Gabriel Mwami v Zambia China Mulungushi Textitles joint venture Limited (Appeal 27 of 2007) [2007] ZMSC 49 (7 August 2007)

4 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 27/2007 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: GABRIEL MWAMI AND APPELLANT ZAMBIA: CHINA MULUNGUSHI TEXTILES JOINT VENTURE LIMITED (cid:9) RESPONDENT Coram: (cid:9) Sakala, CJ., Chibesakunda and Mushabati, JJS. On 101h April, 2007 and 7th August, 2007. For the Appellant: In Person For the Respondent: J. Sinkende - In house Legal Counsel h d( 1 JUDGMENT This is an appeal against the High Court Judgment dismissing the appellant's claim for a declaratory order that his dismissal from employment by the respondent company on 6th March, 2003 was null and void or, in the alternative, for damages and accrued terminal benefits. The appellant worked for the respondent company since 1982 and at the time of his dismissal he was a Stores Officer. Two disciplinary charges were preferred against the appellant and these were gross misconduct and gross negligence of duty. He was found guilty of J2 gross misconduct whose punishment was summary dismissal. The second charge was dismissed. The appellant was the only witness who gave evidence in support of his case. In his testimony, the appellant stated that he worked for the respondent company as Assistant Manager, Marketing before he was demoted to Stores Officer. He challenged his demotion through the courts of law and he was later re-instated after the Supreme Court ruled in his favour. He was, however, later dismissed from employment on the basis of the evidence he had adduced in court against the respondent when he was demoted. The evidence he had given at the time he challenged his demotion was to the effect that he revealed some anomalies relating to pricing of items which were exported to Malawi during his business tour to that country. He had accompanied Mr. Sung the Commercial Manager. The other members of the entourage were a Mr. Juwembi and Mr. Lee. According to him, the anomalies that he had detected amounted to thefts of company property. He was later given a (cid:9) charge of gross misconduct (alleging that he was in possession of company information without the authority of management and that the said information was passed on to persons outside the company. This was as per complaint form dated 4th February, 2003 at page 117 of the record). The appellant further stated that both the charge and punishment against him were wrong because they were framed under Section 26 instead of Section 29. The alleged wrong doing that he did was to pick a document called a GRN whilst he was on suspension. The document was given to him during his suspension, by a Mr. Robbie Mulopwe. The said document contained Chinese workers' importers allegedly involved in some illegal activities. The respondent called three witnesses namely: D. W.1, Friday Philip Ngulube, Deputy Manager, Human Resources, D. W. 2, Simon Sichone, former Chief Security Officer and D. W.3, Alberto Mateyo Chifita, Deputy General Manager. D. W.1 testified that the appellant was, at the time of his dismissal, a stores officer in the respondent company. His immediate supervisor was the late Mr. Kenny Kande, who died after the offence, alleged against the appellant, was already committed. Robbie Mulopwe was appellant's subordinate. The appellant was put on suspension after he was charged with gross misconduct and gross negligence of duty. Whilst on suspension, he ceased to perform his official duties. He was not allowed to remove or take anything from the company premises without permission from a more senior person to him. The charge of gross misconduct having been proved against the appellant, he was recommended for dismissal. D. W.2 received a report that the appellant, whilst on suspension, went to the stores and collected a GRN Book, a company J4 document without authority. He carried out investigations and he eventually retrieved the said book from the appellant who said he wanted to have it photocopied. D. W.3 's evidence was to the effect that the appellant had reported to him of a planned conspiracy by some people to steal from the respondent company. The appellant did not, however, reveal the names of the people allegedly involved in the conspiracy. After investigations, the plot was traced to the Cashier's office. The appellant was later put on disciplinary charges for which he appeared before a disciplinary tribunal. Subsequently he was dismissed. At the conclusion of the trial the lower court dismissed all the appellant's claims hence this appeal before us. The appellant filed, what he called, five grounds of appeal which may be summarised basically into three. These are: 1. That the court below misdirected itself when it failed to hold that the appellant was subjected to a mistrial. 2. That the findings of fact the lower court made were not supported by evidence. 3. That the disciplinary proceedings against him were a mere cover up to get rid of him. In addition to the above he filed in written heads of argument and a brief oral submission. The appellant, in his argument both written and orally, dwelt much on the perceived misdeeds by the Chinese workers, which he revealed to the company management, for which he was demoted. The counsel for the respondent filed in brief written heads of argument which he augmented with oral submissions. He argued that the appellant's dismissal was properly done in accordance with the disciplinary code procedures . (cid:9) of the respondent company. His case was heard by a tribunal as per charges laid against him by the charging officer, who himself could not hear the case. After the hearing, the appellant appealed to another committee but lost his appeal. The respondent company could not therefore be faulted in any way, because its laid down disciplinary procedures were followed. We have considered both the evidence on record and the arguments by both parties. It is clear to us that most of the issues were not in dispute. The appellant admitted taking the GRN Book, the subject of one of the charges • against him, from the company premises. It was retrieved from him by the Chief Security Officer, D. W.2. (cid:9) At the time he took the said book, he was on suspension. His defence was that the said book was given to him by Robbie Mulopwe. On his dismissal, he portrayed a picture that he was victimised because he brought to light some misdeeds by the Chinese employees of the respondent company. J6 We shall deal with the last point that he raised. The appellant himself acknowledged the fact that the question of the alleged dishonest conduct by some of the respondent company's employees was dealt with in another separate case. The case before us emanated from his taking the GRN Book from the respondent's premises while he was on suspension. This had nothing to do with his purported revelations of his perceived clandestine activities by some Chinese Workers. In fact, it is not for us to determine the merits or demerits of the charges against him. Our role is to examine whether the appellant was properly charged and given an opportunity to defend himself. The evidence on record shows that the appellant was charged and given an opportunity to exculpate himself. Further, he had an opportunity to appeal against the decision of the disciplinary tribunal but lost the appeal. In his defence, the appellant said the GRN Book was given to him by Robbie Mulopwe. The said Robbie Mulopwe, according to the evidence of D. W.1, was a casual worker and appellant's junior. In fact, it was Robbie Mulopwe who reported the matter to the Chief Security Officer who went to retrieve the book from him. The trial court made a finding of fact that he took the book without authority. We cannot find any reason on which we can fault this finding of fact. The court below found that his summary dismissal was justified. We are satisfied that the appellant was given a fair hearing. We find no mistrial which was occasioned to him. On the contrary, he was afforded all the opportunities available to him to defend himself. We have no doubt that his dismissal had nothing to do with the allegations he made against the Chinese nationals working for the respondent company. We do not find any mistrial in this case because we are satisfied that both the disciplinary procedures and the rules of natural justice were properly applied. We find no grounds for up-setting to lower court's decision. The appellant's appeal lacks merit and it is dismissed. We make no order as to costs. 'ALI; E. L. Sakala CHIEF JUSTICE Q t, / L. P. Chibesakunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE