JTI Leaf (Malawi)Ltd v Kapachika (MSCA Civil Appeal 52 of 2016) [2021] MWSC 1 (13 April 2021)

I IN THE SUPREME COURT OF APPEAL SITTING AT LILONGWE MSCA Civil APPeal No. 52 of 2OLG (Being High Court Civil Appeal No. 37 of 2015, Lilongwe District Registry) (And also being Matter No. IRC 428of 2Ot2, Lilongwe Registry) Between: JTI Leaf (Malawi) Limited... And Kad Kgpachika....... i i'rl't'ilil """"Appellant """Respondent Coram: Honourable Justice R. R. Mzikamanda SC, JA Honourable Justice A. C. Chipeta SC, JA Honourable Justice L. P. Chikopa SC, JA Ngunde/lmran, of Counsel for the Appellant rrirl r'':'61tip13nde (Mrs)/Minikwa, Court Clerks Pindani (Mrs), Chief Court Reporter chipeta sc, J. A. [with Honourable Justice R. R. Mzikamanda sc, JA and Honourable Justice [lpTCnitopa SC, JA concurring]: . ,,i . -.,.. ; .;'ii',ir' JUDGMENT ,\ tndustrial Relations Court Origin The appeal before us has been taken out by JTI Leaf (Malawi) Limited' lt is a second-rever appear. Earrier on in the matter the same appellant took up,g4d prosecuted a first-level appeal in the High Court of Malawi' The case had initially been litigated in the Industrial Relations court (hereinafter in this judgment referred to as the rRC). In that court of first instance the respondent, one Kad Kapachika, who had been the appellant's employee, emerged successful in a suit he had commenced for unfair dis,r4jqe.al from his employment' By a judgment the Deputy chairperson of the court pronounced on 7th NoVemffer, 2014 multiple awards were made in favour of Mr Kapachika' These included damages for unfair dismissal, an order for the payment 'Of'hiitSbViirance allowance, and an order for payment to him of three months, salary in lieu of notice. vis-d-v,is the awards herein, the court first asked the parties to agree , inter alia in terms of Section 63(5) of the Employment'Actl{Cap 55:01) of the Laws of Malawi, on how they should be calculated. lt, however, also clearly indicated that in the event of the paf[i,es..failing to so agree on the calculations, it would then have to step in and assess the awards itself. Further than this, the court additionally ,.o,rde ih terms of section 65 of the Pensions Act (cap 55:02) of the Laws of Malawi, that Mr Kapachika be paid his pension benefits' The oppeol in the High Court V:F$rtttbf "'(Malawi) result, it aPPealed fl,r. 4, 1i:, fll,ii..,, l' Limited, felt against the aggrieved with the IRC judgment' As a same to the High Court of Malawi at the \ ,t" e District Registry, where its appealwas rpEistered as civilAppeal L No.,37 of 201-5. lt is important that we right away mention the fact that this ipp."f was taken up both before an agreement had been reached by the parties on the manner the awards the Court had made would be calculated, and before the court had assessed any of the said awards' The appeal was based on five grounds, which in amended form' were as follow6':' ,....(?.) '|Qwer u."-'-' court erred in law in hoIding that the appe|lant did not * ar," requisite procedure in dismissing the respondent; The lower Court erred in law in holding that the appellant had (b) no va|id reasons to dismiss the respondent; (c)The lower court erred in law in holding that the respondent was unfairlY dismissed; '+rl1dT,'ri The lower Court erred in law in holding that the respondent ,; .," :, il .gnlitled to damages for unfair dismissal' severance POY' 3 (e)The lower court's decision was against the weight of the evidence' The appeal in question was concluded on 3'd September,2oL5 with a judgment that was pronounced by Honourable Justice M'C'C' awire (as he then was). The Honourable Judge dismissed the in its entirety and ordered each party to meet its own costs' rt.was,the court,s holding in the said judgment that Section 65 of the Labour Relations Act (Cap 54:0L) of the Laws of Malawi' which governs appeals that come from the lRc to the High court, is extremely fundamentaf., llT. its observation, this provision first and foremost recognizes decisions of the rRc as being finar and binding. lts further qbse.rVdtion was that the provision in question only allows appeals to be .i'.. :. I taken up against lRc decisions in very lirnited circumstances as pieSeiibed within it. As such, the Court found it imperative, before it could make any headway in the appeal that was before it, to Iook into the question whether the said appeal was, as perthis provision, qualified to be entertained in terms of the applicable prescribed circumstances' Bearing in mind the prescription in the material provision that makes it only permissible for any party to appeal from the IRC to the High court if ance such party has with that Court's decision either concerns a (s) of law or a question(s) of jurisdiction, the Court was of the mind that it was incumbent on the appellant, right from the outset of the aiibeiiiiii''t'r.d brought up, to clearly point out which law or which jurisdiction was in issue in it. The court next went on to say that having both listened to the appellant's arguments in the appeal and gone through its submissions thergjn, its view was that that party's focus in the appeal was on the factual and evidential issues in the judgment under appeal and not on nt| of law or of jurisdiction. This focus, it observed, was on the rocesses of the appellant's disciplinary mechanism, which are not questions of law. lts judgment on these issues was thus that the decision the,tRC had reached on the same was final and binding' The Court then further observed that a tendency had emerged of appellants inJRC,C?ses clothing their grounds of appeal as if they were based on law when nothing of the sort can be seen beneath the veil. In consequence, [tWA]s ths,,Gourt's conclusion that the appeal that had come before it did not r;il within the scope of Section 65(2) of the Labour Relations Act. lt is on this account that the court then went on to dismiss the appeal in full as earlier, mentioned and to direct that each party meet its own costs. Requirement for leave to appeal in second appal As turned out to be the case, following the High Court's pronouncement of the above judgment, the appellant in the matter was once again aggrieved with the outcome that was pronounced. lt thus launched the present jp'peal against the said High Court judgment. This appeal being, so to speak, a second-bite in the process of appeals, the lawl as we understand it, would not allow us to accommodate it, unless it can be shown that it'haf been legally sanctioned to be so brought before us. This legal sanction must come by way of the appellant either obtaining the ,l.eave of the High Court, or the leave of this Court, to so appeal. Incidentally, we notice that in this case the appellant did take the p;,gcaution of looking into this requirement. lt is clear from the record of the matter that JTI Leaf (Malawi) Limited, the appellant herein, duly obtained requisite leave to appealfrom the High Court.2 As such, we find ourselves satisfied that the appeal before us has no leave impediments against its being dealt with and determined by us' ; l:l t', 1 ;'-r L1 t ' Whgthef,appeal should be determined if inchoote Now, even though the appeal has passed the leave test, and we can from that angle properly proceed to adjudicate on it, we need to observe that there is a deVeloiiment in our jurisprudence that could still operate as a hindrance against us proceeding to so determine this matter. As must by now be common knowledge in legal circles, for a while now we have in this Court adopted a new way of handling civil appeals. We only receive i ta::3iaph (a) ofthe second proviso to section 21 ofthe Supreme Court ofAppeal Act (cap 3:01) ofthe Laws of Malawi 2 Formal order of Leave to Appeal as granted by Hon Justice M.c.c. Mkandawire dated 13th october, 20L5 on High Court Record ii itrt \.rt ,' lli "' and entertain appeals on matters that havF been dealt with and determined to completion. Our stand is that appeals must only be taken up in matters in which there is a 'final' judgment and nothing less. The language we have generally used is that we no longer deal with 'iiichoate' appeals. !n this regard, we have a growing chain of precedents, such as Aon Maiawi Limited vs Garry Tamani Makolo3 and Toyota Malawi Limited vs Jacques Mariettea showing that we have closed the door on what may be referred to as' 'piecemeal' appeals i.e having multiple appeals on isolated issues, but all of them arising from one and the same case. lt real'ly"'became tiresome for us to be handling say an appeal on an interlocutory matter in a given case, and then another appeal in it on the ,G;ouirtisdetermination therein only on the question of liability, and next a-ite ;- that entertaining yet another appeal in the same matter in regard to the assessment of damages in it, etc almost od infinitum. ln such instances, br7",,the"time we got to the stage when we could say that we were finally done with such a case, we would be wholly exhausted with i'b'f,[e,n€-,e our change to the stance that we should only be handling cases on appeal when they have been fully and finally determined and €Xhaggt*ed,in the Court below. In the present matter, as already indicated above, the appeal the appellant took up in the High court was so taken up before the parties had agreed ori"h'bw they would calculate the awards the Court had made in favour of the respondent (then plaintiff), as well as before any 'ass6Edifi'tint of the said awards had been done by the Court of first instance. Strictly speaking, therefore, that appeal was inchoate. ' llscA. Civil Appeal No.16 o 2016 (unreportd) 4 MSCA Civil Appeal No. 52 of2016 (unreported) LlKewlse,'now as can easlly oe conTlrmeq Trom Ine appeal recorq, wnen easily be confirmed from the appeal record, when Likewise, now the High Court dismissed the appellant's appeal, the appellant rushed in lodging its second appealwith this Court. Again it did so beforethe issue of damages and the other due awards had been revisited and concluded either by agreement of the parties or by an assessment of the Court. lt in the circumstances naturally follows, therefore, that this appeal too was brought prematurely to this Court by JTI Leaf (Malawi) Ltd. lt thus p|ainly,,'also fits into the category of appeals that we call 'inchoate' in this ecl u rt. This notwithstanding, we have taken the decision to proceed with a determination of this appeal. We have so decided because, even though the appeal is inchoate, it was both filed and argued well before this Court hact 'developed and adopted the jurisprudence not to hear and determine such type of appeals. As such we cannot apply that jutisb-iuAence retrospectively to this case just because we have delayed in delivering our judgment in it. As it is, therefore, this will be one of the last few, if not the very last appeal, that this court will go ahead and determine, despite it being an inchoate or premature appeal. The frami7o of the grounds of oppeal . .., .'. "l Tfie aiopeal herein having survived the leave to appeal test, and it also having survived the possibility of being rejected on account of its immaturity, we found it important to peruse and vet the grounds of appeal that the appellant has filed in it. As per the notice of appeal,s initially the appellant raised fourteen grounds of appeal in the matter. In I ep res-tzt of the record of appeal irr. our recollection, however, the appellant abandoned s_ix of these grounds alth'e hearing of the appeal. lt thus only remained with eight grounds, which it duly argued. For the record, the abandoned grounds of appeal were the 7th, and then the l-0th to the 1-4th in the notice of appeal. We need, w€ must say, to upfront confess that our preliminary survey of these remaining grounds of appeal has given us some anxiety and misgivings about the manner in which the majority of them have been framed. The framing of grounds of appeal is an area governed by rules of l, .. i '..:' i.\ :, t/ proceduFe. Bearing these rules in mind, we have wondered whether some of the grounds of appeal that have been tabled before us are up to the standard that is set and expected by the law. lt is for this reason that we found that it would be prudent for us to go through the process of first vetting each of the argued grounds of appeal against the applicable F.ubs before we can commit ourselves to determining any particular groun$(s,). l, ' ' ,-a I We shali thus have to so proceed because it is our belief that the rules that are available for the framing grounds of appeal were not put into the procedures of this court for decorative purposes. They were meant to be followed, and they were for the purpose of making appeals understandable and thus easing the work of the Court, as well as that of tf',e' p5rties, in the handling of the appeals they relate to. lt is this trust, that will help us to determine, in a sound and reliable exercise, w€ W"v,' whether the prima facie anxiety and misgivings we have entertained with some of the appellant's grounds of appeal are, or are not, well founded. '., : ti'l- order Iil rule 2 of the supreme court of Appeol Rules At this juncture in our judgment, it is important that order lll rule 2 of the Supreme court of Appeal Rures (hereinafter referred to as scA Rules) be rnentioned and highlighted. rt is a legal provision that is directly material and relevant in the exercise we are now to undertake' As we had occasion to emphasize and to demonstrate in Dzinyemba tlaTirza Enterprise vs Total (Malawi) Ltd6, it is vitally important that appellants observe and conform with this provision whenever they are faced with the obligation to draw up grounds of appeal in matters that are to come to this court. The critical thing is that if appellants choose to ignore the reqLjirements this provision has elaborately laid down, they do so at their own risk. ln such event it is open to the court to find the filed grounds of appeal w.anting. Starting with sub-rule (2) of the order and rule in question, as sub-rule (r): is merely on how the notice of appeal and its grounds should be formatted, it will be seen that it is a legal requirement that whenever an abpeltan't'intends in a ground of appeal to allege a misdirection or an error of law, that such party must clearly state the particulars of such a misdirection or error. The implication of this sub-rule, if we may say so' is that for any appellant to merely assert a misdirection or an error of law, without giving due particulars of such misdirection or error, is to raise an emptV, or a vacant, ground of appeal' '; .. rooking at sub-rure (3) of this same provision it wiil be seen that it N ibn' .ou.hed in the peremptory word s: "The notice of appeal sholl h set forth conciselv and under distinct heods the grounds upon which the appellant intends to rely at the heoring of the appeal without anv 5 MSCA civil Appeal No. 6 of 2013 (Unreported) i -!1:i:' t' ;.- . I ' qrqument oi norrstive ond shall be numbered consecutively" (emphasis supplied). Our view is that in what it demands to be"done or not to be done, this sub-rule is so blunt and clear that it does not leave any room for doubt or speculation. An appellant that does not set forth concise grounds of appeal, or who fails to set them under distinct heads, or who inrports argument or narrative in his/her grounds of appeal ought to know that he/she is doing what is not permissible, and should therefore be ready for the,:consequences. Indeed, as we examine Order lll rule 2 a bit deeper, it is to be observed thltiunOer its sub-rule (4) save for allowing an exception on issues of weight of evidence, this provision does not permit the filing of any ground'of appeal that is vague, or which is in general terms, or one which does not disclose any reasonable ground in an appeal. lf an appellant files any such ground, therefore, room exists that it can be struck off either of the C6u'it's own motion or on an application for such a remedy. Vetting ground one of appeal against Olll rule 2 SCA Rules Wq start our vetting exercise with reference to ground one of the Fppella,nt/s appeal. lt reads:'The leorned ludge misdirected himself on what constitutes a "question of law" for purposes of on appeol under section 65(2) of the Labour Relations Act by proceeding on the basis that in order for the appeal to qualify os qn oppeal "on a question of law or jurisdiction", under section 65(2) of the Labour Relations Act, the o'ppelfortt had to identify o particular law or jurisdiction and demonstrate that the lower Court hod erred on that particular low or jurisdiction when the. law,r,equired the appellant to oppeol on question of law or jurisdiction oni not a particulor low or jurisdiction.' To begin with, this ground of appeal is a mouthfur. lt is also repetitive in its expression of agony, and it is far from being concise' lt in fact more reads rike a submission than rike a ground of appear. rt is fut of argument' and it is also full of narrative. lt further appears to us to unduly dwell on semantics. To be quite honest, it more tells us a story of the appellant's griefthanit|aysdownagroundofappealthatcouldbeseenasbeingin rine with the clear requirements that we have seen in order lll rule 2(3) of the scA Rures. Thus, ail we see when we read through this ground of appeal is thal it was rather emotively framed against the holding of the court that it purports to attack. This ground of appeal is, in our view' defiant-qfthedictatesoftheprovisionintheru|esthatwehavejust tested it against. rt has, as a resurt of its being so poorly drafted' been qtrlte a,;5!'rq88le for us to make sense out of it' ile ti is as it ffidy, we observe that despite the crowded form in which it has been presented, this ground raises the point that the Court below erred in raw when it required that beyond merery asserting that the IRC had committed errors of law, it further pronounced that the appellant should have felt duty-bound to identify and particularize the law the lRc nrd so alregedry erred against. we incidentally notice that the appellant atl'O'rd'idbs'this very complaint, although in shorter form and in slightly dlffe;ent language, in its ground four of the appeal' These two grounds being on one and the same point, therefore, instead of us rushing to condemn ground,one for the shortfalls we have just observed in it' when we wilr definitely be meeting the same grievance it raises by the time we ggt Io-.g!.ound four, We believe it wiIl make Sense for us not to dismiss ground one out of hand, but to instead vet it side by side with ground four.,Thalway we will come to a single determination on both of them Silrtna,0tiestion whether or notthey at all raise for us a ground worth considering on the merits in this appeal' combined vetting of grounds one and four of appeal against olll rule 2 SCA Rules Groundfouroftheappea|istotheeffect,andwequote: fThe le.arned Judge erred in lqw in imposing a duty on the oppellont to sut on the outset which lqw wos in issue when section 65(2) of the 'point Labour Relations Act does not impose such duty on the Appellant'" :l: ', . Uponjuxtaposingthisgroundnexttogroundone,itbecomesp|ainaSWe have already observed that arthough they differ in the sense that ground four,,h3i been expressed in shorter and less vocal language' the two of t'rrem in reality just carry one and the same complaint from the appellant' The gist of this shared compraint is to the effect that the learned Judge in tt,e Court below went outside the law when he observed in his judgmentthatinframingitsgroundsofappea|onerrorsof|aw,the appellant ought,f,o have particularized the law or the jurisdiction it was claiming that the IRC had erred on. rt is this position of the learned Judge theappetlantreferstoasanerroroflawinitsunderstandingofwhat 5ection65(2)oftheLabourRe|ationsActentails. Looking at ground four on its own, it to us looks relativery well framed' vviien u,.*.0 under the same rens of order ill rule 2(3) as we have done with ground one, the prima facie impression we get is that it appears to be a relativ€'ly su'und ground of appeal' lt is concise' it falls under a distinct head, and it appears to be without either argument or narrative' As'surh;,despite the disturbing manner in which the complaint this g.uno ,"p.,t, has come out in ground one, it remains a comp|aint that tz j'l.i' i ,l'1.''1'" cloes not deserve to be dismissed out of hand brecause of its Order lll rule 2(3) shortfalls in that other ground. lt thus needs'to be further vetted under the remaining sub-rules of this Order and rule before we can decide whether or not to reserve it for a determination on the merits in the appeal. Looking more closely therefore at the point these two grounds of appeal jointly raise, it strikes us that the subject they so touch on is well taken fare of by Order lll rule2(21of the SCA Rules. This sub-rule is part and parcel 6f th'e procedural rules all appellants ought to be guided by as they drarry up their grounds of appeal. ln our view this provision is very clear in what it says. lt reads: "lf the grounds of oppeal allege misdirection or error in law the porticulars and the nature of the misdirection or error sholl be clearly stated." We wonder whether its open meaning would hAve begn lost to the appellant had the said appellant had recourse to it. lri the event we very much doubt the appellant could then have persisted in,,the thought that the Court had acted in error of law when it demanded that the appellant should have given particulars of the errors of law it was asserting. We take it that it really is standard practice in courts that exercise appellate jurisdiction not just to entertain grounds of appeal because they vacantly allege errors of law when they fall short of beefing qp,suph'qllegations with due particulars of the errors of law alleged. In our judgment, therefore, with the quoted sub-rule being so clear on this is5ue;,I:he,,appellant should not even have drawn up this grievance, whether in ground one or in ground four or in both. lt purports to attack the learned Judge's decision as an error of law when in fact it is a decision the law overtlv $upports. As such, this ground of appeal is empty as it seeks to challenge as an error of law what law actually permits. In the Ei.rcupStances, it is not a ground that can be said to be raising any reasonable cause for appealing on this point. In the result we find that under order lll rule 2(4), it is not a permissible ground of appeal. lt accot'dingly deserves to be struck out, and we so now strike it out both at ground one of the appeal as well as at ground four. vetting ground two of appear agoinst olil rule 2 scA Rules Ground two of the appeal has been couched in the words: "The leorned Judge erred in law in hotding thot the appeat did not fal within the scope gI |Tctign 65(2) of the Lobour Relotions Act as it wqs on question of fact.,, Vis-d-vis this ground of appeal, we think that in general it complies with ;t,heuryf p;, that govern the drafting of grounds of appeal. lt alleges an error of law, it particularizes the error the appellant has issues with, it is concise, and it is neither argumentative nor narrative. lt is also neither vague nor general. lts concern, we take note, is with the High court,s interpretation of the expression "question of law" under Section 65(2) of the Lqbour Relations Act, which interpretation resulted in that Court excluding the appellant's appeal from the scope of that provision. In i9 our view that the ground in question does properly disclose ;hgrt,,!! what can be seen as a reasonable ground for appealing. We thus have no problem in accepting it as a ground of appeal that is compliantwith the requirements of order Ill rule 2 herein, and as thus being a permissible ground of appeal thereunder. In consequence, we will retain it on the appellant's list of grounds of appeal, and will in due course determine it on the merits. ln light of what has so far happened it therefore serially .ngry bgcoumes the appellant's first ground of appeal in this matter. t- vetting ground three of appear agoinst olll rule 2 scA Rules As for ground three of the appeal, it asserts that "The learned Judge erred in law in not finding questions of law in the Notice of Appeal when he should hove first looked to the grounds of appeal in the Notice of Appeal for the existence or otherwise of questions of law in the grounds of oppeal specified therein." We have read this ground of appeal over and over a number of times, but have found ourselves struggling to make any sense out of it. We actually see none. Obviously, if what the appellant is suggesting by this ground of appeal is that the learned Judge did not even look at the grounds of appeal that were before him before concluding that they did not raise any questions of law, then to begin with it is just being aigumentative for the sake of it. lf the appeal from the IRC was called anC heard by the Court below, which it was, and if in its judgment the Court below clearly indicated that it had looked at the grounds of appeal and was even..able to summarize the contents of the said grounds of appeal, then it was needlessly rude and idle for the appellant to allege in lhis ground of appeal that the learned Judge had not even bothered to look at the grounds of appeal. Indeed, the judgment goes further to lndicate,,Irhat apart from listening to the appellant in its presentation of that appeal, the Court went through the appellant's submissions in the appeal. We tend to think that in its suggestion that the Court below went through all thegg steps in its handling of the appeat it was seized of without even looking at the grounds of appeal the appellant had tabled beforp, it,, this ground was framed, not for purposes of raising a point of iaw, but rather for the mere purpose of undermining the integrity of the CqHrt ip,,the,discharge of its judicial functions in that appeal. .."i ", .:,!n To us, as we have just hinted above, to insinuate that the Court below heard and determined the appellant's first appeal without even looking 9t, the grounds of appeal is not to suggest that the said Court either corlmitted an error of law or an error of jurisdiction. Rather, doing so p.implV, raiLes questions about the professional competence of the lejrned :ujge that dealt with the appeal. We honestly do not think that such rnatters fall within the boundaries of the type of appeals we are meant to deal with. Appeals in a case like this are supposed to be based on the contents of the judgment being challenged, and they must isolate Iegal or jurisdictional errors therein rather than actions or omissions of the Judge that don't fall within the parameters of legal or jurisdictional error in his.manner of handling the matter. For us, therefore, this ground qf appeal is empty as it does not appear to us to disclose any reasonable cause/ground for appealing, and it is therefore not permissible under order lll rule 2@l of the scA Rules. short of raising a reasonable ground on which we ban meaningfully adjudicate we, in respect of this ground of appeal, also of our own motion strike it out' Vetting ground five of appeal against Otll rule 2 SCA Rules H,aviqB.lFlready vetted ground four of the appeal alongside ground one, we now move from ground three to ground five. The said ground five goes: "The learned Judge misdirected himsetf in lqw when he failed to distinguish between o question of law and o question of foct thereby lailing to appreciate that the court in considering a question of law hos to consider the sqme in the context of facts'" i.'.:,, ..,. .'::i'' rtpon'examining this ground of appeal, we have found ourselves drawn to it just the way we were drawn to ground two of the appeal, which has since become ground one in the matter. LikeJhat ground, it alleges an error of law, particularizes the said error, is concise, and is without argument or narrative. Also, it is neither vague nor general, well apart from the fact that it succeeds to disclose what in our view amounts to a reasonable ground for appealing. Indeed, as the parties will recall, we specifically urged them at the hearing of this appeal to ensure that they address us sufficiently on the point raised in this ground of appeal. We, in the result, find this ground to be in line with the requirements of Order lll rule2,and we thus accept it as a ground we should attend to on the menits. As a result; it now serially becomes the appellant's second ground of appeal in this matter. vetting ground six of appeol against ortt rule 2 scA Rules h,,ground six of its appeal, the appellant has framed its grievance in the words: "The leorned Judge erred in lqw by looking ot o particulor law or iurisdiction in the oppellant's submission ond concluding that since these only focused ,".on, factuol and evidential issues and 'on the internal processes on [sic] the disciplinory mechanisms of oppellont' (ond did not mention o particulor law or jurisdiction), the oppeol did not raise o question of law when he could not exomine the questions of law without q.g i d g:rin g t h e f,a cts. " 9o wi'th all due respect, this ground of appear, well apart from being expressed in slightly different words, just repeats the complaint that constituted pa.r'tof what is now the struck out ground one of appeat and the complaint in the also now struck out ground four of the appeal. This aside, it carries these repeated lamentations in submission form by completely disregarding what the rules say about the framing of grounds of appiea[,'As can be seen, it is not concise, and it is full of argument and narrative. Being a repeat of grounds of appell that have been found wanting and been struck out, and being offensive to both sub-rules (2) and (3) of order lll rule 2 herein, ourview isthat it is equallya ground of 'appeal that we cannot accommodate for purposes of merit-assessment at a later stage in the judgment. we give it the same fate as we have to the grounds of appeal that it is related with. Equally, giVen therefore, we strike it out under order lll rule 2(a\ of the relevant rules of procedur;. ""llier Vettingground eight of appeal against Otlt rule 2 SCA Rules The next ground of appeal that falls due for vetting happens to be ground etgfrt. "'Th:is is because, ds we have already mentioned above, the appellant abandoned its ground seven at the hearing of the appeal' Ground eight of the appeal reads: The leorned Judge erred in law when he dismissed,the appeal on the ground thqt he did not see o question of jurisdiction when the appellant's appeol wos not questioning the idtfsdltitfon of the lndustrial Relations Court to determine the dispute between the appetlant and the respondent'" The firrttobr"rvation we have on this ground is that it is very petty in the grievance it purports to raise. From what we see in the judgment on appeal, the origin of this ground appears to emanate from the following series of statements in the High Court judgment. The Honourable Judge started by referring to Section 65 of the Labour Relations Act as providing in';ttti:.iz ) A decision of the Industrial Relations Court moy be appealed to the High Court on a question of law or iurisdiction within thirty days ,of the'' decision being rendered." Next, after discussing what he understood section 65 to be saying, and applying that to the appeal of lr tr the appellant in the light of the arguments and,*submissions presented, the Honourable Judge said: "...1 cannot see the question of law or jurisdiction which the lndustrial Relations Court had erred on as stated in the appeal" and he then dismissed the appeal in its entirety. The way the appellant has put his grievance in this ground, the im'pression conveyed is as if the Learned Judge dismissed the appeal it was seized of on the sole ground that he could not see in it any question of jurisdiction. This is simply not true. As just quoted above, the Learned Judge said he cijuld not see a questio n of law or iurisdiction. Dismissing the appeal on this account is totally different from dismissing it purely on the'basis that the court could not see a questio n of iurisdiction as the appellar,rt's eighth ground of appeal suggests. The way we see it, therefore, is that to come up with this ground of appeal, the appellant had first to twist what the court said so that it could find a fault. So, in a w?y, the appellant invented its own version of the judgment by isolating the issue of jurisdiction from the issue of law in the Honourable Judge's expression so as to give birth to this ground of appeal. To us that step is ,n,ocouth, and it deprives this ground of the element of reasonableness gq ? gro!lng of appeal. As such it ceasesto be a valid ground of appeal. looking at the way the Court used the phrase question of low or Furth€f, jurisdictian in its concluding statement, it is obvious that it was using the same in the very manner in which Section 65(2) of the Labour Relations Act uses that phrase. One might wonder, therefore, whether in writing a judgment a Judge is not free use the phrases the law uses in the very minnilr they appear in whatever provisions the Judge happens to be dealing,with in any given case. From the lamentation the appellant has Bllojeeted through this ground, it appears to hold the view that because its appeal only cited errors of law then the Judge should never have 1_9 alluded to the word 'jurisdiction' in the same breath as the word 'law' when referring to section 65(2) of the LRA, even though in that provision they comfortably appear side by side and are ordinarily read in the same breath. To say the least, the appellant's complaint amounts to absolute pettiness and pedantry. our conclusion here is that the appellant had run out of wh'at to legitimately complain about against the judgment of the court.,below. He must have thus hatched this ground by picking and choosing amongst the words the Honourable Judge used just to increase the number gf the grievances it wanted to air in the matter' we cannot accept such an empty and petty ground of appeal to be one presenting us with a reasonable cause for assessment of merit-content as we proceed with the judgment. Accordingly, we under order lll rule 2(4],' strike"iI out. iettinij ground nine of appeal agoinst Ottl rule 2 SCA Rules We now finally move to ground of appeal number nine, which at present stands in the notice of appeal as the appellant's last ground of appeal' The appellant, we recall, in wholesale fashion abandoned grounds seven' ten, eleven, twelve, thirteen, and fourteen on the day we heard the appeal. Thus our vetting exercise having reached ground eight, it will .o.ou to an end once we tackle ground nine. In this ground, the appeilant's grievance has been stated in the words: "The learned Judge erred in law in prematurely dismissing the appellant's oppeal in its entirety without reviewing the decision making process of errors of law when his function, on appeal, was to review the administrative decision- moking process of the !ndustriat Relotions court for its legolity or errors of law, not the merits of the decision'" Reading this grievance of the appellant, it is undeubtedly clear to us that it does not raise a reasonabre ground of appear. The legal concepts and principles it espouses are those that guide Courts when they are faced with apprications for judicial review. what raw permits the appellant to borrow those principles and concepts for use in an appeal arising from an ordinary civil suit is far from clear to us' As we observed at the outset' tlris matter commenced as an employment suit in the lRc' tt then graduated to the High court as an appeal against the IRC judgment' lt is now in this Court, again as an appeal, because the appellant was aggrieved with the High Court,s judgment. At no point in time did this matte,(beginOs,orconvertto,ajudicia|reviewprocess. How,the appellant in this ground has ended up viewing it as a proceeding in which the High court was supposed to exercise its judicial review jurisdiction by ,rcviewing the decision-making process of the lRc is something that has come from the brues as throughout the three revers of court this case has been to it, has no foundation' The way we view this ground' therefore, it does not contain any reasonable grievance that would juqtify the appellant slotting it into this appeal' In the circumstances' we have no difficulties in letting it join the bandwagon of rejected grounds of appeal.in the matter. we accordingly so strike ground nine of appeal out for eiffending Order lll rule 2@l of the SCA Rules' SummarY of the vetting exercise It ernerges from ihe vetting exercise that we have just concluded that ?-n|ylwogroundsofappea|remainforustodea|withonthemerits. These are what were initia||y the appe||ant,s grounds two and five of the gppeal,,. Pqqt the appe|lant,s voluntary withdrawal of six grounds of appeal, which left eight grounds of appeal in existence' we have during the vetting exercise struck out six more on account of their being at 21, variance with the requirements of different sub;rules of Order lll rule 2 ef the SCA Rules. In consequence of this, just as happened at the time the appellant withdrew some grounds of appeal, we once again now have had to serially re-arrange the surviving grounds of appeal. Thus, what was ground two of appeal has now become ground one, and what was ground five of appeal has now become ground two of appeal' Our way forward, therefore, is to direct our focus towards the surviving two grounds of appeal, and to determine them according to such merit- content as theY may have. AnolyzinQ'dnd determining the new grounds one and two of appeal : Just to recap, in what is now ground one of appeal, the appellant is claiming that the High Court erred in law when it held that the appeal that had been brought before it only raised questions of fact and not of law, and that it was thus outside the scope of Section 65(2) of the Labour Rslations Act. As for the current ground two of appeal, it is the one in which the appellant is asserting that the High Court misdirected itself in l'aw w:tr6h'iii its judgement it failed to distinguish a question of law from a question of fact, and that it thereby failed to appreciate that in considering a question of law a Court must do so in the context of facts" The way we tbok at these two grounds, they are very closely linked. The grievance ground one starts, the second one compliments or otherwise completes. ln doubting the High Court's categorization of its grounds of a ! gs rgising questions of fact rather than questions of law in the first g d,':the appellant in the second ground basically continues with and completes the same complaint. This it does by attributing the alleged erroneous categorization of its grounds of appeal to a failure on the Court's part to appreciate (a) the difference between questions of law play in the and questions of fact and (b) the role fqcts _must determination of questions of law. Put more simply, the combined questibn these two grounds raise is whether it was not a legal error for the High Court to conclude as it did that the appellant's appeal was on questions of fact and not of law, and whether in coming to that conclusion it ought or ought not to have taken matters of facts into consideration. lt is thus best, we think, that the two grounds of appeal be dealt with simultaneouslY. Appeltant's orguments on the remaining two grounds of Appeal ln the oral, presentation it made in its appeal, the appellant placed r:eliance on a number of processes that it had filed. These included the grcunds of appeal, the skeleton arguments it had filed on 5th September, 20!6, and a list and bundle of authorities as well as a notice of two additional authorities that it filed on l-Sth November, 20L6. Post the hearing of the appeal, the appellant supplemented its arguments with written submissions, and it also amended its list of authorities. In a nutshell in its arguments, the appellant took issue with the High Court's hol{inlg that contrary to Section 65 of the Labour Relations Act the grcunds of appeal it had filed were on questions of fact and not on questions of law. lt even complained that the learned Judge in the High Court did not even look into the merits of the appeal before dismissing it. On lts part, the appellant was insistent that its appeal did raise qgestions of law, and that it is thus at a loss how the Court could have heid that they were not compliant with the requirements of Section 65 o,,f the Labour Relations Act. euoting Section 65 in full, the appellant equated its sub-section (2) on appeals being p1fissible only on questions of law or jurisdiction to Section 44 of the Administrative Tribunal Ac! l975 of Australia. That provision in its sub-section (1) provides for appeals from an Administrative Appeals Tribunal to the Federal Court of Australia in the following terms: "A porty to o proceeding before the Tribunal mqy appeol to the Federol Court of Austrolio on a question of law from ony decision of the Tribunal in that proceeding." He then next referred to the case of Flaritos vs Cornmissioner of TaxationT in which he pointed out a quotation by thg full court from the decision in P vs Child Support Registrars in the words: "lt is important to emphosize qt the outset that the appeal, being instituted under 544(1) of the AAT Act, is confined to 'a question of law'. This does not, of course, meqn that the reoch of 544 is llmited tp. g,uestions of law divorced from the need to look ot focts..." Adcllng on to this, the appellant quoted from paragraph 182 of the Haritos judgment the statement: "The full court hos accepted thot a determination of a question of fact by the Tribunal may give rise to a question of law". He further also quoted from paragraph zOL of that sarne case the dictu m: "lt ffioy, however, be the cose thot in exercising its lurisdiction under 544 of the AAT Act the court has to consider how the TfibundlhYi| gone about its fact finding and the choices it has made in order for the Court to assess, in deciding a question or questions of law, whether the Tribunal has stayed within the zone of discretion. For this purpcse, the "cou,rt does not consider whether the Tribunal should have mode o particulor finding of fact but whether it may lowfully have done so." The last judgment he referred to was that of Lord Carnwath in Jones vs First Tier Tribunals, in which at paragraph 46 is a quotation from an articl,e,"ent'ltled Tribunal Justice in A New Start [2009] PL 48. The 7 t2a-t5j FcAc 92 e Qo1,4l FcAc 98 [2013] uKSc 19 s quoiation goes: "... Accordingly, such Tribunal,_ even though its jurisdiction is limited to 'errors of law', should be permitted to venture more freely into the 'grey area' separating fact from low, thsn on ordinary court. Arguobly, 'issues of law' in this context should be interpreted os extending to any issue of general principle offecting s pe ci a I i st j u ri s d i cti o n." Building on the similarity between Section 65 of the LRA and Section 44 of the Australian AAT Act on the subject of appeals on questions of law, the appellant submitted that the determination of the Federal Court of Australia in the'Flaritos matter should persuade us on the approach to adopt when determining this appeal. lts view was that there is no local case authority on the subject and its argument, therefore, was that it is plain from that Australian case that a court may consider the facts in orden to satisfy ltself on whether an appeal raises questions of law. Thus, the appellant asked that the Court should be persuaded that in highlightingthe facts to the court below, the appellant did not mean to raise questions of fact, but rather it did so to enable the court to appreclate questions of law in the context of those facts. In conclusion the appellant submitted that the court should not consider questions of law in isolation from the facts. Respondent's orguments on the remaining two grounds of Appeal In nelation to the appeal, the respondent had skeleton arguments which he fiied on !7th November, 2016. He adopted them before orally presenting an abridged form thereof. He supplemented these with submissions that he filed after the hearing of the appeal. On the issues in this appeal, his view was that they are quite narrow. He thus opted to of them together. His first observation was that Section 65 of a,lg.ue 3!,1 the LRA is, clear on the point that appeals from the IRC must be on questions of law, and not on questions of fact. In this regard he further observed that it is equally clear that in IRC matters questions of fact exclusively lie within the jurisdiction of the lRC. As for the question whether on a consideration of questions of law in such matters an appeal Court should also consider questions of fact, the respondent preceded l:ls submission with reference to some authorities on the subject. From Black's Law Dictionary 6th edition the respondent extracted the definition of the expression 'a question of law' as being a question that concerns the legal effect to be given to a set of undisputed facts. He then quoted from the Zimbabwe Supreme Court case of Muzuva vs United Eo'ttlers(Pvt) !-td10, the statements that depict 'a question of law' as ".. a question as tc what the law is. Thus, an oppeal on a question of low ffie'Lnrls an oppeal in which the question for orgument and determination is whatthe true rule of law is on o certoin motter..." Next, the respondent acknowledged that when a matter goes from the IRC to the High Court on appeal it necessarily carries with it findings of fact hy the lRC, which are final and binding. The said facts, he contended, reach the appellate court as'undisputed'facts, and as perSection 65(1) cf the'l-abour Relations Act, the appellate court cannot interfere with thenn. ln support of this point he then referred to the Malawi Supreme eourt 5f nilpeal decision in Stanbic Bank Ltd vs Tukula11, in which he hisi;itghted the point that the Court held that in such cases a finding on a matter of fact falls cutside the jurisdiction of the appellate court. rr 1994 (1) ZLR 217(S) 11 [2006] MLR 401 Gelng further, it was the respondent's argum€nt that even where the appeal is grounded on the assertion that the judgment was against the weight of the evidence, the duty of the appellate Court would be contined to merely examining the trial court's fact-finding process in order to check if the Court took into account relevant evidence before making its findings of fact. Where the trial court duly analyzed the evidence and gave reasons for its preference of the evidence on which ts base its decision, his stand was that the appellate court cannot interfere with the resultant findings of fact. In such case too, the respondent argued that on an alleging that the judgment is against the weight of the evidence, an appellant is supposed to point out where exactly the trial court erred. In the instant case, the respondent said the appellant did r;ct do so in respect of that ground. It is following the above arguments that the respondent submitted that the IRC being the finat and binding court on findings of fact, the appeal court had no jurisdiction to interfere with its findings of fact that were analyzed with reasons given for preferring the evidence that influenced the said findings. He further submitted that the appeal Court's only business was to restrict itself to questions of law, i.e questions through which it could have given legal effect to undisputed sets of fact. Questions of fact leading to findings of fact being matters for the exclusive jurisdiction of the lRC, the respondent finally submitted that the appgal court had no jurisdiction at all to consider them, its duty being tolnterpret and apply the law on the factual findings of the lRC. All in all, the respondent was of the mind that the appellant did not raise any point of law in any of the grounds of appeal it filed in the appeal before the High Court. Re-hearing feoture in the oppeal Fiavlng gone through the arguments the parties pr-esented to us with in this appeal, it is high time we reminded ourselves about the procedure we are calf ed upon to follow when hearing appears. of cardinal guidance to us is order lfl rule 2(L) of the supreme court of Appeaf Rules, which anaong other re uirements, provides that atl appeals before us should proceed by way of rehearing. A rehea ring, as we understand it from existing authorities, consists in us virtually putting ourselves in the shoes of the court below, ancl reviewing the material that was before it in the appear, and then in the fight of the grounds of appear that we must resolve asking curselves whether or not we would have come to the same conclusions as the court below did. see: professor Arthur peter F'tirtnarika and The Electorat commission vs Dr saulos Klaus chilima and Dr Lazarus Mccarthy chakweral2. lt wilf incidentally be observed that in that case we took benefit of and quoted a dictum from earlier decision of this court in steve chingwatu and Redson ehabuka and Hastings Magwiranil3. The of that judgment, and it reads: DHL lnternational v said passage is at 3gg "Finglly, we beor in mind that on appear to this Court is by woy af reheoring which basicaily means that the appeilate court considers the whole of the evidence given in the court below and " MSCA Constitutional Appeal No. 1 of 2020 (Unreported) 19 i2o07j viR ssz the whole course of the triol; it is qs a gerrcrol rule, o rehearing on the documents including a record of the evidence. The cose of {Vlsernwe v City Motors Limitedta is to that effect. tn the cose of coghlan v cumberlafrdts, cited by counsel for the respondents, Lindsey MR, stated: 'Even where".. the oppeol turns on o question of fact, the court has ta beor in mind that its duty is to reheor the cqse, ' , ,,.and the court must reconsider the materiqls before the iudEe, with such other materials as it mdy have decided to admit" The court must then mqke up its own mind, not disregarding the judgment appeoled from, but carefuily weighing and considering it, and not shrinking from overruling it if on full consideration it comes to the conclusion that it is wrong."'. It will be recailed in this case that after hearing the appeal, the High Count found itself unable to delve into its merits and to determine it on that basis" This is because, from a combination of hearing the appeal and a reading of the appellant's submissions in the said appeal, it came to the conclusion that in terms of Section 65(2) of the Lab,our Relations Act what was before it was not a permissible appeal. 14 15 MLR 302 1s (1898) t ch704 It fcllows, therefore, that in our rehearing of th*e present appeal, we too cannot go overboard by delving into the merits of the appeal the first appellate court did not delve into. Doing so would in effect be tantamount to us taking over that appeal and virtually deciding it on that court's behalf. we ought, therefore, in the spirit of rehearing the appeal, to just limit ourselves to reconsidering whatever was before the court below, and in light of the arguments we have been presented with to then make up our own minds on whether to agree or to disagree with the conclusions that were reached by the court below. whetherfacts to feature in an appeal on o question of law, and extent af featuring if any We should like at this juncture to first thank learned Counsel for the appellant and learned Counsel for the respondent for having been very resourceful and industrious in bringing up to us enlightening authorities and detailed arguments on the question whether on a consideration of questions of law in an appeal like this one, matters of faet lrave any role to play and, if so, to what extent. We do cherish the fact that their efforts have yielded beneficial fruits for us in the eoL!rse of preparing our judgment. An observation we have, however, is that much as in their arguments the two sides appear to have come to cpposing conclusions, the authorities they each cited to us in support of their opposing stands do not actually disagree with each other. Rather, the way we see it, the authorities from both sides of the appeaf answerthe question in issue in the same manner vis-o-vis what in the circumstances is the correct legal position. To us, what is clear beyond any doubt in this appeal, and both the opposing parties to the appeal fully agree on it, is that as per Section o5 of the Labour Relations Act, decisions of the IRC on the facts are final and binctring, and that appeals from that Court are only permitted if they are either on questions of law or on questions of jur"isdiction, not otherwise. Indeed, it can be confirmed that this Court has on numerous occasions affirmed this position, including through the case of ADMARC vs Albert Kuthemba Mwale.15 The only point of divergence we see between the two sides of the appeal is their reaction to the finding of the court below in this matter to the effect that the appeal that was before it was not on questions of law, but on questions of fact. The appellant vehemently disagrees with that conelusion, while the respondent strongly supports it. [2014] MLR 1 Following on this, it is the finding that the ap-peal- was on factual findings of the lRC, and the fact that the arguments the appellant furnished to that court dwelt on matters of fact, that has bred the question in what is now ground two of the appeal, to wit: whether facts have any role in appeals on questions of law and, if so, to what extent" [;r their respective addresses, the parties have done what they could to snr:w us the direction the law takes on this issue. In our judgment, through its connparison of the Australian legal provision on appeals on a question of law with our Section 65 of the Labour Relations Act, and through the various quotations it has presented us with from the case of Haritos and the case of Jones vs First Tier Tribunal (supra), it clearly emerges that instances will arise where the determination of a question of fact gives rise to a question of law. Where such happens to he the case, as further suggested by the dictum in the English case the appellant cited, despite the appellate court's jurisdiction being limited to 'errors of law', it should be permitted to venture more fr-eeiy into the 'grey area'that separates fact from law. As it iS, and we, have so said above, it appears to us that the respondent's research on this issue has co-incidentally also cclnflrn'red the above to be the correct position of the law on this point. As depicted in the authorities the respondent has cited, the position they project is not different from the position the appellant has depicted in his authorities on this same issue. In his reliance on the definition of 'question of law' from Black's Law Dictionary, the nespondent has described such to be a question that concerns the legal effect to be given to o set of undisputed facts. Also in his referenee to the Zlmbabwean case of Muzuva vs United Bottlens{Fvt) ttd (supra), the quotation the respondent has taken speaks of a question of law as being one in which the question for argument and determination is what the true rule of low is on q certoin matter. lndeed, even a definition this Court has lately come r-rp with in respect of the phrase'question of law'also confirms this position: lt goes: "on motters of law, an appellate court cqn reverse triai courts findings if the law was misapplied to the found facts. Q"uestions of law ore questions thot deal with the scope, effect ond application of a legal rule or test to be apptied in determining the rights of the parties."l7 lf we may say so, a matter, even if it be principally on the law, must sui',ehow relate to a given factual situation. lt does appearto us, on a eompartson of what the different authorities are saying here, that { Professcr'. Arthur Peter Mutharika and Another vs Dr Saulos Klaus Chilima and Another (Supra) what the Supreme Court of Zimbabwe alluded to in F its observation not different on the true rule of law on a matter is from the set of undisputed facts as reflected in the Black,s Law Dictionary,s definition, just as we believe it is not different from the link between determinations on facts and questions of law that the appellant has ceprcted through the Australian cases it has cited, and the need it has also depicted in the English case it has cited for courts in appeals on uuri:stions of law to have the freedom to venture into the grey area between facts and law. As it is, our own local case authority confirms this in its observation that a misapplication of the lawto found facts does amount to an error of law, and on appeal it can lead to a reversal of a lower court's findings. \rrlh;t is crucial, however, is for the courts not to blindly or aimlessly delve into factual matters for the sake of doing so. As and when a consideration of facts becomes necessary in dealing with an appeal on a question of law, the concerned court ought to bear at the fore of its mind a legitimate purpose for getting into such factual considerations. Again here, our view is that the parties in their independent searches for the correct position of the law on this issue harye come up with a uniform answer. As we have already seen from one of the Haritof quotations above, tne Federal Court of Australia took the view that in dealing with an appeal on a question of law, the court may haveto consider howthe Tribunal (in our case the Court) below went about its fact finding and the choices it rnade so that in deciding the question of law the aopellate court be in a better position to assess whether the below Tribuna! (or in our case the below Court) had stayed within the zone of dlscretion. ln that regard, it made it clear that the appellate court does this, not for purposes of considering whether a particular finding of fact should have been made by the Tribunal (or in our case the eourt) in question, but rather for purposes of considering uvhether it could have lawfully made such a finding of fact. By coincidence, from the searches and discoveries he had made, the respondent also came up with observations that are to the same effect. Although in acknowledging that in appeals on questions of law matters reach the aBpellate court with undisputed focts in the form of final and binding IRC determinations on factual matters, empi:wered by the authorities he had consulted and quoted from, the respondent, despite contending that matters of fact should be excluded in appeals on questions of law, within the same breath ended up sl.rpporting, for specific purposes, the courting of matters of faet by appellate courts. As we saw when he was addressing the issue of an appeal based on a complaint to the effect that a judgment is against the weight of the evidence, his stand was that the duty of the appellate Court would be confined to merely examining the trial court's fact-finding process in order to check if the Court took relervant evidence into account before making its said findings of fact. Now" this does not differ from what the appellant has shown through the ${aritos case. 'vvt , nust say we find the authorities the parties have used to discover tlie correct position of the law on appeals on questions of law, and cn the role factual matters have in a consideration of such appeals, althourgh they are largely from external jurisdictions, to be quite persuasive and sound" We accept the guidance they offer and we will utilize that guidance in this appeal. we need to add, however, that whenever dlsputes come to court, labour disputes in the IRC included, they can rarely be about an academic application of the law" Of necessity they arise from live factual situations, whose resciution at first instance depends on a matching of the facts obtaining against the applicable law. of necessity, therefore, even if an appeal foilowing on such adjudication arises purely from qr:estions of law, it would be idealistic to expect that there will be a one hundred per cent divorce of the legal questions from the facts. what the authorities the parties have furnishdd us with advocate, however' is that appellate courts should not resort to such facts for pu!'poses of deciding whether the Tribunar or Court befow shoufd have made particufar findings of fact, but whether it courd have f awfuf fy made such findings. The corolfary of this is that on their part tocl, appelrants on questions of faw shoufd not try to hoodwink epci=llate courts into delving into factual situations for purposes of drawing factual conclusions that are different from those that were r-*eije by the final and binding decisions of the trial court. Appellants will onfy be right in their approach if they inv te appeaf courts to go into a consideration of the facts sorefy for the nobre principre of checking whether such findings courd have been rawfury made. In this case, thenefore, these are the guiding principres we wi, appfy in onder te come up with our finar