Zambia National Commercial Bank Ltd v Mubita and Ors (SCZ 8 25 of 1997) [1999] ZMSC 114 (26 July 1999)

----------- - - .. -/ / - IN THE SUPREME COURT FOR ZAMBIA SCZ/8/25/97 HOLDEN AT LUSAKA (CIVIL JURISDICTION) ZAMBIA NATIONAL COMMERCIAL BANK LIMITED APPELLANT and ALBERTINA MUTUMWA MUBITA CHIBUMWA MWANSA BEATRICE NAMAKAU CHINKUNKA KAINDU CHIPENDANO SUSAN MWILA ANTHONY CHEWE PHILLIP ZIMBA RESPONDENTS CORAM: BWEUPE DCJ., CHAILA and LEWANIKA JJS On 23rd February, 1999 and 26th July, 1999 For the Appellant - Messrs Mabutwe and Associates For the Respondents - P. Mwale of Peter Mwale and Company. BWEUPE DCJ., delivered judgment of the court. JUDGMENT This is an appeal against the whole judgment of the Industrial Relations Court at Ndola which held that there was no strike at all. For convenience we shall refer to the Appellant as the Respondents and the Respondents as the Plaintiffs which was what they were in the court be­ low. The facts were these: on 8th March, 1996 the 6 complainants applied to the court to consolidate their actions. On 20th November, 1997 the Indus­ trial Relations Court at Ndola delivered the judgment in which it was held that there was no strike at Ndola. On 16th April, 1993 the court at Lusaka held that there was an illegal strike. These two cases involved the same parties and both courts decided upon the same issues or facts. The court at Lusaka dismissed the Plaintiffs' cases as they found that there was an illegal strike and the court at Ndola allowed the complainants' cases as it held that there was no strike. J2 - In their Memorandum of Appeal the Respondents argued that:- (a) it was not open for the court to determine the question whether there was an illegal strike on the 27th of June, 1992 at Ndola as this issue was resjudicata having earlier been determined in the Respondent's favour in the case of Zambia Union of Financial Institutions and Allied Workers vs Zambia Bankers Employers Association and others by a court of compe­ tent jurisdiction presided over by the Chairman of the Indus­ trial Relations Court (b) the same applies to the question whether the Appellant follo­ wed the Rules of natural justice when effecting the Respondents' dismissals as this issue was extensively dealt with by the earlier court in the same case of Zambia Financial Institu­ tions and Allied Workers vs Zambia Bankers Employers' Associa­ tion and Others (c) the question whether the Respondents were exercising their rights to attend Union meetings was also dealt with and de­ termined by the earlier court and was therefore resjudicata in the case under appeal (d) in the alternative it is submitted that the lower court mis­ directed itself when it held that the Respondents did not go on strike as they admitted having committed the said offence but were challenging their dismissals on the grounds of dis­ crimination which were very vague and could not therefore be sustained. The Respondents argued their case as follows:- Res Judicata having been decided, Zambia Union of Financial Institutions vs Zambia Bankers Employers Association and Others, in this case the Respondents argued that the Respondents brought their action in the Industrial Relations Court at Ndola after their Union, the Zambia Union of Financial Institutions and Allied Workers in its representative capacity failed to secure their reinsta­ tement in another action in the Industrial Relations Court at Lusaka in 1992 challenging the dismissals by inter alia, the Plaintiff of unionised workers who went on illegal strike in June, 1992. The latter court found as a matter of fact at pages J51 and J63 of its judgment that an illegal strike took place at Ndola on 27th June, 1992. It also upheld dismissals. Regrettably, the Industrial Relations Court at Ndola came to another - J3 - - finding, for instance, that at the Appellant's Ndola main branch, there was a lock out. The finding of fact from similar facts by the Industrial Relations Court at Lusaka not having been overturned, the court at Ndola was bound by it. In other words, there was an illegal strike at Ndola and employees were not locked out. The Industrial Relations Court at Ndola having failed to appreciate this fact took a simplistic view of the situa­ tion namely, that the action by the Respondents amounted to a mere absence from duty which was not a dismissable offence. ADMISSIONS In their sworn affidavits, the vein of the Respondents' plea was that they felt discriminated against since others who had committed a similar offence had been reinstated. In the words of the third complainant at page 64 line No. 18 he said "The offence I am talking about in my grounds is going on strike." Surely that cannot mean anything else but that he and the other complainants took part in an illegal strike. The Industrial Relations Court accordingly failed to take into account the Plaintiffs admissions and should have treated their evidence with a pinch of salt and found for the Respondents. The court also failed to address itself on the issue as to the credi­ bility of the Plaintiffs as an analysis of their evidence shows. Although the testimony of the witnesses was contradictory as to the genuineness of their claims and did not establish discrimination, it is apparent that the court soudht to erroneously shift the burden of proving their apparent inno­ cence of the Respondent. The mere fact that the Defendant does not adduce evidence is not per se proof of the Plaintiff's case. Because of the ambi­ guity in their evidence, the Plaintiffs failed to prove their case on a pre­ ponderance of doubt. In fact the Respondents' witnesses showed that there was an illegal strike which took place at Ndola on 27th June, 1992. The issue was one of taking part in the said illegal strike. J4 - Turning to the question of the rules of natural justice not having been followed, it was the Appellants' contention that the grievances and discipli­ nary code which required the party being charged to be given an opportunity to exculpate him/herself did not apply as the same was not provided for under the code. What was invoked by the Appellants were the general conditions and rules of service which the Plaintiffs had agreed to and signed for. They provided for dismissal upon misconduct which was the case at hand. The reins­ tatement of the Plaintiffs on the grounds that the rules of natural justice were not followed was therefore a misconception. The award of damages was also not in conformity with the decisions of this Honourable court. Mr. MWALE argued that the issue of res judicata was not raised in the Industrial Relations Court in Lusaka as the court was not considering indi­ vidual cases. We have carefully considered the issues at hand and we are of the view that the issue involving the same parties were raised in 1993 in the Lusaka Industrial Relations Court where it was decided that there was an illegal strike and the court at Ndola on 20th November, 1997 held that there was no strike. The issues having been raised and decided upon by a court of compe­ tent jurisdiction at Lusaka, same issues could not be raised again in a court of similar jurisdiction at Ndola. The issues were therefore res judi­ cata] that is matters have been decided upon. In the circumstances, we would D. M. LEWANIKA SUPREME COURT JUDGE