Muziya v Finance Bank Zambia Ltd (Appeal 77 of 2002) [2003] ZMSC 176 (4 April 2003)

IN THE SUPREME COURT FOR ZAMBIA Appeal No. 77 of 2002 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: PETER MUZIYA Appellant AND FINANCE BANK (Z) LIMITED Respondent Coram: Sakala C. J., Mambilima and Silomba JJS 10th October 2002 and 4th April 2003 For the Appellant, Mr. M. Kabesha of Kabesha and Company For the Respondent, No appearance JUDGMENT Sakala C. J., delivered the Judgment of the Court. We heard this appeal in the absence of the respondent and their advocates, upon being satisfied in terms of Rule 71(1 Xb) Cap 25 of our Rules that the advocates for the appellant had informed the respondent’s advocates through his client about the date of the hearing of the appeal. This is an appeal from a decision of the Industrial Relations Court dismissing the appellant’s complaint. In the complaint, the appellant had claimed for the following reliefs: - (I) A Declaration that his conditions of service should be the same as other Senior Officers in the equal category. (2) An order that the Respondent pay the appellant the cash equivalent for all the benefits unreasonably and unilaterally withdrawn or denied. (3) An order that the dismissal was wrongful and unlawful. (4) Reinstatement to the position the appellant held as on 4th July 1999. (5) Any other relief the court may deem fit in the circumstances. (6) Costs of the proceedings be borne by the Respondent. (7) An order for interest at Bank rate. The brief facts of the case, which were not in dispute, are that the appellant was employed as a senior officer by the respondent on 6lh December 1989. He rose through the ranks to the position of Director category (C). He served in various stations. During his service, he enjoyed a salary and fringe benefits applicable to other officers of the Bank in that category. In the position of Director, he was entitled to various conditions of service, which included a vehicle, holiday allowance and two return air tickets per year. It was common cause that, he was removed from the position of Director Grade (C) to Manager Operations and Branch Administration. Upon his removal from being Director Grade (C), he lost some of the conditions of service. In July 1999, he was summarily dismissed from employment for dishonest conduct. The appellant launched a complaint in the Industrial Relations Court alleging discrimination, abuse, unilaterally withdraw of fringe benefits, wrongful and unlawful dismissal from employment for an offence not charged. He supported the complaint by affidavit and viva voce evidence. The evidence set out the history of his employment with the respondent from December 1989 to 14lh July 1999 when he was dismissed. He explained that despite his transfer to Kabwe in the capacity of Manager, not a demotion, management assured him that the conditions of service remained unchanged and that his salary was to be reviewed after six months. He further explained that some of the conditions of service, which he was enjoying, were withdrawn in 1997. He unsuccessfully appealed against the withdrawal of some of his conditions of service. The respondent called four witnesses in defence. The trial court considered the evidence and the submissions and made the following findings:- that the complainant had been originally employed as a senior officer; that he rose to the rank of Director Grade (C); that as Director Grade (C) he was entitled to a personal to holder vehicle and he was entitled to a holiday allowance of U$2,000 and two return air tickets per year. The court noted that the appellant’s contention was that these conditions of service were unilaterally withdrawn by the respondent and was, therefore, discriminated against and abused. On the other hand, the court also noted that the case for the respondent was that the appellant was not entitled to the conditions of service which were applicable to Directors Grade (C) because he had been removed from that Grade to Manager. The court observed that the question for determination was whether the appellant was demoted and for what reasons. On the evidence, the court further found that the appellant had made a unilateral increment of his salary without authority; an action the court found to be a misconduct. The court also found that there were irregular banking transactions that included a loan given to the appellant’s wife. The court found that, on the evidence, the demotion of the appellant was justified and that discrimination and abuse did not arise. On dismissal, the court accepted the evidence that the appellant was properly charged and found guilty of misappropriating the sum of US$10,000 without authority and failing to account for it. The court finally held that the appellant failed to prove his case of discrimination, abuse, wrongful and unlawful dismissal. The complaint was dismissed with costs; hence this appeal. On behalf of the appellant Mr. Kabesha filed a memorandum of appeal consisting of four grounds. The summary of the grounds is that the finding that the respondent lost the money given to the appellant’s wife as a loan was a misdirection as it was not supported by the evidence; that the finding that the appellant was demoted was a misdirection; that the trial court erred when it held that US$10,000 was disbursed without written authority; and that the court misdirected itself by refusing to admit a tape recorded conversation. Written heads of argument were filed based on these five grounds. The gist of the written arguments and submissions is that the loan allegedly given to the appellant’s wife was actually given to Kumwi Enterprizes Ltd and not his wife who was the Principal Director; that there was no evidence that the appellant was demoted; that the appellant did not obtain the US$10,000 fraudulently and should not have been dismissed. In arriving at our decision in this appeal we have also taken into account the Respondent’s written heads of argument. We have carefully considered the Judgment of the Industrial Relations Court, the evidence on record as well as the written heads of argument. The findings of the lower court were amply supported by the evidence. They are all findings of fact. This being the case, it follows that in terms of Section 97 of the Industrial and Labour Relations Act Cap 269, this appeal is incompetent as an appeal to the Supreme Court from a judgment of the Industrial Relations Court only lies on any point of law or any point of mixed law and fact. Accordingly this appeal is dismissed. The respondents having not appeared, we make no order as to costs. E. L. Sakala CHIEF JUSTICE I. C. Mambilima SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE I