Mcpherson Mutupa Mbulo v Mutupa (Appeal 105 of 2000) [2001] ZMSC 86 (5 June 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 105/2000 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: MCPHERSON MUTUPA MBULO APPELLANT AND PRISCILLA MUTUPA RESPONDENT Coram: LEWANIKA, DCJ„ CHIRWA, CHIBESAKUNDA JJS On 4th December, 2001 and 5th June 2002. ;1 For the Appellant: For the Respondent: Dr. J. SOKO of Josias & Partners Ms I. M. KUNDA OF George Kunda & Co. JUDGMENT LEWANIKA, DCJ delivered judgment of the court. This is an appeal against the decision of a Judge of the High Court refusing to grant the appellant an order to exclude the Respondent from benefiting from the estate of the late Kangwa Ruston MUTUPA. The evidence on record is that the Appellant was appointed by the High Court as administrator of the estate of the late Kangwa Ruston MUTUPA who died intestate on 14th March, 2001. The Respondent is the widow of the late MUTUPA (hereinafter referred to as the deceased). The - J2 - deceased and the Respondent were married at the Cathedral of Christ the King at Ndola on 11th October, 1986. There were no children bom of the marriage but the deceased and the Respondent "adopted" a child, one Veronica MUTUPA who was a daughter of the Respondent's late sister. They kept this child from the age of three up to the demise of the deceased. When the deceased fell ill there were misunderstandings between the Respondent and the deceased's relatives and the deceased and the Respondent agreed that the Respondent temporarily leaves the matrimonial home to go and stay with her relatives. The Respondent left the matrimonial home on 14th February, 2000 but the child Veronica remained with the deceased till his demise on 15th March, 2001. There is evidence on record that the Respondent used to visit the deceased at the matrimonial home until his relatives objected. After the demise of the deceased the Appellant instituted these proceedings against the Respondent for an order that the Respondent is not entitled to benefit from the estate of the deceased as she had deserted the matrimonial home for over two years. The learned trial Judge found that the marriage between the deceased and the Respondent was subsisting at the - J3 - time of his death and that the Respondent was the widow of the deceased. He also found that the child known as Veronica MUTUPA was living with the deceased at the time of his demise and that she was a dependant of the deceased. He also found that on the evidence before him the Respondent had not deserted the matrimonial house for a period of over two years. He therefore found that both the Respondent and the child Veronica were entitled to benefit from the estate of the deceased in terms of the Intestate Succession Act of 1989. We have considered the submissions made by counsel for the Appellant and for the Respondent, which we do not intend to repeat as they are on record, as well as the evidence on record. The learned trial Judge was on firm ground in finding as he did and this appeal is devoid of merit and we dismiss it with costs. The costs are to be taxed in default of agreement. D. M. Lewanika DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE -J4- L. P. Chibesakunda SUPREME COURT JUDGE IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 40/2001 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: POSTAL SERVICES CORPORATION Appellant AND MUTAFELA MUTAFELA Respondent Coram: Lewanika, DCJ, late Chaila, Chirwa, JJS 4th September, 2001 and 5th March 2002 For the Appellant: C. M. Mukonka, Legal Counsel, Zampost. For the Respondent: A. M. Munyinda of Munyinda & Company. JUDGMENT Lewanika, DCJ, delivered the judgment of the court. Cases referred to: 1. THE ATTORNEY GENERAL VS MARCUS KAMPUMBA ACHIUME, 1983 Z. R. 1 - J2 When we heard this appeal our late brother Chaila, JS, was on the panel before his untimely demise and this judgment is to be regarded as by the majority. This is an appeal against the decision by the Industrial Relations Court as found that the respondent's employment was unfairly terminated and ordered that he be deemed to have been declared redundant from the date of termination and that his redundancy package do carry interest at the Bank of Zambia lending rate till payment. The evidence on record is that the respondent was employed as a Postal Manager by the appellant and was based at Chipata Post Office. He was responsible for the postal offices in the eastern region and among his duties were that he was responsible for the overall control and supervision of staff at all levels in the postal area. He was also required to make regular checks of branch offices and agencies to ensure correct implementation of instructions. In March 1995 an Inspector, DW1 in the court below, was sent to Chipata to conduct investigations at Chipata Post Office and those investigations revealed that an amount in excess of K36 million had been misappropriated by postal employees between the period of January 1994 to March 1995. The witness compiled a report J3 which was produced in the court below. As a result of this report, the respondent was charged with gross negligence and after all the disciplinary procedures had been observed, he was dismissed from employment. This is what led to the proceedings in the court below. The Industrial Relations Court found that the report exonerated the respondent and that his employment had been unfairly terminated and ordered that he be deemed to have been declared redundant. Counsel for the appellant has filed two grounds of appeal but we shall deal first with the first ground which is that the Industrial Relations Court erred in finding or misdirected itself when it made a finding to the effect that the report on money order frauds exonerated the respondent and hence the respondent never committed the offence of gross negligence. In arguing this ground, counsel said that the finding by the trial court that the respondent's employment was unfairly terminated is not supported by the evidence on record. He said that the report which was construed by the court below to have exonerated the respondent from commission of the disciplinary offence of gross negligence even in its plain language does not exonerate the respondent. He said that the paragraph of the report relied upon by the court below in arriving at its J4 finding merely mentioned other factors which could have aggravated the situation. That with or without the last check at money order branch at headquarters in Ndola, the respondent was still negligent. He pointed out that the trial court had observed in its judgment that every weekend all money orders, including other transactions, were compiled into cash account and the first person who was to verify these transactions was the respondent. That the respondent acknowledged in his evidence that the cash account was submitted to his office for verification before it was forwarded to Ndola money order branch by his assistant. He submitted that the respondent grossly neglected his duties and for the trial court to find that the respondent never committed the offence in the face of the evidence adduced in court was a misdirection. He said that if the trial court had taken a well balanced view of the whole evidence laid before it, it would not have come to the conclusion that the respondent had not committed the disciplinary offence of gross negligence. He urged us to interfere with and reverse this finding and set aside the judgment of the court below. In reply, counsel for the respondent submitted that the trial court did not err or misdirect itself in making a finding of fact to the effect that the report on money orders exonerated the respondent and hence that J5 the respondent was not guilty of gross negligence. Further he said that this court has no jurisdiction on points of fact but on points of law or mixed law and fact. He said that he relied on Section 97 of the Industrial and Labour Relations Act. We have considered the submissions of counsel for the appellant and for the respondent, as well as the evidence on record. There is no disputing the fact that an amount in excess of K36 million was misappropriated by the appellant's employees who were under the supervision of the respondent. The court below in arriving at its decision relied on paragraph 6 of the report prepared by DW1 who apportioned some blame on the money orders branch at Ndola for not detecting the frauds. However, in doing so the court below totally ignored paragraph 8 of the same report which stated that the frauds were committed as a result of lack of supervision on the part of the respondent and his assistant. In no way does the report taken in its entirety exonerates the respondent. Admittedly, the finding by the court below was a finding of fact but it was a finding, which flew in the teeth of evidence. As we said in the case of the Attorney General vs. Marcus K. Achiume (1) quoting from our decision in the case of ZULU vs. AVONDALE HOUSING PROJECT LTD., 1982 Z. R. 172:- - J6 "Before this court can reverse findings of fact made by a trial Judge, we would have to be satisfied that the findings on the question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." We are satisfied that this was such a case and we would reverse the finding and allow the appeal and set aside the judgment. The second ground of appeal dealt with the question of interest awarded by the court below and in the light of our decision, this ground has fallen away and it would be otiose for us to deal with it. Having regard to the circumstances of the respondent, we make no order as to costs. D. M. LEWANIKA DEPUTY CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE