor and the Appellant candidly and rightly admitted making these corrections. So there was no evidence to support the court’s conclusion that there was fraudulent intention in making these corrections. She argued that the court below ought to have taken it upon itself to establish the actual amount of brew the Respondents were producing in view of the evidence the Appellant adduced by way of further notice to produce at p.74 which I inter alia said in paragraph (h):- “Mr. L. Simukondya stopped the system of recording production figures after we have packed, but he insisted that we should be declaring 14,500 litres as our production, since our standard capacity of each tank is 14,500 and 29 x 500 boxes will give 14,500 and this complete a brew in the event of any remainder that should be declared as surplus.” According to Mrs. Kunda the court should have taken on the responsibility of establishing the actual production statistics on the material day - storage capacity of the tanks, since that was an issue and further establish whether RW1 left 70 litres surplus, whether the same tank could hold 14,500 litres plus 70 litres or whether the 70 litres was in another tank. Failure to do so by the court below resulted in the court’s serious misdirection. She ended by saying that the court erred by ignoring the Appellant’s evidence in the notice to produce at page 74 in order to establish whether or not the story of fraudulent false accounting was a concoction by the Respondent. Mr Banda in response relied on their heads of argument. In court Mr. Banda submitted that the lower court was on firm ground when it made these findings of fact. He cited Barclays Bank Zambia Limited v Mando Chola and Ignatius Mubanga (3) and argued that when the IRC makes a decision, the parties aggrieved by such decision, can only appeal to this court against that decision on a point of law or facts mixed with law not on points of fact. In his own view the court was entitled to make those findings basing such findings on the testimony of witnesses and the documents produced before it. He endorsed the views of the lower court that, the issues raised by the Appellant relating to the ZIMCO conditions on the alleged ill treatment, were issues which did not affect the - J5 - appropriate decision taken into account by the Respondent on dismissing the Appellant based on the overwhelming evidence of false accounting. We have considered the arguments and all issues raised before us. We accept as we said in the case of Zambia Consolidated Copper Mines v Matale (2) that findings of fact can be a question of law if such findings of fact are not supported by evidence or are such that no court would have reached such a conclusion if the evidence was properly considered. In this case, however, the IRC made findings of fact and the evidence on record supports these findings of fact and as such this court lacks jurisdiction to entertain the appeal. We therefore dismiss this appeal on that ground. Costs for the Respondents and to be agreed, if not, to be taxed. D M Lewanika DEPUTY CHIEF JUSTICE L P Chibesakunda SUPREME COURT JUDGE S S Silomba SUPREME COURT JUDGE