Emmanuel Mukuka vSamfya District Council (SCZ Appeal 135 of 2000) [2001] ZMSC 135 (6 March 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO, 135/2000 HOLDEN AT NDOLA (Civil Jurisdiction) EMMANUEL MUKUKA AND SAMFYA DISTRICT COUNCIL APPELANT RESPONDENT Coram: Sakala, Ag. DCJ., Chirwa and Lewanika JJS 6th September 2000 and 6th March 2001. For the Appellant in Person. For the Respondent no appearance. Sakala, Acting Deputy Chief Justice, delivered the Judgment of the Court. J U D GM ENT This is an appeal against a judgment of the High Court dismissing the Appellant’s appeal against his dismissal from employment with the Respondent Council. At the outset, we must mention that in terms of our rules, we proceeded to hear this appeal in the absence of the Respondent Council or its Advocate as we were satisfied from the submissions made by the Appellant that the Council Secretary was aware of the date of hearing of the appeal. The salient brief facts relevant to this appeal are that sometime in February 1996, the Appellant was appointed as Council Secretary for the Respondent. On 15th January 1998, there was a meeting of the Finance and General Purposes Committee of the Respondent Council where it was resolved and recommended, : J2 : among other things, that some of the Council assets be sold. On 28lh January, 1998, there was also convened an Occasional Committee Meeting by the Council that confirmed the minutes of the previous meeting, in particular the sale of council assets by tender. On 3rd February, 1998, a letter from the Ministry of Local Government and Housing, Lusaka was written addressed to the Council Secretary in which among other things, the Ministry was reacting to the information that the Council was about to sale off Council assets without ministerial consent in accordance with the provisions of the Local Government Act. In the same letter to the Council Secretary, the Ministry advised the Council not to proceed with the sale as it was against the laid down regulations. It was pointed out in the same letter that severe sanctions lie for contravention of the existing law. On 10th February, 1998, the Finance and General Purposes Committee again held another meeting where it considered the tenders. Some assets were offered and sold. Subsequent to this meeting, the entire Council was suspended and the Local Government Administrator, in the name of Mr. G. Kabeke, was put in place to take charge of the Council affairs. On 24th February 1998, the Local Government .13 Administrator wrote the Appellant advising him to stay away from the office. A letter of suspension was written to the Appellant on 25,h February 1998. The following day the 26th February 1998, two charges were preferred against the Appellant namely; incompetence and gross negligence of duty. Under the relevant regulations, the appellant was given 7 days within which to exculpate himself. On 27lh February, the Appellant wrote an exculpatory letter addressed to the Local Government Administrator giving the reasons leading to the sale of Council assets. On 5lh March 1998, the Local Government Administrator wrote a letter of dismissal. On 15th March, 1998, the Appellant appealed to the Local Government Appeals Board against the particulars of the two charges of incompetence and gross negligence. The Appeals Board considered the appeal and dismissed it for lack of merit. The learned trial judge considered the events leading to the appellant’s final dismissal by the Appeals Board. The learned trial judge considered each of the 18 grounds of appeal plus the two additional grounds added during the hearing of the appeal. : .14 : After considering all these grounds, including the additional grounds, the learned trial judge dismissed the whole appeal hence this appeal before us. Before us, in addition to the eighteen grounds, the appellant argued three additional grounds. The first was that the respondent attempted to prepare an indictment against him 26 days after they became aware of the alleged misconduct contrary to the Local Government Services Regulations which require that these must be done 7 days after the Respondent became aware of the misconduct. The second additional ground was a complaint that the Board Secretary, having been instrumental in charging and dismissing him, should not have sat on the Appeals Board as equity demanded that a man cannot be a judge in his own matter. Lastly the appellant also complained that having been employed through a resolution, there should also have been a specific resolution dismissing him from employment. We have very carefully perused the various documents on record. In so far as the dismissal is concerned, the appellant was dismissed by the Local Government Administrator. The Appellant’s first reaction to his dismissal is contained in his letter dated 15th March 1998 to the Secretary of the Provincial Local Government Appeals Board. The heading of that letter is instructive, it reads: