Lusaka Water and Sewerage Company Ltd v Mapani and Anor (Appeal 99 of 1996) [1999] ZMSC 60 (15 November 1999)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE AND LUSAKA. (Civil Jurisdiction) SCZ APPEAL NO. 99/1996 LUSAKA WATER AND SEWERAGE CO. LTD APPELLANT AND GLADWELL SIMON CHIBULE MAPANI LUSAKA URBAN DISTRICT COUNCIL RESPONDENT PARTY JOINED. Coram: Sakala, Chirwa and Lewanika JJS 22nd June and 15th November, 1999. For the Appellant: Mr. A. J. Shonga of Shamwana and Company. For the Respondent: Dr. L. Sondashi of Sondashi and Company. For the Party joined: No appearance. JUDGMENT Sakala JS delivered the Judgment of the Court. Case Referred to: 1. Denham Vs Midland Employers Mutual Assurance Ltd [1955] 2 QB 437. This is an appeal against a judgment of the Industrial Relations Court holding that the respondent’s dismissal was null and void and that he be reinstated in his former position. The appeal, which was first set down for hearing for 27th February 1997, has a history of adjournments. On two occasions it had been struck out.. When it was restored it was adjourned for hearing at the Supreme Court Sessions held at Kabwe on 21st April, 1999. In the course of hearing the appeal at Kabwe, when counsel for the appellant was outlining the facts giving rise to the appeal, it was evident that the Lusaka Urban District Council was affected by the judgment of the Industrial Relations Court although not a party at trial and not a party at that hearing in the Supreme Court. Counsel for the appellant conceded that should the outcome of the appeal be in favour of the respondent, the Lusaka Urban District Council, on the facts on record would be adversely affected. : J2 In the interest of justice we granted Counsel for the Appellant an application to make the Lusaka Urban District Council a party to enable them to be heard in this court. The court directed that the record of appeal and the heads of argument be served on the council. The matter was thereafter adjourned to the 22nd of June for hearing at Lusaka. When the matter came up for hearing on that date, Mr. Shonga for the appellant informed the court that he had served the record of appeal on the council as directed by the court at Kabwe. He further informed the court that he had been advised that the counsel who had conduct of the matter was unwell and unable to attend court. The matter was thus adjourned to 22nd July for hearing. On the hearing of the appeal on 22nd July, there was no appearance for the Lusaka Urban District Council despite the appellant having written them about the date. The court was satisfied that the Lusaka Urban District Council had ample notice of the hearing date and directed that the hearing of the appeal should proceed despite the non appearance on behalf of the Lusaka Urban District Council. We took this course because of the long history of this appeal. This is evident from the fact that the notice of appeal was filed in July, 1996. The salient facts of the appeal were common cause. Sometime in June 1993, the respondent was employed by Lusaka Urban District Council as a Clerical officer in the department of Water and Sewerage. In the course of his employment he was seconded by the council to the appellant company. The appellant company subsequently transferred him to the buying section. In 1991 he was upgraded to Assistant Stores Officer and later promoted to the position of a buyer. In the course of his employment with the appellant company as a buyer he wrote reports to the appellant’s Managing Director and to the Anti-Corruption Commission on the activities of senior officers of Management in relation to their companies which had dealings with the appellant company. Following these reports the respondent was interviewed by the appellant’s Managing Director and by the officers from Anti-Corruption Commission. Thereafter the respondent was subjected to several transfers some of which were reversed upon : J3 : his protestations. On 9th October 1992, he received a letter suspending him from work pending investigations into a disciplinary matter in which he was allegedly involved. While on suspension the appellant company wrote a letter dated 17th November, 1992 to the Director of Administration, Lusaka City Council sending the respondent’s personal file for their attention and action. In that letter the appellant’s Director of Manpower Services explained that the respondent had been suspended from work for gross negligence of duty that had resulted in the loss of K5 Million. The Director further explained that the respondent had negligently and deliberately omitted to submit water readings resulting in some consumers not being billed. On 16th October 1993 the respondent was dismissed by the Lusaka City Council. Part of that dismissal letter reads as follows:- “Dear Sir, DISMISSAL FROM COUNCIL SERVICE. Reference is made to the letter addressed to you dated 9th October 1992 in which you were suspended from duties for gross negligence of duty. I regret to inform you that the Council at its meeting held on 28th May 1993 under minute Number C/CONF/28/05/93 resolved that, you be dismissed from employment for contravening Regulation No. 69(g) of the Local Government (Condition of Service 1989)”. It is quite clear to us from the facts not in dispute that the respondent who was on secondment to the appellant was dismissed by the Lusaka Urban District Council. We take note that the respondent was suspended by the appellant for gross negligence of duty. Following upon the suspension he was surrendered to Lusaka Urban District Council who had seconded him to them. The Lusaka Urban District Council initiated disciplinary proceedings against the respondent who denied the charge of gross negligence of duty resulting in the loss of K5Million. These factors militated the joining of the council to these proceedings as a party in the interest of justice. The Industrial Relations Court considered the evidence and the facts not indispute. The Court found that the respondent having been seconded to the appellant, the appellant had the jurisdiction to discipline him for any offence committed while working for them. The court found that there was no justification for the Lusaka City Council to discipline the respondent. The court also found that it was wrong for the council to : J4 : have dismissed the respondent for allegedly contravening regulation 69(g) of the Local Government Conditions of Service of 1989 which relates to theft. The court noted that the respondent had never been accused of theft of property belonging to the council. The court held that Lusaka City Council had no power to discipline or dismiss the complainant for any offence which was not committed in the council. The court declared that the purported dismissal was null and void. It observed that the appellant and the Lusaka City Council did not charge the respondent for any disciplinary offence. They also did not inform him of the outcome of the investigations stated in the suspension letter. The court concluded that the respondent had not been given an opportunity to be heard. On this ground too the dismissal was held null and void being in breach of rules of natural justice. The court accordingly ordered that the respondent be reinstated to his former position of buyer; and that he be paid his arrears of salary and any allowances that he was entitled to from 9th October 1992, the date of his suspension. The appellant appealed to this court against the whole judgment. Four grounds of appeal were filed on behalf of the appellant. Before arguing the appeal on behalf of the appellant Mr. Shonga indicated that, the Council having been joined as a party, the appeal would be argued on one ground only namely that the court erred in law by holding that Lusaka City Council had no power to discipline the respondent whom they had seconded to the appellant. The summary of the submissions on this ground was that the respondent should have sued Lusaka City Council who had seconded the respondent to the appellant and who had the power to discipline him despite offending the appellant. Counsel argued that the contract of employment in relation to a seconded personnel, apart from the actual services of the seconded employee, remained with the original employer. Counsel cited the case of Denham Vs Midlands Employers Mutual Assurance Limited (1) in support of his arguments. He submitted that the respondent’s secondment came to an end when he was handed back to Lusaka City Council, his original employer. Counsel contended that the appellant had therefore nothing to do with what followed thereafter. : J5. He submitted that the respondent was not dismissed by the appellant but by Lusaka City Council who had power to dismiss him. He concluded his submissions by contending that the respondent should have sued the Lusaka City Council. Dr. Sondashi in response to the submissions for the appellant conceded that the respondent’s contract of employment was between him and the Lusaka City Council but that he was permanently seconded to the appellant together with the conditions of service. When pressed to explain why Lusaka City council was not joined at trial counsel conceded that this was an omission. Although we were not availed the conditions under which the respondent was employed by Lusaka City Council and seconded to the appellant company, we are satisfied that the appellant was entitled to surrender the respondent, on disciplinary grounds, to his employers, in this case to Lusaka Urban District Council. Thereafter it was up to Lusaka City Council to take whatever disciplinary action they deemed fit. It was therefore a misdirection on the part of the trial court to find that the council had no power to discipline the respondent. Although the case of Denham cited to us was not on all fours with the facts of the present appeal in that it related to the issues of liability for the negligence of the assured’s servants, the case does make the point that in a case of a seconded servant, his contract of service remains with the seconding employer and that it is only his services that are transferred. In the instant case the contract of service of the respondent remained with the Council. Upon the respondent being surrendered to the Council, the Council was perfectly entitled to discipline the respondent. The Council infact commenced disciplinary proceedings against the respondent. But on the facts of this case before us, the court was on firm ground when it held that the Council was wrong to dismiss the respondent for allegedly contravening Regulation 69(g) of the Local Government Conditions of Service of 1989 which relates to theft. The respondent was never charged with theft. We are however J6: satisfied that the respondent sued a wrong party. The appeal against the appellant is therefore allowed. Dr. Sondashi conceded that it was an omission that the Council was not joined as a party. We ordered joining the council at this very late stage in the interest of justice. The appeal by the appellant having been allowed the order of reinstatement and the consequential orders also fall away. Indeed at this juncture it would not be in the interest of justice to order reinstatement of the respondent with the council. But we are satisfied that the dismissal was wrongful entitling the respondent to some compensation above notice damages usually warded in wrongful dismissal cases. Bearing in mind that his surrender to the council was for disciplinary reasons we consider compensation of twelve months salary as adequate compensation on the facts of this case. For avoidance of any doubt, the appeal by the appellant is allowed. Judgment is entered in favour of the respondent for wrongful dismissal against the Lusaka Urban District Council. The respondent is awarded twelve months salary as compensation for wrongful dismissal. Each party will bear its own costs. E. L. Sakala, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE D. M. Lewanika, SUPREME COURT JUDGE.