Felix Muyenga Kabika v Attorney General (SCZ Appeal 131 of 1999) [2001] ZMSC 138 (18 May 2001)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA SCZ. APPEAL 131/99 (CIVIL JURISDICTION) BETWEEN: FELIX MUYENGA KABIKA APPELLANT AND THE ATTORNEY GENERAL RESPONDENT Coram: Chaila, Lewanika and Chibesakunda, JJS on 22nd June 2000 and 18th May 2001 For the Appellant: Mr Kongwa of Messrs Kongwa and Company For the Respondent. No Appearance JUDGMENT Chibesakunda JS delivered the judgment of the Court This is an appeal against the Industrial Relations Court’s (IRC) judgment in a complaint lodged by Felix Muyenga KABIKA, the Appellant, against the Attorney General, the Respondent, sued on behalf of the Ministry of Information and Broadcasting Services. The Appellant had complained before the IRC that he was forced to retire in public interest from the Public Civil Service, working in the Ministry of Information and Broadcasting Services as Principal Information Officer. His retirement was therefore unlawful, illegal, unjust and null and void. He asserted that this was so because the retirement was as a result of recommendations made by the Permanent Secretary, which in turn was based on discrimination, social status, tribal extraction, political affiliation, etc., according to him The following grounds are the reasons for stating so:- 1) that he was victimized for disclosing and bringing to light the malpractices of Senior Officers in the Ministry of Information and Broadcasting Services; J2 2) 3) 4) 5) that he was unfairly treated because the Public Service Commission who made the final decision in his case did not hear his side of the story; that the laid down disciplinary procedures were not followed; that there is no basis in the allegations made against him in the charge letter dated 18,h March 1993 which in any event defective since it lacks specific and important details of misconduct to enable him answer them adequately; and that the recommendation by the Permanent Secretary, Ministry of Information and Broadcasting Services to the Public Service Commission to retire him in public interest before final determination of the charge made earlier against him is contrary to the Public Service Regulations No. 33. The relief he sought was nullification of the retirement notice and reinstatement to his former job and payment of arrears of salary from the date of public retirement to the date of reinstatement or in the alternative nullification of the retirement, payment of arrears of salary and pension benefits due tat the date of his normal retirement. The salient facts before the IRC are that the Appellant was employed in the Civil Service in the Ministry of Information and Broadcasting Services for a period of 25 years. During his term of employment he rose to the rank of Principal Information Officer. During his service, according to his evidence he received a lot of compliments for exemplary work. He produced documents establishing this. He testified that after the change of Government in 1991 he received a lot of letters from the Respondent accusing him of indiscipline, disobedience, lacking public service attitude, which meant that he was politically biased in his performance of duties. It was his evidence that the new Government (MMD) sidelined him by excluding him from decision-making meetings. He was unfairly treated because the Public Service Commission which rendered the final decision in this matter did not hear his side of story when they decided to retire him in public interest. He was retired on 31st May 1994 but should have been retired either at the age of 55 years or after 30 years continuous service in order for him to qualify under the Civil Service Act for normal retirement package. He had only worked for a period of 25 years when he was retired. J3 Another salient fact is also that when he was retired in public interest, the Respondent wrote him a letter, retiring him and gave him very short notice to leave his office. He was humiliated when an armed guard escorted him out of his office. He was not given three months notice or even payment in lieu of notice. His testimony was that because the MMD Minister, Hon. Dipak Patel and the Permanent Secretary, Ms Mapoma, knew that he once belonged to UNIP and that he held a political post of publicity secretary for Lubwa Ward, from 1988 to 1990, so he urged the court below to infer that they discriminated against him because of his political affiliation. He referred to a number of documents in which he got commendations for his good performance in his job and testified that his early retirement was therefore not bona fide. The Respondent did not represent their case before the court. When the matter came up before the IRC on two occasions their representative, the State Counsel, was not even present but the Respondent had filed the affidavit before the court and even some documents were before the court. The gist of these documents is that the early retirement given to the Appellant was bona fide because he had a very bad record of indiscipline and disobedience. The IRC decided that there was proof before the court against the Appellant of the grounds stated. The court also decided that the Permanent Secretary in conformity with General Orders was fully justified to recommend the Appellant’s retirement from the Public Service of the Appellant. The court therefore held that the Appellant’s early retirement was lawful. It held that the Appellant failed to adduce evidence to connect any discriminatory act by the Respondents to the Appellant. It also held that the Appellant failed to adduce evidence on any discrimination against him on tribal basis or even any social status. According to the court, even on the alleged slurs of Lozis by the Permanent Secretary and Mr Katongo, there were insufficient details to connect them to the Appellant. On political discrimination, the court found the incidents the Appellant referred to establish this ground were well before the Honourable Minister and Ms Mapoma took office. On the Appellant’s claim that his retirement was done in breach of General Orders, the court held that this was not so. J4 Before us, Mr Kongwa, learned counsel for the Appellant, argued firstly that the court below erred in relying on documents in the Respondent’s bundle pages 92 to 130, which were not produced in court in order to allow his client to respond to the allegations in the documents. He argued that this was contrary to the well established principle of not taking the other side by surprise or to give undue advantage to the other side. He was ambushed. His other argument is the conclusion by the court that his client had failed to adduce evidence to establish discrimination on tribal, social status and political flew in the teeth of the evidence on record. He referred to pages 50 line 8, 51 and 52, paragraphs 138,140, 141 and 142 submitting that those pages contained unchallenged evidence to establish discrimination. He cited an English case of R V Mscclesfied to support his argument. The Attorney General was not represented at the hearing of the appeal but had filed in response to Heads of Arguments in which they argued that on Ground (I) that since the core function of the IRC is to do substantial justice pursuant to section 85 (5) of the Industrial and Labour Relations Act, the IRC is not bound by the rules of evidence observed in civil or criminal proceedings. The IRC is not a court of record like the High Court. They argued that the Appellant was lawfully and legally retired in public interest. We generally accept that the fundamental principle in our justice system is the due observance of the principle of “Equality of Arms”, that is that the parties to a dispute before a court must be treated equally, no party to a dispute before a court must be given due advantage over the other party; and documents to be used in analyzing evidence must not be only filed in court but served on other people. But accept on the other hand the Attorney General’s argument that the IRC was established to do substantial justice and as such this court is not bound by the rules of evidence as practiced in the High Court. It is not a court of record. Therefore, there was no mistake on the part of the court in relying on documents from pages 92 to 130. J5 Even if for argument sake we accepted the argument by Mr Kongwa, which we do not, the questions we have posed to ourselves are on the nature of documents referred to and what was the weight the court attached to the evidence contained in those documents? In response to the first question, we realized that the documents in question established the conduct of the Appellant before the new Government came into existence. According to the learned Authors of Halsbury’s Law of England, at law in cases of dismissal, sorrounding circumstances antedating even those complained have to be taken into account. We also have noted that the documents in question were stamped as filed in the IRC court on the IO111 of October 1995. This was three years or so before the commencement of hearing. These documents were part of the record before IRC. The arguments by the Appellant that they were not served on him are not acceptable as he was represented and his counsel should have been diligent enough to know the documents before the court. We, therefore, find that argument has no merit. The second ground of appeal is that the court erred in law and fact in relying on documents, which antedated the disciplinary action complained of. According to the learned Authors of the Halsbury’s Laws of England, 4th Edition paragraph 1628, at law in cases of dismissal surrounding circumstances antedated to those complained of have to be taken into account. The court found that in fact there was no evidence on record to show that the Appellant required details of each allegation because there was a letter from Mr Kaira, PS, stating in details the allegations of disobedience and indiscipline against the Appellant. We once again find no merit in this ground. The third ground of appeal is that if this court accepts that the relying on disciplinary letters covering the period, from 1971 to 1994, was necessary to do substantial justice, it was a miscarriage of justice for the court to neglect to give an opportunity to the Appellant to specifically respond to the disciplinary letters in the Respondent’s bundle of arguments. We hold the view that the documents, which gave rise to this argument, were in the court’s record and the Appellant was represented by a lawyer who ought to have adequately represented the Appellant’s interests. J6 He cannot now come to court complaining about not being able to respond to the documents, which were on record. He ought to have been advised to respond to these documents in the case on the court record. Ground four will be dealt together with ground five. According to these two grounds of the appeal, the court below erred in law in not holding that the Appellant’s retirement in the public interest did not follow the procedures described in regulation 43(1) of the Public Service Commission Regulations and that the court below erred in holding that disciplinary charges had sufficient particulars. Looking at the regulations, it is our view; that the court did not err in law. The underling message of this regulation is that fairness has to be accorded to the retiring officer. In our view this point was observed looking at the circumstances of the case. Unfairness to the officer in question could only have been inferred if the officer in question was not asked to exculpate himself. Dealing with the argument of insufficient details, we hold the view that this argument has no merit. As already indicated in our judgment, there was a letter from the former Permanent Secretary, Mr Kaira, which contained sufficient details, and the Appellant never complained about this. It was argued by the Appellant that according to Regulation 43 (I) of the Public Service Commission Regulations as amended by the Public Service Regulations Statutory Instrument 91 of 1997 that an officer could only be retired on public interest on the following grounds:- 1) 2) 3) failure to perform his duty; incompetent performance of this duties; and any other disciplinary offence. We have looked at the record in question. We hold that even that has no substance as there was evidence of failure to perform the duties by the Appellant and the letter warning the Appellant that any more of such conduct by him would result in disciplinary measure. We therefore find no merit. On the whole, we hold that there is no merit in the appeal. We dismiss the appeal with costs. J7 D M Lewanika ACTING DEPUTY JUSTICE M S Chaila SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE