Mulwanda v Zambia Telecommunications Company Ltd (Appeal 28 of 2010) [2015] ZMSC 174 (26 March 2015)

CQUH.-T IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 28/2010 SCZ/8/161/2009 BETWEEN: EDWIN R MULWANDA Appellant AND ZAMBIA TELECOMMUNICATIONS COMPANY Respondent LIMITED : Chibesakunda, Ag CJ, Wanki, JS, and Lengalenga, Ag On 10th July, 2014 and 26th March, 2015 For the Appellant: Mrs. L. Mushota Associates Messrs Mushota & For the Respondent: Mr. J. B. Malama - Legal Counsel (ZAMTEL) LENGALENGA, Ag JS, delivered the Judgment of the Court. Cases referred to: 1. ZAMBIA NATIONAL PROVIDENT FUND v YEKWENIYA MBINIWA CHIRWA (1986) ZR 70 2. NATIONAL BREWERIES LTD v PHILIP MWENYA (2002) ZR 3. ZAMBIA SUGAR PLC v WINCHO GUMBOH ( 4. ANZ GRINDLAYS BANK (Z) LTD v KAO NA (1995/97) ZR 85 JI 5. BANK OF ZAMBIA v K ASON DE (1995/97) ZR 238 6. NELLY NYOKA v ZAMBIA NATIONAL COMMERCIAL BANK PLC - SCZ APPEAL N° 28a OF 2008 7. ZAMBIA ELECTRICITY SUPPLY CORPORATION LTD v DAVID LUBASI MUYAMBANGO - SCZ APPEAL N? 7 OF 2006 8. ATTORNEY GENERAL v MARCUS ACHIUME (1983) ZR 1 9. PHILIP MHANGO v DOROTHY NGULUBE & OTHERS When this appeal was heard, we sat with the Honourable Lady Justice Chibesakunda who has since retired. This judgment, therefore, is by the majority. This is an appeal against the judgment of the High Court at Lusaka delivered on 13th July, 2009 in which the learned trial Judge dismissed the appellant's action against the respondent in which he was claiming the following relief: (a) Damages for wrongful dismissal (b) Damages for malicious prosecution (c) Re-instatement with all dues or in the alternative terminal benefits and allowances and redundancy package due to the employee (d) Special damages totaling K12 320 000 (e) Interest on (c) above at current bank lending rate from the date of the trial (f) Costs. J2 The facts, on which there is common ground in this matter are that the Appellant was employed by the Respondent, as a Mechanical Technician on 3rd February, 1986. On 5th February, 2002, the Appellant was suspended by the Respondent, based on reports of alleged theft of diesel by the Appellant, to facilitate the investigations into allegations levelled against the Appellant. The Appellant was dismissed from employment on 13th September, 2002 pursuant to the provisions of the Disciplinary Code and Grievance Procedure. On 24th November, 2004, the Appellant's advocates wrote to the Respondent informing them of the Appellant's successful appeal against conviction and sentence of three years imprisonment. They requested the Respondent to re-instate him in his substantive post but the Respondent refused to do so. By a letter dated 6th December, 2004, the Respondent informed the Appellant's advocates that their decision was premised on the provision under section 4 Part II of the Zambia Telecommunications Company Limited Disciplinary Code which states that an employee involved in a criminal case shall not be dismissed or re-instated on the basis of the judgment of the court of law but in accordance with the Company's rules. The Respondent's refusal to J3 re-instate the Appellant led to his suit against the Respondent in the court below. Dissatisfied with the judgment of the Court below, the Appellant appealed to this Court and advanced the following grounds of appeal: 1. The Court below erred in fact and law when it held that the Appellant was the one who hired a vehicle No. AAR 7232 and siphoned 710 litres of diesel and that the Appellant was seen depositing keys for the Namitondwa Repeater Station which was used to open the engine room where the diesel was stolen from, when the evidence did not so establish. 2. The court below erred in fact when it did not evaluate the evidence of the Appellant in the light of that of the guards, one of whom knew the Appellant for more than five (5) years and the other guard Mr. Mwanza who agreed that the Appellant stole diesel only upon being prompted to say so. 3. The Court below erred in law and in fact when it held that the Respondent did not have to comply with the procedural rules of the Disciplinary Code on the strength of the decision in ZAMBIA NATIONAL PROVIDENT FUND v YEKWENIYA MBINIWA CHIRWA1, In support of ground one, it was the Appellant's contention that it was never established that the Appellant was the person seen at the station on the night of the alleged theft. It was further contended that claims were made behind his back but none of the informants were called J4 to challenge him that they had seen him and that in those circumstances, there was unfairness in the investigations and in the case hearing. It was submitted by the Appellant that DWl's evidence was crucial in this matter because he testified as follows: "I never saw him handling the keys or depositing them anywhere. They said they wanted a guard to identify who went there. The guard was known to me. I was with the diesel technician and the driver..... " It was submitted that DW2's evidence was speculative and contradictory as he claimed to have received a phone call from an unnamed person at Lamya house at 01:00 hours about a theft of diesel at Namitondwa Repeat Station. It was submitted further that the said person was not called as a witness to support DW2's testimony. It was contended that DW2 contradicted himself when he denied being with two security guards. It was further submitted that the Disciplinary Code recognised a good record of an employee and that this case, the Appellant denied wrong­ doing. It was submitted that ground one must succeed as the Appellant had no previous record of bad conduct. J5 In support of ground two, it was the Appellants contention that the Court below did not evaluate the evidence. It was alleged that the Appellant was dismissed for entering Namitondwa Repeater Station with "four other characters" masquerading as a boss and stole therefrom. It was submitted that the summary dismissal stated that he was positively identified by two station guards, one of whom knew him very well over a period of five years. It was noted that the Appellant also admitted knowing the guard, namely Mr. Nkhata. It was submitted that in light of that evidence, the guard knew that he was not a boss and would have stopped him. It was further submitted by the Appellant that the other guard, one Mwanza agreed that the Appellant stole diesel upon being prompted by one Inspector Kambele of Mumbwa Police who was not there. The Appellant, therefore, argued that there was no proof that he was 'positively7 identified as the perpetrator. He submitted that even the summary dismissal letter was not supported by evidence. It was the Appellant's contention that the Court below completely ignored DWl's evidence that he never gave the Appellant the keys as that station was okay at that time. It was submitted that DW1 corroborated the J6 Appellant's evidence that he was not there as alleged. It was also contended that DW2 was not one of the guards on duty on the night of 27th January, 2002. It was submitted that although the Appellant appealed against his dismissal he was not called or communicated to. The Appellant argued that all his accusers had already convicted him and that they did not want to give him an opportunity to disturb their conclusions. It was submitted that this ground must succeed. In ground three it was the Appellant's contention that the Court below erred in law and fact when it held that the Respondent did not have to comply with the procedural rules of the Disciplinary Code on the strength of the decision in ZAMBIA NATIONAL PROVIDENT FUND v YEKWENIYA MBINIWA CHIRWA. In support of ground three, learned Counsel submitted that the case hearing is provided for in the Disciplinary Code, and it requires the employee to be in attendance. She referred us to paragraph 2 on page 38 of the Record of Appeal which states: "If an employee refuses to attend a case hearing, he will be given written notice by the personnel officer setting another date and should he fail to attend the second time, the case will be heard in absentia and the sanctions will stand." J7 It was contended that in this case the Appellant was neither present nor was he given an opportunity to be heard and that as such his wrong­ doing was not established and rules of natural justice were contravened. It was further contended that the Respondent infringed its own rules of ensuring that cases are carefully investigated. Learned Counsel argued that disciplinary action should not only be fair but just, but should be seen to be so and that principles of law should be observed including giving a party the opportunity to be heard. She argued that the decision in the YEKWENIYA MBINIWA CHIRWA was only applicable where it had been established that an employee had erred and that it was not intended to allow employees to ignore rules of natural justice. Mrs. Mushota submitted that it was only after a fair and thorough investigation establishing guilt of an employee can the employer not be liable for failing to observe the laid down procedures. It was submitted further that in NATIONAL BREWERIES LTD v PHILIP MWENYA2 where the YEKWENIYA M. CHIRWA case was confirmed, the Court emphasized that wrong-doing had to be established J8 and it stated that in the PHILIP MWENYA case, the Respondent had admitted the offence in question and negligence on his part was established. In the present case, it was argued that the matter was highly handedly dealt with and that therefore, it was disputed that the Appellant committed the offence for which he was dismissed. It was contended, therefore, that it was imperative that the laid down rules of procedure which formed part of the Appellant's contract, should have been observed. Learned Counsel submitted that any other interpretation or understanding of that invalidated the need to have Disciplinary Codes. It was further argued that in this case in casu, there was no finding of fact that the Appellant was properly dismissed. The Appellant relied on ZAMBIA SUGAR PLC v WINCHO GUMBOH3 for their argument that parties were bound by terms of their agreement freely entered into unless fraud is proved. Mrs. Mushota drew our attention to the fact that the Appellant had claimed re-instatement with all the dues or in the alternative terminal benefits, all allowances and redundancy or other benefits due to him. She submitted that this Court had held in many cases that re-instatement is J9 awarded only in rare or exceptional cases. She submitted further that if this appeal is allowed and if this Court is inclined to hold that the Appellants case was not a special or exceptional case in which he may be re-instated, the Appellant was seeking to be awarded damages and ancillary relief. She relied on this Court's decision in ANZ GRIN PLAYS BANK (Z) LTD v KAONA4 and BANK OF ZAMBIA v KASONDE5 to support the Appellant's argument. It was submitted that this ground should succeed. In conclusion, it was the Appellant's prayer that this appeal be allowed with costs in the Court below and in this Court. The Respondent relied on their heads of argument filed on 18th June, 2014. In response to ground one, learned Legal Counsel, Mr. Malama submitted that the Appellant's dismissal was effected after he was charged, exculpated himself and he appeared before the Respondent's Disciplinary Committee which found him guilty as charged. It was the Respondent's contention that the Court below made a finding of fact that the Appellant was the one who hired the motor vehicle registration number AAR 7232, which was supported by the evidence of J10 DW2 who investigated the matter. It was submitted that DW2 testified that he saw the Appellant putting the keys for Namitondwa Repeater Station back into the key box the morning after the theft. DW2 had also testified that prior to that incident of the Appellant depositing the keys in the key box, he had inspected the key box and he found that the keys were missing. It was further submitted that DW2 maintained his position on the issue of the keys in cross-examination. It was submitted that, therefore, the finding of fact made by the Court below should not be disturbed as it was supported by the evidence of DW2 on record. The Appellant's argument that DW2's evidence was speculative and contradictory was dismissed by the Respondent's Legal Counsel for having no basis. It was also the Respondent's contention that even though the Appellant had alleged in his heads of argument that DWl's evidence corroborated his evidence, that was not the correct position. It was argued that DWl's evidence merely proved that the Appellant was in the transmission room the day after the theft at Namitondwa Repeater Station and that he was spotted near the area where the key box was. JU Learned Legal Counsel noted from the Appellant's heads of argument that he alleged that in hearing his case by the Respondent's Disciplinary Committee, claims were made 'behind his back' as none of the informants were called to confront him that they saw him at Namitondwa Station. He argued that the issue of calling witnesses was addressed by DW3 in cross-examination on that point when he stated that the Respondent's Disciplinary Code did not provide for calling of witnesses. He further drew our attention to page 37 under the heading "Case Hearing/' of the Record of Appeal. He submitted that the contents thereunder, clearly stated that the role of disciplinary panel was merely to interview the accused employee and avail itself any other information in addition to written evidence. It was submitted that that was done in the Appellant's case. He further relied on the case of NELLY NYOKA v ZAMBIA NATIONAL COMMERCIAL BANK PLC6 where we made following observation: .we have stated in the past that where there is a disciplinary code, the only function of a trial court is to determine whether the proper procedures were followed and whether the disciplinary body acted fairly and justly in arriving at its decision. It is not part of its function to rehear the proceedings of a disciplinary body set up in the code or to act as an appellate court from the proceedings." J12 It was further submitted that the same position was re-stated in ZAMBIA ELECTRICITY SUPPLY CORPORATION LTD v DAVID LUBASI MUYAMBANGO7. It was, therefore, the Respondent's submission that the Court below was on firm ground to find as it did, given its limited jurisdiction in such cases. It was noted that ground one attacks the findings of fact of the Court below. Learned Legal Counsel submitted that this Court has stated in a plethora of authorities that shall not interfere with findings of fact of lower courts unless they are made without evidence to support them or they are made upon misapprehension of the facts. He relied on the case of ATTORNEY GENERAL v MARCUS ACHIUME8, Mr. Malama referred us to the trial court's finding of facts which form the basis of the Appellant's ground one, in the Record of Appeal. He argued that the said findings of fact were arrived at by the Court below after evaluating all the evidence submitted before it. He, therefore, urged this Court not to disturb those findings of fact as they were supported by evidence on record. Legal Counsel submitted further that even the entries in excerpts from the Respondent's occurrence book exhibited at pages 83 J13 and 84 of the Record of Appeal showed that the Appellant was implicated in the theft. It was submitted that as the burden of proof in civil matters is based on a balance of probabilities, based on that preponderance, the Court below found that the Appellant had failed to prove his case. It was submitted that this ground of appeal lacks merit and should not be allowed. In ground two, it was the Appellant's contention that the Court below erred in law and fact by creating or importing evidence in favour of the Respondent, without balancing with that of the Appellant to ensure fairness. In response to ground two, it was submitted on behalf of the Respondent that the Court below did not err in fact or law as it evaluated all the evidence adduced before it. It was submitted further that it is trite law that an unbalanced evaluation of the evidence by the Court below entitles this Court to interfere with findings of fact of the Court below as enunciated by this Court in the ACHIUME case where we stated: "An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make, and entitles the appeal court to interfere." J14 Learned Legal Counsel argued that from the judgment of the Court below, it was clear that the Appellant's evidence was considered as the Court below even went to the extent of summarizing the evidence adduced by both parties before making its decision. It was submitted that the Court below in its judgment stated as follows: "I have considered evidence in this matter and the submissions regarding this case. The plaintiff's contention is to the effect that the respondent has failed or refused to re­ instate the plaintiff despite that he was acquitted of a criminal charge by a court of law." It was further submitted that part of the Appellant's arguments under this ground of appeal appeared to be premised on the expectation that the Court below should have sat as an appellate court, which was wrong. It was submitted that an example was the Appellant's argument that the summary dismissal letter was not supported by evidence adduced in Court. It was the Respondent's contention that the Appellant's argument was misplaced. It was further submitted that even the Appellant's argument that one of the guards knew him for over five years was irrelevant. It was noted that the Appellant, in evidence-in-chief, stated that one of the guards J15 confirmed that he stole the diesel. Learned Legal Counsel submitted that that evidence given by the Appellant himself, was crucial and is found in the Record of Appeal where the Appellant stated as follows: "I was called in and I found Inspector Ernest Kambele. Then Mr. Nkhata was also called in and explained that he knew me when I had been working on the engine for five (5). Then they enquired if I stole diesel. Mr. Mwanza agreed because Kambele gave him signs to agree that I stole diesel. I was asked if I knew Mr. Nkhata and I admitted knowing him for a long time." It was submitted that from the Appellant's own evidence, he admitted that one of the guards agreed in his own presence that he was the one who stole the diesel. It was submitted further that, therefore, there was evidence that he was the one who stole the diesel, as was found by the Court below. Legal Counsel further submitted that the Appellant's argument that the guard only agreed because he was given the signal to agree was a highly convenient one and that the Court below was on firm ground not to consider it. Mr. Malama had also noted that the Appellant had argued that the Court below completely ignored aspects of DWl's evidence. He submitted that the Appellant argued that DWl's statement that "the station was okay at that time," was ignored. It was submitted on behalf of the J16 Respondent that that statement had been twisted out of context by the Appellant. It was argued by Legal Counsel that the issue was that DW1 denied giving the keys to Namitondwa Repeater Station to the Appellant because everything was okay at the station and that as such there was no need for him to have had possession of the keys in the first place. Mr. Malama submitted further that the same witness, DW1, in his evidence further stated that at the identification parade: "the guard for the repeater station at Namitondwa did identify MR. MULWANDA as somebody who had visited the station on 27th January, 2002." It was further submitted that the Appellant had also argued that the Court below failed to take into account entries in the occurrence book. It was submitted that the Appellant's statement related to one of the guards, Biemba who was on duty at Namitondwa Repeater Station on the night of the theft. In the Appellant's evidence-in-Chief, he stated that: "There was nothing in the OB book that I had gone there to steal diesel. BIEMBA who was on duty was called who refused having known me since he had been a guard for only one month." It was the Respondent's contention that the reason why the guard, Biemba did not know the Appellant was because he had only been working for one J17 month when the theft occurred. It was submitted that the Appellant's argument that because he had worked for the Respondent for a long time therefore, he should have been known to Biemba, is incorrect. It was the Respondent's submission that this ground lacks merit and should be dismissed. In response to ground three, it was the Respondent's contention that the Court below did not err in law and in fact when it relied on the decision in ZAMBIA NATIONAL PROVIDENT FUND v YEKWENIYA MBINIWA CHIRWA. The Respondent's argument was that ground three has been couched in a misleading manner by the Appellant and it states as follows: "The Court below erred in law and fact when it held that the Respondent did not have to comply with the procedural rules of the Disciplinary Code on the strength of the decision in ZAMBIA NATIONAL PROVIDENT FUND v YEKWENIYA MBINIWA CHIRWA." It was submitted by the Respondent that the Appellant had not shown where the Court below made the statement that gave rise to the ground three. It was submitted further that what the Court below stated on the referenced case and prelude thereto can be found in the Record of Appeal as and reads as follows: "Further, I have noted that procedure was followed as the J18 Plaintiff herein was charged, he exculpated himself, he appeared before the disciplinary committee, his case was heard and he was informed of his right of appeal. It is therefore my considered view that even if the procedure is not followed the position of the law is clear. In the case of ZAMBIA NATIONAL PROVIDENT FUND v YEKWENIYA MBINIWA CHIRWA the Supreme Court held that: 'where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is so dismissed, no injustice arises from a failure to comply with the laid down procedure in the contract and the employee has no claim on that claim on that ground for wrongful dismissal or declaration that the dismissal was wrongful/ " Learned Legal Counsel argued that the Court below never stated that the Respondent did not have to comply with the procedural rules of the Disciplinary Code. He submitted that firstly the Court below found that there was overwhelming evidence that the Appellant committed the offence for which he was subsequently dismissed. Secondly, the Court below noted that the disciplinary procedure was followed. Thirdly, and in the alternative, the Court below was of the considered view that even if the procedure was not followed to the letter, the fact that there was overwhelming evidence that the Appellant committed the offences, meant that no injustice was done to the Appellant. J19 Further, in this ground, it was the Appellant's argument that the disciplinary hearing was unfair because he was not present and as such he was not given an opportunity to be heard. It was the Respondent's contention that the Appellant's line of argument was clearly an afterthought and should not be considered as the allegations in his argument were baseless. Mr. Malama submitted that at page 60 of the Record of Appeal, the Appellant gave a brief account of what transpired at his case hearing, thereby indicating that he was at the case hearing. He submitted further that nowhere in his statement did he complain of not being given an opportunity to be heard. He further submitted that from the letter at page 50 of the Record of Appeal it was clear that the Appellant provided an exculpatory statement and tendered oral evidence, all of which were considered by the Disciplinary Committee. It was further submitted that the Court below made a finding of fact that was supported by evidence on record that there was overwhelming evidence that the Appellant had committed the offences for which he was dismissed. This Court was asked not to interfere with that finding of fact as it was supported by collective evidence adduced before Court. J20 Legal Counsel's response to the Appellant's reference to the Constitution of Zambia by the Appellant was that it was made out of convenience with no definite direction as he failed to state the exact provision that the Respondent may have breached in handling the Appellant's case. In response to the Appellant's claim for re-instatement, it was the Respondent's submission that the Court below was on firm ground to have refused to order re-instatement. It was submitted further that the Appellant's claim for re-instatement in the Court below was premised on the fact that the High Court had overturned his conviction for theft by the Magistrate's Court. It was submitted that that was clear upon perusal of the Appellant's Statement of Claim as observed by the Court below in its judgment exhibited in the Record of Appeal. The Respondent relied on this Court's decision in BANK OF ZAMBIA v KASONDE to support their submission that the trial Judge properly addressed her mind to the claim for re-instatement and was on firm ground when she refused to award the Appellant the re-instatement claimed. J21 Finally, it was submitted that in the alternative, if this Court was inclined to find that there was wrongful dismissal of the Appellant, which they did not accept, the Appellant was not entitled to re-instatement as there were no extraordinary or exceptional circumstances to warrant an order of re-instatement of the Appellant. It was further submitted that the Appellant having been dismissed in the year 2002, re-instatement would, therefore, not be a practical option because of the lapse of time and also the fact that the Respondent has undergone restructuring over the years. It was submitted that this ground of appeal lacks merit and should also fail. We have considered the grounds of appeal in this case, the arguments by both parties, the authorities cited and the judgment of the court below. We will deal with the three grounds ground by ground. With regard to ground one, we accept learned Legal Counsel's submission that it is based on the findings of fact made by the court below. Upon perusal of the court's judgment, it was confirmed. Further to that we noted that the learned trial Judge made reference to evidence of DW2 showing that the Appellant was seen depositing the keys for Namitondwa. J22 Repeater Station which key was later used to open the engine room from where the diesel was stolen. In considering this ground of appeal, we wish to reiterate what we stated in PHILIP MHANGO v DOROTHY NGULUBE & OTHERS9, on our reluctance to interfere with findings of fact made by the trial court when we held that: "The Court will not reverse findings of fact made by a trial Judge, unless it is satisfied that the findings in 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 observed that from the evidence on record, DW2 testified that he saw the Appellant with the keys when he stated: "There was theft of diesel, I was not told the amount stolen. I informed the person who was there to hang on I went to Lamya House whilst there at 06:00 hours, I decided to get keys for transmission room to get the keys for that particular station as it was reported that the people who went there used keys to open. When I got there I went to see the person who was manning the room. I inform Mr. Mwanza of what had transpired, I did not find the keys, shortly I saw Mr. Mulwanda Edwin who came into the transmission room and when he saw me he hid the keys in the hand at his back and walked towards the key box and put it in the box. When I asked him he told me that he had put in the keys for Namitondwa Repeater Station which had J23 been given to him by his friend to deposit them. I asked him to bring the keys and he did so." We further noted that the same witness, DW2 further testified that when the driver was called by the police and he approached the vehicle where DW2 was with the Appellant who was at the back, he identified the Appellant as the person who had hired them to Namitondwa Repeater Station. From the excerpts of DW2's evidence it is clear that the findings of fact challenged by the Appellant in ground one were supported by evidence on record. Further, the Appellant in this appeal has not shown that the findings of fact made by the learned trial Judge as contained in ground one were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts. In the circumstances, therefore, we find no reason to warrant reversal of the said findings. We find no merit in ground one and we dismiss it. We turn to ground two. From the foregoing, and our further examination of the evidence of DW2 disclosed that he was the Security Officer who was supervising the only security guard, Mr. Mwanza. We find J24 no evidence on record to prove that Mr. Mwanza agreed that the Appellant stole diesel because he was prompted to say so. Therefore, in the absence of proof of the same, the Court below only had the Appellant's allegation, such that it was a question of credibility and evaluation of the evidence. The Court below found that there was overwhelming evidence against the Appellant. We were also of the considered view that on the evidence before the Court below, the learned trial Judge properly evaluated the evidence. We, therefore, find that she was on firm ground in holding as she did. We find no merit in this ground and we also dismiss it. With regard to ground three, we had occasion to look at what was stated by the learned trial Judge in the judgment. Since we are of the considered view that the Appellant twisted the statement out of context, it is quoted as follows: "Further, I have noted that procedure was followed as the plaintiff herein was charged, he exculpated himself, he appeared before the disciplinary committee, his case was heard and he was informed of his right to appeal. It is, therefore, my considered view that even if the procedure is not followed the position at law is clear." __ -----------------■———.... ..... ............ J25 The learned trial Judge proceeded to quote what this Court stated on failure to comply with the laid down procedure where there is no dispute that an employee has committed an offence. From the foregoing, it is clear that the Appellant misinterpreted or misconstrued the words of the Court below. We find no merit in this ground and we dismiss it. All in all, we find no merit in this appeal and we dismiss it accordingly and award costs to the Respondent. The same to be taxed in default of agreement. Retired L. P. Chibesakunda ACTING CHIEF JUSTICE M. E. Wanki SUPREME COURT JUDGE F. M. Lengalenga AG SUPREME COURT JUDGE