Barclays Bank of Zambia Limited v Benjamin Ndeketeya Mvula (APPEAL NO. 51 OF 2002) [2004] ZMSC 142 (14 September 2004)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 51 OF 2002 HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: BARCLAYS BANK OF ZAMBIA LIMITED APPELLANT AND BENJAMIN NDEKETEYA MVULA RESPONDENT CORAM: CHIRWA, MAMBILIMAAND SILOMBA, JJS. On 8th April, 2003 and 14th September, 2004. For the Appellant: Mr. J. Chashi of Muponda Chashi and Company For the Respondent: Mrs. M. Zalomius of Dove Chambers, with Mr. M. M. lmenda of Veritas Chambers. JUDGMENT Chirwa, J. S. delivered the Judgment of the Court: Case referred to:- 1. Bank of Zambia -v- Kasonde (1995-97) Z. R. 238. This is an appeal from the decision of the High Court in which the learned trial Judge held that the dismissal from employment of BENJAMIN NDEKETEY A MVULA (in this judgment' referred to as the respondent) by BARCLAYS BANK OF ZAMBIA LIMITED (hereinafter referred to as the appellant) was wrongful and ordered that the respondent, by way of damages, be paid two (2) years salary with all other parks with interest at an average short term bank deposit ~ate from date of issue of the writ to date of judgment and thereafter at current lending rate. Facts not in dispute are that the respondent was employed by the appellant on 1st September, 1982 as a Clerk and thereafter worked in various departments of the J 2 appellant. Sometime in April, 1997 head of department where the respondent was working, a Mr. Mike Pipe noticed that there some K490,000 debited to his suspense account which he did not authorize. Investigations were instituted and it was found that a debit note on which the signature of Mr. Pipe was forged was cashed by the cashier of the appellant. Further investigations revealed that this debit note was handed over to the cashier by one Brighton Mtonga, a messenger with the appellant who revealed that he was given the debit note by the respondent a:lthough he had known him for a few months. , , The appellant's investigations zeroed on the respondent the result of which he was, by letter dated ?'h May, 1997, suspended from duty on half pay pending further investigations into the possible involvement of the respondent in the fraud. He was however ordered to report to Internal Audit Zambia Section at 08.00 hours and sign off at 16.45 hours. It appears that internal investigations did not specifically pin the respondent as the person who forged the debit notes and caused them to be cashed; but there was a strong suspicion to at the respondent was involved. A resemblance of a Disciplinary Committee was set up where it is said the respondent was given an opportunity to explain or exculpate himself and the Committee could not reach a decisive resolution but recommended that the respon~ent's services be terminated under Clause 6 of the Agreement. The management agreed wiih this recommendation and terminated the services of the respondent by letter dated 19th August, 1997 under Clause 6 of the Agreement. Clause 6 of the Agreement reads:- ''This Agreement and the employment of the Employee hereunder shall be determinable by one calendar month's notice in writing served at any time by either party upon the other." Following his dismissal, the respondent commenced an action in the High Court for reinstatement to his employment on the grounds that the discharge from employment was based on undisclosed false grounds mala fide and nu11 and void. In his statement of claim, the respondent claimed that he had not been given a hearing concerning the serious but false and malicious allegations made against him thereby denying him natural justice. In her judgment, the learned trial Judge observed that in the suspension letter the respondent was informed that he was suspended because of his alleged involvement in the fraudulent encashment of a voucher for K490,000 and the suspension was to facilitate J .3 the bank carry further enquiries into the allegation. Having given a reason for suspension, she was of the opinion that the bank ought to have given a reason on termination of employment. Having given no reason for the termination, the bank could not use the "escape clause" under the Agreement by giving one month notice or cash in lieu of notice. She then held that the respondent's case was unfairly handled and that he was unjustifiably and wrongfully dismissed but refused to order reinstatement of the respondent but awarded him damaged equivalent to two (2) years salary with all other parks. It is against this judgment and award that the appellant have now appealed. The memorandum of appeal containS' two grounds of appeal, namely ( 1) the learned trial court misdirected itself in both law and fact in concluding that there was not sufficient identification of the plaintiff and as such it follows that his dismissal was null and void; and (2) the learned trial court misdirected itself in both law and fact in concluding that since there was no reason advanced in the dismissal letter, despite a reason being advanced for the suspension, the respondents' case was handled unfairly and was unjustly dismissed. These two grounds of appeal were supported by written heads of arguments and were argument by persuasive oral arguments. On behalf of the respondent also, there were written heads of arguments and also extensive oral arguments. We do not intend to go into these arguments in extenso suffice it to say that we have gone through them and we are grateful to Counsel. What was the respondents' claim? JS the question that ;,,e h~ve to look ·at. In his paragraphs 4-7 of the Statement of Claim, the respondent states:- "4 6 The defendant had earlier alleged that the plaintiff was involved in the fraudulent encashment of a voucher for K490,000 on Mike Pipe's suspense account and was put on suspension pending investigations. The defendant has failed to connect/link the plaintiff to the alleged conspiracy. The plaintiff has not been given a hearing concerning the serious but false and malicious allegations made against the plaintiff by the defendant, thus denying the plaintiff natural justice. J 4 The plaintiff believes that the discharge based on undisclosed false ground is mala fide, null and void". What can be got from the Statement of Claim is that, the respondent was claiming damages for wrongful dismissal based on unheard allegations of fraud. He further alleges that his dismissal was based on undisclosed false grounds which he believed were mala fide, null and void. We have already outlined facts not in dispute that there was an attempt to defraud an account controlled by one, Mike Pipe, to the tune of K490,000 through a voucher that was not originated by the said Mike Pipe. The bank's investigations pointed a general finger at the respondent. He was approached on this suspicion but he denied any involvement. The learned trial Judge found for the respondent on the ground of what she considered, a guilty identification of the respondent in that there was no identification parade conducted at which the respondent was identified. She concluded as follows:- "Having made a finding that the identification of the plaintiff as regards this case was not sufficient it follows therefore that his dismissal was wrongful in that there is a doubt in my mind that he was the one who was behind the encashment of the voucher in issue." On submission that the respondent was discharged in accordance with Clause 6 of the Agreement, the learned trial Judge said:- "I have already said that I do not agree with this view and the facts before me show that the defendant should have given reasons to the plaintiff for dismissing him. Indeed upon suspension he was given a reason and so on termination he was quite entitled to be given a reason. There was a disciplinary Committee hearing and the outcome of the hearing should have been communicated to the plaintiff." It is clear from these quoted passages that the learned trial Judge found the dismissal wrongful because of the insufficient identification of the respondent. The learned trial Judge was of the view that an identification parade ought to have been held, This is a misdirection. Having accepted that this was a civil case and not criminal, it is wrong to expect the same standard of proof as that in criminal matter. It is accepted that the respondent was never formally charged with any disciplinary offence and as such there were no disciplinary proceedings. The guilty identification was done during the J 5 investigative process and the results of these investigations cast very strong suspicion that the respondent was involved in the cashing of the voucher. We bear in mind that the appellant is a financial institution where trust is most important. With this in mind, can it be said that the appellant acted wrongly in terminating the services of the respondent? We think not. The case of BANK OF ZAMBIA -V- KASONDE (1) is distinguishable from the present case. In the K. ASONDE case, there were disciplinary proceedings and the learned trial Judge found that the charge was not proved for various reasons. Whereas in the present case the matter ended up during investigations where strong suspicion was raised against the respondent. Further, in cases of Master/servant, no reasons the necessary to be given for terminating the services by either party. In the present case, the appellant properly used the notice clause of the agreement and the relationship was therefore properly terminated. Having terminated the services as provided for in the terms of employment, there was no cause of action, the learned trial Judge, therefore misdirected herself when she held the termination was wrongful. We allow this appeal and set aside the judgment of the court below. Costs to the appellant to be agreed, in default, to be taxed. D. K. Chirwa, SUPREME COURT JUDGE. I. C. Mmbilima, SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.