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Kanga v Zambia Revenue Authority (Appeal 194 of 2015) [2018] ZMSC 260 (20 July 2018);
Civil procedure – Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia - whether an appeal from the Industrial Relations Division of the High Court based on findings of fact can lie to the Court of AppealCivil Procedure – When the Supreme Court can reverse findings of fact
Civil Procedure – whether issues not raised in the Court below can be raised on appeal
Headnote
The deceased was employed in 2004 as a legal officer of the Respondent. The Respondent employed 2 other legal officers in 2007 as the deceased’s juniors working under the deceased’s supervision. The contracts of employment of the 2 junior legal officers provided for higher salaries than the deceased. In the course of the deceased’s employment, he was from time to time requested to render opinions on matters concerning the operations of the Respondent. On one or two occasions, second opinions were sought for the opinions given by the deceased. The deceased was appointed to act as legal counsel. The Respondent then advertised for the position of legal counsel. The Deceased and one of the junior legal officers applied for the position and after the interview the position was given to the junior legal officer. This infuriated the deceased and prompted him to resign on 28 April 2011 after giving 1 months’ notice. Following this, the deceased instituted proceedings in the Industrial and Labour Division of the High Court contending that the treatment that the Respondent subjected him to amounted to constructive dismissal. The court below dismissed the deceased’s allegations that the conduct amounted to breach of contract leading to constructive dismissal. The Appellant appealed against this decision.
Held
1. An appeal based on findings of fact cannot lie to the Court of Appeal from the Industrial Relations Division of the High Court pursuant to section 97 of the Industrial and Labour Relations Act.
2. In order for the Supreme Court to reverse findings of fact by a trial Court the findings must be such that they are not supported by the evidence or are perverse. The Court below did not misdirect itself in the evaluation of the evidence and conclusion that the
deceased was not constructively dismissed. The findings did not meet the test in the Wilson Masauso Zulu case as they were supported by his evidence. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 followed
3. Issues not raised in the court below cannot be entertained on appeal.