Phiri v Bank of Zambia (Appeal 130 of 2004) [2007] ZMSC 173 (30 March 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA/LUSAKA (Civil Jurisdiction) APPEAL NO, 130 OF 2004 BETWEEN: BLACKSON PHIRI AND BANK OF ZAMBIA APPELLANT RESPONDENT CORAM: SAKALA, CJ, SILOMBA AND MUSHABATI, JJS On the 6th December, 2005 and 30th March, 2007 For the Appellant: Ms. M. K. Chalwe, Theotis Chalwe and Mataka Legal Practitioners For the Respondent: NZP JUDGMENT SILOMBA, JS, delivered the judgment of the court. We sincerely regret the delay in the delivery of the judgment. The appellant commenced proceedings in the Industrial Relations Court (hereinafter to be called “the IRC”) for a declaratory order that his dismissal was wrong and unfair. He accordingly, prayed for reinstatement and or early retirement and in the alternative damages for wrongful and unfair dismissal. The facts, not in dispute, were that the appellant was employed by the respondent from the 27th of April, 1978 to the 23rd of April, 1997; that prior to his dismissal, the appellant was a reconciliation officer. As a reconciliation officer, the appellant was involved in confirming paid out cheques against the paying account. The cheques were reconciled on a monthly basis after which the cheques were put in the strong room. The reconciliation was done monthly to allow cashed cheques to accumulate. J 2 The cashed cheques were referred to the appellant by the banking office of the respondent. Everybody in the department where the appellant worked had access to the strong room. According to the appellant, his cabinet in the strong room had a defective lock, which made the keeping of cheques there vulnerable. He reported the state of his cabinet to his supervisor and requested for another one. He made the request after the disappearance of cheque No. 00077761 in the sum of K9,283,114.29. The appellant discovered that the cheque was missing after a reconciliation. The investigation that followed revealed, according to the appellant, that the cheque was deposited in a personal account at the First Alliance Bank. On the missing K54,000,000, which led to disciplinary proceedings and dismissal, the appellant testified before the trial court that the cashed cheque and statements relating to the amount were passed to him by the banking office for reconciliation. However, when the security department officials of the respondent inquired for the cheque from the appellant it could not be located from the bundle of cheques kept in the defective cabinet. Consequently, the appellant was asked to give a statement to the security department on the disappearance of the cheque. In his statement, the appellant recalled that he received the cheque, which he put in the defective cabinet in the strong room. He reported that he could not determine the circumstances that led to the disappearance of the cheque because everyone had access to the strong room. Following his suspension from employment, the appellant was, on the th 28 of February, 1997, charged with willful negligence of duty causing financial loss to the respondent bank. The appellant was baffled by the J 3 charge as his duty or responsibility related to handling already paid out cheques. The cheques were, as far as he was concerned, invalidated as they had already been honoured by the respondent bank. On the 25th of March, 1997, the appellant was invited to a disciplinary hearing. At that meeting, he told the panel that he had reported to his supervisor about the defective cabinet, which rendered the safety of cheques vulnerable. On hearing this, the meeting was adjourned to a later date to allow the appellants’ supervisor attend the meeting. As far the appellant could recall, his supervisor, Mr. Imasiku Mwanang’umbi, never attended any meeting because the panel never reconvened. He told the trial court that even Mr. Mwanang’umbi was charged but he was not discharged from employment. On the 23rd of April, 1997, the appellant was discharged from employment, after (9) years of service, without being called to the next adjourned meeting. He appealed against the discharge but his appeal was dismissed without being heard. While the appeal was pending, the appellant was charged with corrupt practices by the Anti Corruption Commission but was later discharged by the court because the prosecution did not adduce any evidence against him. The evidence in rebuttal was given by two witnesses of the respondent. Their combined evidence was that a cheque valued at approximately K54 million and bearing the name of Charles Chalenga, as investor, was lost in the Government Securities Department; that the cheque was intended for re-investment. The investigations that followed revealed that the cheque was deposited at a commercial bank. The evidence was that the cheque should not have left the respondent bank before it was re­ invested on the instructions of the investor. J 4 The investigations also showed that without following the procedure the cheque went to the appellant and later found itself at Prudence Bank where it was transacted upon. Upon the transaction and opening of an account, Prudence Bank sent the cheque to the respondent bank where the appellant failed to account for it. In the process, the respondent lost K54 million plus as the investor, Charles Chalenga, was entitled to reinvestment. In the light of the foregoing evidence, the respondent asserted that it was not correct to say that the bank did not lose any money. As far as the respondent was concerned, the appellant was the custodian of the cheque for K54 million including other cheques, and that if he had problems with his cabinet he should have surrendered the cheques to his manager for safe keeping. According to the respondent’s evidence, the appellant was heard at the first hearing and according to procedure his attendance on appeal was not necessary. In the light of the evidence, the IRC, in its judgment of the 5th of May, 2003, found that there was no dispute that cheque No. 00083411 in the sum of K54,686,769.25 went missing while in the custody of the appellant. After looking at the manner the disciplinary proceedings were conducted, the IRC found that there was no prejudicial conduct on the part of the respondent, which could have prejudiced the appellant in the conduct of his defence at the disciplinary hearing. On the totality of the evidence, the trial court found that the respondent had proved the charge of negligence against the appellant and dismissed the complaint. The appeal against the judgment of the IRC of the 5th of May, 2003 is premised on a total of four grounds of appeal as amended. These are tabulated as follows:- J 5 1. 2. 3. 4. That the learned Judge in the court below erred in law and in fact when he failed to look into the reasons advanced by the respondent for terminating the appellant’s contract of employment and found the termination to be justified; That the learned Judge in the court below misdirected himself in law and in fact by misunderstanding the sequence of events that led to this cause of action and therefore arriving at the wrong conclusion at law; That the learned trial Judge erred in fact and in law by failing to appreciate that procedural impropriety was a necessity to attaining justice for the appellant in the court below; and That the learned trial Judge erred in fact and in law when he held that there were no exceptional circumstance arising from this matter to warrant reinstatement and an award for salary arrears. Before we deal with the grounds of appeal, we would like to express our displeasure with the manner in which they are framed. What constitutes “Court” under Section 89 of the Industrial and Labour Relations Act, Chapter 269, is explained in very clear language. Under the Act, the proceedings of the court are presided over by the Chairman or Deputy Chairman and when hearing any matter the court is duly constituted if it consists of three members or such uneven number as the Chairman may direct. It follows, therefore, that a decision or an award of the court cannot be a decision or an award of the presiding Judge alone as the grounds of appeal seem to suggest. Coming to the appeal before us, we note that there are no written heads of argument from the respondent. At the hearing of the appeal, counsel for the appellant informed us that counsel for the respondent was J 6 aware that the appeal was due for hearing on that date. When he was allowed to present the appeal, counsel for die appellant simply relied on the appellant’s heads of argument, the record of appeal, including the supplementary record of appeal and the submissions he made in the court below and no more. We have critically considered the heads of argument, the record of appeal and the judgment of the trial court and in the view we take of this appeal we do not find it necessary to summarize the heads of argument. We take this position because the grounds of appeal, except ground three, are challenging the findings of fact, an act not permitted under Section 97 of die Industrial and Labour Relations Act. Under the said section, an appeal to the court against the decision or award of the IRC can only be based on any point of law or any point of mixed law and fact. This being the case grounds, one, two and four are declined. Coming to the third ground, which in our view has attempted to raise issues of law and fact, we note that it has never been denied that the cheque for K54,686,769.25 was, before it disappeared, in the custody of the appellant. It is him who collected it from the respondent’s Securities Department. The investigation that followed after its disappearance showed that it had been banked at Prudence Bank where an account was opened for it. After opening the account, the cheque was returned to the respondent but it could not be found. The appellant’s evidence that he kept the cheque in a defective cabinet could not hold because, as per the evidence of the respondent, he should have handed it to his supervisor, which he did not do. The argument of the respondent was that the loss of the cheque caused financial loss because the appellant took away the cheque when the amount was due for reinvestment on the instructions of a client. Consequently, the appellant was charged with willful negligence of duty causing financial loss to the Bank in accordance with Clause 6:3 (c) of the Respondent’s Disciplinary Code. The appellant exculpated himself and he was later invited to a disciplinary hearing, accompanied by union officials since he was unionized. The disciplinary committee found him guilty and discharged him from his employment with the Bank. He was allowed to appeal to the appellate committee where his appeal was dismissed. Like the trial court found, we have not come across any evidence of procedural impropriety. Our perusal of the evidence before the trial court confinns that the disciplinary procedure in the respondent bank was followed to the letter and spirit of the Disciplinary Code. This ground has no merit as well. On the whole, the appeal has failed and we dismiss it with costs to the respondent to be taxed in default of agreement. E. L. Sakala, CHIEF . JUSTICE. S. S. Silomba, SUPREME COURT JUDGE. C. S. Mushabati, SUPREME COURT JUDGE.