Livingstone Municipal Council v Suba (Appeal 75 of 1998) [1999] ZMSC 122 (18 February 1999)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 75 OF 1998 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LIVINGSTONE MUNICIPAL COUNCIL APPELLANT AND ' INUTU ETAMBUYU SUBA RESPONDENT CORAM: NGULUBE, CJ., SAKALA AND MUZYAMBA, JJS On 24th November, 1998 and 18th February, 1999. For the appellant - Mr. A. J. Nyangulu; Nyangulu and Company- For the respondent - Mr. E. J. Shamwana; SC; Shamwana and Company JUDGMENT Ngulube, CJ, delivered the judgment of the court. The matter arose from an action before the Industrial Relations Court which adjudged that the complainant - the respondent in this appeal - be reinstated in her position as Town Clerk of the appellant Council with effect from 2nd December, 1993, the date of her purported dismissal. The Court ordered that she be paid all her emoluments and all her entitlements from that date and also that she be transferred to another town. The latter order could not, of course, conceivably be carried out by the respondent Council which had no jurisdiction over other Councils. She was not transferred and so claimed to be paid what was due to her in terms of the judgment of the Court. It was not in dispute that in December, 1997, the respondent was paid a sum of KI 6,049,673=44 but she claimed under several heads additional amounts totalling K307,400,548=93. Assessment of the damages and the amounts due was done by the learned Deputy Registrar of the Industrial Relations Court who awarded a total of K240,804,871=60 plus an amount to be computed by the parties in respect of entitlement to servants' wages in accordance with the rates deposed to by the Council's witnesses. The amounts awarded were broken down as follows:- 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Salary arrears and Allowances Social Holiday Allowance Education Allowance Transport Costs Newspaper Costs Electricity Medical Telephone Motor Vehicles Expenses House Maintenance Personal To holder Vehicle Total - - - - - - - - - - - - K26,448,873.60 3,500,000.00 960,000.00 178,375,000.00 740,000.00 2,169,823.00 1,500,000.00 9,225,000.00 3,386,175.00 7,500,000.00 10,000,000.00 240,804,871.60 The grounds of appeal related to the quantum as awarded in respect of the amounts under certain heads of claim and questioned the respondent's right and entitlement at all altogether to some of the amounts. Mr. Shamwana prefixed his responses to the appellant's heads of argument by drawing attention to the fact that the grounds of appeal though stating to be based on errors of law and fact actually only dealt exclusively with the trial Court's findings of fact. This was basically a correct observation and in this regard we wish to draw attention to S.97 of the Industrial and Labour Relations Act, CAP 269 which reads "S.97 Any person aggrieved by any award, declaration, decision or judgment of the Court may appeal to the Supreme Court on any point of law or any point of mixed law and fact" Thus, it is quite clear that an appeal from the Industrial Relations Court to this Court will not be competent and cannot be entertained if it is not on any point of law or any point of mixed law and fact. The appeal here challenged findings of fact. A finding of fact is a question of law only if it be alleged that it was made without any evidence or on a view of the facts which could not reasonably be entertained. This was the principle accepted by this Court in DIRECTOR OF PUBLIC PROSECUTIONS -v- NG'ANDU AND OTHERS (1975) ZR 253 in which we followed the dicta of the House of Lords in EDWARDS -v- BAIRSTOW (1955) 3 ALLER 48. In dealing with the grounds of appeal, the arguments and the submissions in this case, we have borne in mind the caveat we gave in the NG'ANDU case when we said, in the relevant parts, at P.264 in relation to a similar limitation:- "This is a finding of fact which ... can only be attacked on appeal... if it can be said to have been made without any evidence or on a view of the facts which could not reasonably be entertained. Whether any of the members of this Court would have come to the same finding having ... heard the evidence is not the issue; the issue is whether there was evidence on which the learned magistrate could reasonably come to that finding of fact." So much being premised, we turn to the grounds of appeal. The first ground related to the award of K26,448,873=60 as arrears of salary and allowances. The appellants urged that the computation they had put forward .ought to have been accepted and according to the summary available on record this included deductions of some sort of self-assessed damages for loss of business and damage to property when the bailiffs closed the offices (see page 24 of the record). The learned Deputy Registrar heard viva voce evidence and perused the documentary evidence. He accepted the complainant's version and we cannot say that this was in the absence of any evidence or on an unreasonable view of such evidence. There is thus no question of law raised by this ground; we reject it. The second ground related to the award of transport costs in the sum of KI 78,375,000=00. Counsel for the appellants pointed out that the learned Deputy Registrar had in this same matter rejected another claim for K8,400,000 in respect of boarding, lodging and subsistence allowances in connection with the trips to attend Court Sessions which he properly considered should be dealt with as part of the costs. He argued that there was no justification for not treating the transport costs related to the same trips similarly as costs. Of course, any dispute as to costs can be resolved at a taxation. The appellants also challenged the veracity of the claim which showed that a Town Clerk was able to spend money on hiring a vehicle in sums far in excess of her possible capacity or official emoluments. Mr. Shamwana countered this by pointing out that according to the evidence, she was assisted by her brother. The claim arose in this way: As a Town Clerk, the complainant was entitled to a personal- to-holder motor vehicle and she considered that she could hire a private vehicle more or less on a permanent basis in place of the vehicle she did not have during the period of her purported dismissal. In relation to the claim for transport costs which averaged approximately K7 million per month, the learned Deputy Registrar observed:- "Transport costs should also have been treated as costs arising out of the cause and not as a claim in its own right. I will nonetheless consider this claim as laid before me. The respondent's (the Council) have not disputed the validity of this claim - the only issue here was the quantum." The learned Deputy Registrar did not say why he felt compelled to deal with a matter so obviously sounding in costs of the suit as a legitimate head of claim in respect of the award by the trial court of her arrears of emoluments and entitlements. In any case, the evidence of the witnesses called by the appellants and the submissions below all showed that the claim was hotly disputed. It was therefore quite surprising that the learned Deputy Registrar took the view that they did not dispute the validity of the claim. It was a view of the evidence which cannot possibly be supported, let alone entertained. This part of the appeal has to succeed and we set aside the award of K178,375,000=00 transport costs. The claim has to be dealt with as costs and if not agreed will have to be subjected to taxation and the requirement of justifying before the taxing officer the reasonableness of the almost permanent hiring of a vehicle resulting in what was prima facie an extravagant sum of expenditure. Why!; on the general principles of mitigation in respect of the loss of use of the fringe benefit of a personal-to-holder car, it might even have been cheaper to buy a car - or several cars in fact - with that kind of money. The next ground of appeal related to the awards in respect of the maintenance of the official personal-to-holder car in the total sum of K3,386,175=00 and K7,500,000=00 for maintenance of the official house. Counsel argued that there was strong counteracting evidence from the Council's witness Mr. Lilema on how much was spent. Quite apart from issues of credibility, the bottom line is that the complainant led evidence which a trial court could reasonably act upon. In the event, no point of law arises upon which we could entertain an appeal in this respect. We will therefore not accede to Mr. Nyangulu's ingenious suggestion that we award the average of the contending figures; the task of dispensing rough and ready substantial justice belonged to the Industrial Relations Court. The fourth ground of appeal related to the award of K9,225,000=00 as telephone expenses. At the assessment, the complainant • claimed a sum of KI 8,450,000=00 which the learned Deputy Registrar slashed by half. Counsel complained that the amount allowed was still too high since the claim was not supported by any actual bills from Zamtel. He proposes one-twentieth of the original claim. There is in fact no proper excuse for us to simply substitute our own "guesstimate" for that of the particular trial court which is a Court of substantial justice. The award was based on the evidence before the court and even if we might have had a different opinion had we tried the case, there is no point of law involved in the award which was based on a view of the evidence which it is not possible for us to say was totally unreasonable. The fifth ground of appeal related to the award of KI 0,000,000=00 in lieu of a personal-to-holder car which she lost. The appellants say there was no basis for this award since the purchase of personal-to-holder vehicles is governed by regulations which give the Council a discretion to make a decision in the matter. The purchase of such vehicles by certain senior officers is undoubtedly a valuable condition of service loss of which can be taken into account and translated into cash: See ATTORNEY­ GENERAL -v- KAMOYO MWALE SCZ APPEAL NO. 79 OF 1996 where an award was approved in respect of the lost opportunity to purchase a personal-to-holder car on favourable public service terms. But above all, the court below made a finding of fact for which there was the necessary evidence. No point of law therefore arises and we simply have no excuse for interfering. In sum, the appeal succeeds on the question of transport costs. The appellants have succeeded in getting the amount of the judgment reduced and are therefore successful in the appeal. They will have the costs of this appeal to be taxed in default of agreement while, of course, the complainant who was successful below will continue to have those costs. M. M. S. W. NGULUBE CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE