Godfrey Lebi Mwamba v Post and Telecommunication Corporation Ltd (SCZ Appeal 64 of 1996) [2000] ZMSC 115 (2 July 2000)

1 THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 64/96 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: GODFREY LEBIMWAMBA APPELLANT and POSTS AND TELECOMMUNICATION CORPORATION LIMITED RESPONDENTS CORAM: Chirwa, Muzyamba and Lewanika JJS On 2nd December 1999 and July 2000 For the Appellant: Mr. E. B. Mwansa, EBM Chambers For the Respondent: Mrs. Nhekairo, Legal Counsel, PTC. JUDGMENT Chirwa, J. S. delivered judgment of the Court: - This is an appeal against the decision of the High Court dismissing the appellant’s claim for thirty-eight thousand, nine hundred and thirteen pounds (38,913 pounds) or kwacha equivalent been sum the appellant claimed to have spent in the United Kingdom at a University after his scholarship was allegedly cancelled by the respondent. The claim by the appellant is that in 1989 the respondent organised three scholarships from the British Council. Tickets were provided by the British Council. The respondents were to provide 75% of the scholarship. The appellant left for the United Kingdom and whilst there the scholarship was cancelled and he was forced to source his own money to pay for the fees and up keep. Also whilst in the United Kingdom he was dismissed from service by the respondent. On his successful completion of his studies he returned to Zambia and was re­ employed by the respondent. On the other hand, evidence on behalf of the respondent was to the effect that the scholarship was obtained wrongfully without their knowledge through the misconduct of one Muyunda who was one of three recipients of the scholarships and who was also dismissed from employment after the discovery of how the scholarships were obtained. The evidence for the respondent further shows that the appellant left Zambia without knowledge and authority of the respondent. The learned trial judge found as a fact that the respondent was not involved in the procurement of the scholarship for the appellant and that the appellant was aware of the cancellation of the scholarship before he left hence his appeal to ZIMCO Limited. The Court further found that the appellant was dismissed from employment as a result of absconding from work when he left for the United Kingdom without the authority of the respondent and that the respondent could not be responsible for his stay in the United Kingdom after his dismissal as the employer/employee relationship ceased and dismissed the appellant’s claim. It is against this dismissal of the claim that the appellant has appealed. According to the memorandum of appeal there were three grounds of appeal. The first is that the learned trial judge misdirected himself in law and fact by finding that the trip to and the pursuit of studies at Anglia Polytechnic University was not approved or authorised by the authorities. The second ground of appeal is that the learned trial judge misdirected himself in law and fact for dismissing the appellants’ claim after labouring on an issue of dismissal from employment which was not an issue before him. The third ground is that the learned trial judge misdirected himself in law and fact to have not delivered the judgment in favour of the appellant when there was enough evidence to that effect. We should point out here that at the hearing of the appeal, Mr. Mwansa, Counsel for the appellant, applied to us to adduce further evidence under Section 25 of the Supreme Court Act. This was duly granted and Mr. Mwansa called one witness, namely Edward Katilungu Katongo, Director of Human Resources at Cabinet Office. This witness was called to produce a letter purportedly from his office conveying or confirming the award of scholarship to the appellant and two other employees of the respondent. However, this witness refused to produce the copy of the letter given to him by Mr. Mwansa on the grounds that there was no copy of the letter on the files kept in his office. The letter was, therefore, not produced as evidence before us. In arguing the appeal, Mr. Mwansa relied on his written heads of arguments. Mrs. Nhekairo also relied on her written heads. In his written heads of arguments Mr. Mwansa expanded his grounds of appeal and in the first ground of appeal he submitted that the award of scholarships was on the basis of passing the interview and there cannot be substitutes after interview with someone who had not attended the interview and that any internal management irregularities cannot affect innocent third parties from enjoying what they have duly qualified to enjoy. The respondent should have refunded the appellant and then deal with the erring officers. In answer to the first ground of appeal, Mrs. Nhekairo submitted in her written heads that the learned trial judge did not misdirect himself in law and fact by finding that the trip and the pursuit of studies in the United Kingdom was not approved or authorised as there was ample evidence on record to support this view. We have considered this ground of appeal. In considering it we have looked at the conduct of the respondent and the evidence on record. There is evidence that the selection of the appellant was not done by the sponsorship committee of the respondents, as was the practice. Everything was done behind the committee and management. After the appellant had secured the sponsorship the management heard of it and wanted to substitute the appellant and his two friends namely Muyunda and Mtemwa. This evidence is on letters dated 14th and 28th June 1989 at page 131 and 132. Because of this the appellant appealed to ZIMCO Limited. Here again the appellant went behind the back of management. ZIMCO Limited refused to entertain the appeal (see page 133 of the record). This letter from ZIMCO Limited is dated 7th September 1989. The appellant left Zambia on 13th September 1989, this means that he left without authority. With this evidence on record, we find it difficult to fault the learned trial judge’s finding that the sponsorship to study abroad and to travel abroad was not authorised by the respondent and ZIMCO Limited. We would agree with the observation of the learned trial judge that there must have been collusion between the appellant, Mr. Muyunda and Mr. Mtemwa to mislead the British Council that their sponsorship had been sanctioned by the respondent, hence they were issued with tickets to travel to the United Kingdom. This first ground of appeal cannot succeed and it is dismissed. The second ground of appeal which is that the learned trial judge misdirected himself in law and fact for dismissing plaintiffs claim after labouring on the issue of dismissal from employment which was not an issue before him seems to us to be misconceived. The learned trial judge dismissed the appellants case on the ground that he had not been sanctioned to be sponsored to study abroad and to travel abroad so as to make the respondent, as his employer, responsible for his fees and up-keep in the U. K. Whether the dismissal was an issue is irrelevant to the appellants claim. The learned trial judge was merely emphasizing the fact that there was no master/servant relationship. This ground of appeal is also dismissed. The third ground has been covered in our consideration of the first ground. We have agreed with the learned trial judge’s findings that the appellant was not sanctioned to be sponsored and it is only on this ground that the appellant could have succeeded had he proved the sanction. This appeal is therefore dismissed with costs to be agreed, in default to be taxed. D. K. CHIRWA W. M. MUZYAMBA SUPREME COURT JUDGE SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE