Justin Banda and Ors v National Airports Corporation (Appeal 69 of 2002) [2003] ZMSC 136 (25 July 2003)

THE SUPREME COURT FOR ZAMBIA APPEAL NO. 69/2002 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JUSTIN BANDA AND 10 OTHERS APPELLANT AND NATIONAL AIRPORTS CORPORATIONS RESPONDENT Coram: Lewanika, DC J, Chibesakunda and Silomba, JJS on 4th September 2002 and 25th July 2003 For the Appellants: For the Respondent: Non appearance Mrs. K. Chitoshi - Legal Counsel National Airports Corporation. JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Cases referred to: 1. 2. Chizebuka v Zambia Consolidated Copper Mines Limited SCZ 143 of 1996 Nkhata and 4 Others v. the Attorney General SCZ 1966 P.124 Laws referred to: 3. Industrial and Labour Relations Act Cap On the 3rd of September 2002 when this matter was scheduled to be heard Mr. K. Musongo of York and Partners appeared for the Appellant. The matter was then adjourned to 4th September 2002 as Mr. Musongo sought for an adjournment to the following day. When the matter came before the court, on 4th September 2002 Mr. Musongo, learned counsel for the Appellant, did not appear before the court for reasons which were never brought to the court’s attention. So the court proceeded to hear the appeal in the absence of the counsel for the Appellant as the Appellant’s heads of argument were before us. - J2 - In this appeal the Appellants who were the complainants before Industrial Relations Court are challenging the decision of the Industrial Relations Court, which was a dismissal of their complaint that they were wrongfully dismissed by the Respondents in the letters dated between 23 and 25 th June 1998. The Appellants had sought the following relief before the Industrial Relations Court: 1. A declaration that their dismissals were wrongful, and therefore null and void; 2. Reinstatement to their respective positions before the dismissals; 3. Damages for unlawful dismissal; and 4. In the alternative that they be retired with full benefit. Before the Industrial Relations Court it was common cause that the Respondents employed the eleven Appellants at Ndola Airport before June 1998. Some of the Appellants were employed in the commercial department and the others in the security department. It was common cause before the lower court that those employed in the commercial department used to collect revenue from car park fees, landing fees and passenger’s service charge fees. Tied up with this revenue collection was the duty to keep proper records. The Commercial Department was responsible for all the revenue collection. In relation to passenger’s service charge fees the system was that the person on duty from the Commercial Department would sell a passenger a service coupon that would then be stappled to the air ticket. From the passenger’s service booth the passenger would then proceed to the security booth where a ticket would either be stamped or cancelled by pen or signature. This was to signify that the passenger had passed through security and that that coupon should not be used again. Management had put in place a system where there was a daily comparison of the number of coupons that they had sold with the number of passengers recorded on the passenger’s manifest and the number of passengers recorded in the Control Tower. J3 Security personnel also recorded the number of passengers who passed through them. According to this system, the employees of the Respondents were not meant to retain any coupons sold as these were meant to be afterwards properties of the passengers. It was also common cause that the Lusaka serial numbers of coupons differed from the Ndola serial numbers and international coupons were different from the national coupons. The serial number of the international coupons were different from the national coupons and international coupons in Ndola were only sold to passengers on Aero Zambia and Zambian Express Airways. It was also part of the system that coupons issued at Ndola airport could only be used at Lusaka International airport for transit passengers and that coupons issued on a particular day had to be used within 24 hours and not to be used at any subsequent day. It was also common cause that what really brought out the investigations, which led to the dismissal of the eleven Appellants, was that two coupons dated 10th June 1998 resurfaced as being sold to passengers traveling on 12th June 1998 at Lusaka international airport. When these two passengers were queried they both stated that they purchased the two coupons at Ndola airport on 12th June 1998 which was contrary to the established system. So the investigations commenced regarding these two coupons. According to the Aviation Manager of the Respondents these investigations revealed that there was a racket involving Security and Commercial Departments in which these service coupons were recycled after being sold to passengers on earlier dates. The investigations also revealed that the passenger’s manifest was being incorrectly recorded by indicating that some passengers were diplomats when they were not and that some passengers were infants when they were not. It also revealed that the Respondents’ employees were pocketing the money collected from the sale of passenger’s service coupons. It was also discovered that this fraud had gone on at Ndola airport for sometime. The investigations revealed a total number of 52 service coupons as being recycled. The Appellants’ evidence before the Industrial Relations Court was that they were not involved in this racket. According to them the system used in clearing passengers was so watertight that there was no possibility of defrauding the Respondents. J4 They conceded to the suggestion that the documents used by the national airport employees would identify the flight and also the personnel on duty from both security and commercial departments. They accepted that the passenger’s manifest was prepared by security and it used to show which passengers were infants and which ones were diplomats. It was also their evidence that if there was any fraud, this was perpetrated at Lusaka international airport not Ndola. They also testified that the Airport Managers used to check the records from Commercial, Tower and Security Departments. The Respondent’s evidence before the Court was that the investigations revealed this racket and that this racket was at Ndola airport. They explained that the system at the checkpoint at the airport was that passenger’s manifest should include the passengers’ names and the crew. The Tower also has a document which document did not contain names of passengers. They explained that the security coupon sheet identified people who had paid departure fees and those who had not paid. They further explained that this information was only available in the Security and Commercial Departments; the Tower records did not have such details of passengers exempted from buying service charges. It was further their evidence that there were documents used by the Ndola airport of employees, which would identify the flight number but also would show who was on duty from both security and commercial departments. On the evidence before the Court the lower court dismissed the complaints by the eleven Appellants. In the heads of argument the Appellants attacked the lower court’s approach arguing that the lower court seemed to readily accept the evidence of the Respondent without stating the reasons why. They went on to argue that the lower court also readily rejected their evidence without staying why. Citing the case of Chizebuka vs Zambia Consolidated Copper Mines Limited (1) they argued that this court held that this approach was a misdirection. Mrs. Chitoshi, learned counsel for the Respondents, in response relied on her written heads of argument. J5 She in her written arguments stated that contrary to the assertion by the Appellants, the lower court evaluated the oral and documentary evidence of the Appellants. Tn this evidence there were a lot of facts on which there was common ground. She pointed out to us that the evidence on the system of handling passengers before boarding the plane was a common ground. The evidence on the purchasing of service coupons by the passengers was a common ground. The passengers’ manifest, which reflected the names of the passengers or infants, wras equally common ground. She pointed out to us that much of the Respondents’ evidence was documentary and that the lower court made references to these documentary evidence as well as to the facts on which there was common ground. She argued that the lower court made a number of findings of fact. Citing the case of Nkhata and 4 Others vs. The Attorney General (2) she argued that this court cannot entertain an appeal anchored on findings of fact by the Industrial Relations Court. We have seriously considered the arguments raised before us and looked at the record of the lower court. We agree with Mrs. Chitoshi that at page 17 of the record the lower court made a number of findings of fact. The court found that the there was a system of servicing national and international passengers at Ndola Airport. It made a finding that the international service coupons were sold at Ndola Airport contrary to what the Appellants had said. It also found as a fact that the Security Department used to record all the passengers passing through them and that such record showed the passengers as well as the personnel on duty. It also showed service coupon numbers. These held also that the service coupon purchased had to be used on the day they were purchased if not a report had to be made to the Airport Manager. All these were findings of fact. Section 95 of the Industrial and Labour Relations Act prescribes against appeals against findings of fact lying from the Industrial Relations Court to the Supreme Court. We note that the lower court basing on these findings of fact dismissed the complaints of the Appellants. This court therefore cannot entertain this appeal, as it is an appeal against findings of fact. The court has no jurisdiction to entertain such an appeal. The appeal is therefore dismissed. - J6 - But looking at the Appellants and taking into account the fact that they have been out of employment for this long and in order to avoid causing further hardships to them we order no costs. D M Lewanika DEPUTY CHIEF JUSTICE L P Chibesakunda SUPREME COURT JUDGE S S Silomba SUPREME COURT JUDGE