determination. Depending on the view we take on the purpose with which the apperfant inundated the Hich court with factuaf arguments in the presentation of its appear, the resurt we wifr give wifr have to be in fine with our above u;'icerstanding of the position of the raw on the subject. Deterrnination we have captured it above in our summary,*of the appellant,s arguments that the appellant has lamented to the effect that the High court did not even look into the merits of the appeal it had before dismissing it. Hearing this has made us wonder how that court could have been expected to go into an examination of the merits of an appeal it found to be against the dictates of Section 65 of the Labour Relations Act, and to be therefore impermissible. Be this as it may/ our rehearing of the appeal has enabled us to appreciate that the High court in its manner of handling that appeal did not in any \r/a\1 short-change the parties vis-d-vrs the rights they had as parties to the appeal" lt welcomed the processes they filed in aid of the ap$eal, it heard them argue the appeal in full, it read and considered all the submissions they made in the appeal, and it only came up with its fudgment after holistically looking at and evaluating all the rnaterial they had placed before it. Ar the end of ali that, its resultant impression belng that the appellant haci ".allerr shori of the demands of Section 65 of the Labour Relations Act, the eourt below had no option but to dismiss the appeal, as it cid. Ihere was no room at alt for entering into an evaluation of the merits" In turn, therefore, as we have already indicated above, our je r' tfirough the rehearing process we have had to conduct, has been to put ourselves in the shoes the High court wore, and to approach this evaluation in exactly the same manneR we must, therefore, avold being drawn into a consideration of the merits of what the appellant tabled before the Court below, as we go about the exercise of determining whether or not we too would have concluded that the appellant did not raise any questions of law in his grounds of appeal. To "r.,rccessfully do this, we have had to meticulously study all that transpIred in theCourt below. This has entailed us looking, not only at the grounds of appeal that court was meant to deal with, but also at tl're oraI and written arguments that were articulated in support of and in opposition of the appeal, as well as at the submissions that were nrade to buttress and to oppose the said appeal. Laborious as this exercise has been, we undertook it as a necessity assignment if we were to fulfil the procedure a rehearing of an appeal entails. Thus, just as the Court below did not go into giving elaborate details of how fcr each of the grounds of appeal that were before it, it found the argurnents to be raising questions on matters the IRC had made final ar-l,i '.:ilnding decisions on rather than questions on matters of law, we tco "'ruill not elaborate the details of everything this exercise has uneanthed before us, lest we end up inadvertently or otherwise enterisr8 into a discussion of the merits that could only properly have been dise ussed by the court below if it had found itself seized of a legitir"nate anel acceptable appeal. As it is, it will be that court's business to discuss those merits should \,ve aliow this appeal and send back the matter for it to determine the sarne on the merits. Suffice to say that after going through all the material the High Court dealt with, and after assessing the manner in whieh the appellant went about supporting its grounds of appeal in the High court, we are convinced that he was not asking that Court to clecide whether the IRC could have tegalty mode the factual findings it made on both the substantive and the procedural aspects of the disnnissaUtermination herein. lts aim, the rehearing has shown r-is, \.vas that the High Court should make factual findings that were opnosed to or in disagreement with the conclusions the IRC had come up with on the facts. Tiiis, as the authorities we have accepted guidance from above cleariy show, contravenes the spirit of a court resorting to matters of fact when considering questions of law. The distinct impression we are ieft v;ith, therefore, is that had we been the ones sitting in the High count when that appeal was called for hearing, we would not have come to a different conclusion from the one the learned High cCIurt.ludge pronounced in it. Consequently, it is our judgment that the appeliant [renein indeed failed in its said appealto the High Court to raise questinns of law. Having instead only managed to raise tl.rei'ein cuesticns of fact, which was contrary to what Section 65 ,iJecisions, demands of appellants in appeals from IRC we see no suhstance ln the two grounds of appear the appeilant was left with in this appeal, and we thus dismiss them both. Those appellant's only surviving grounds of appeal, our sarrle rneans that we have dismissed the entire appeal. dismissal of the having been the fosfs Tne appellant's appeai having been dismissed in toto, immediately arising is the question of costs. The parties presented their arguments, sup5;orted by the legal provision on costs under the LRA and some case auinerities. As is always the case, opposing parties rarely see eye to eye on this subject. ln like manner the parties to this appeal had a tug of war oi'r che matter, with each side pulling towards itself a determination that v'tculcl best suit its interests. We have no intension of debating the cppcsing argLinrents they paraded before us in any further detail. At this Pcint we only find it important to mention that apart from the general principle that costs lie in the discretion of the Court, we do not lcse sight of the noble reasons behind the Labour Relations Act legal prot'isicrr on tl-.e subject of costs.18 lt starts as follows: 572(i.) Subject to subsectian {2), the lndustrial Relations court shatt not moke ony order as tc ro'sfs'" lt ls orriy after putting forward this strong statement that it next scri'tens a iittle ny providing as follows: "s72(2) The tndustrial Relations cr:u;-: frrrffixr rnake an arder os fo ccsts where a party faits to attend, wtt'iiaiJt esuse" #ny conciliotion meeting convened under this Act, or vLrne{e the matter is vexetisus or frivolous." i 18 Section 72 of l-RA Our view, if we may put it up-front, is that the reasons behind the pnomulgation of this special legal provision on costs in relation to industrial relations matters is not to make such litigation expensive and cut of reach for the masses of suffering employees. Courts like ours neerJ, therefore, to be slow in turning appeals that come before them Irico avenues fcr subvertlng the helpful intentions of the law for litigants ii'i ;his area of law. This court should therefore not casually jump onto ir',vitations to stifle the parties' rights to litigate up to appeal levels in thesc=: nratters. Given the circumstances of this matter, we cannot say tirat lne appeals the appellant took up were vexatious or frivolous. As cai", re seen, the appeai before us has afforded us an opportunity to pi"rrilcunce on how appeals on points of law should generally be handled, in regard to how delicately matters of fact should be looked at esy€cially ir": such appeais. We thus through this judgment take the opportunity to e nrphasize the point that the right to appeal in labour and industrial inat:ers shoutd not be wantonly or needlessly converted into a mere priviiege to appeal by parties who cannot see beyond their personal ir"il.ei'ests on questions of costs. Our order in this case, therefore, is that eacir partry shcluld bear its own costs, just as in the High Court a like order rnaoe. Consequentiol order Oun' cletermination of this appeal being a confirmation of the decision of the High Court, which upheld the decision of the IRC on liability, the rneaning cf all this is that the IRC judgment has always been the right c'-:*i:;cn rn this case. hJow, since by the time the appellant took out the first ap,oeal in ihe matter an assessment of the awarded damages and of /11 the other dues had not yet taken place, and as lhe appeal from the High Court to this Court equally did not permit room for that assessment to take place, our order is that this matter must henceforth revert to the IRC for the said assessment of damages and of the other awards it had granted to take place, unless the parties should agree earlier on what the appellant will pay to the respondent under each head of the awards. We order accordinglY. Pronounced in Open Court the L3th day of April, 2O2t at Blantyre' manda SC, JA sc, JA i I Honourable ...aa.aaaaaaaaaaa.aa P. Chikopa SC, JA l 43