Maurice Mateyo v The Attorney General (Appeal 156 of 2022) [2024] ZMCA 295 (18 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA Appeal 156 of 2022 HOLDEN AT NDOLA {Civil Jurisdiction) BETWEEN : MAURICE MATEYO AND UCOF Z \.iRT GF AP;- r - - - -· .. 1 8 NOV 2024 REGISTHY 1 ><soo67 . APPELLANT THE ATTORNEY GENERAL RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 11th & 18th November 2024 For the Appellant: In Person For the Respondent: Mrs. B. M . Kamuwanga with Mrs. N. N. Mbao Senior State Advocates Messrs Attorney General's Chambers JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Cases referred to: 1. Amchile Import & Export Limited and Others v Ian Chimanga (T/A Tawan, Business Ventures)·and Another-SCZ Appeal No. 43A/2011 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC) 3. Zambia National Provident Fund v Y. N. Chirwa (1986) ZR 70 4. National Breweries Limited v Philip Mwenya - SCZ Judgment No. 28 of 201 (unreported) 5. Khalid Mohammed v The Attorney General (1982) Z. R. 49 (S. C.) Rules & Legislation referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Zambia Police Act, Chapter 107, Volume 8 of the Laws of Zambia 3. The Zambia Police Standing Orders, 2009 Edition 1.0 INTRODUCTION 1.1 This appeal challenges the Judgment of Lady Justice P. K. Yangailo delive on 24th March 2022, in an action filed by the Appellant on 24th June 20 alleging wrongful and unfair dismissal from the Zambia Police Service. J2 2.0 BACKGROUND 2.1 The Plaintiff (now Appellant) commenced these proceedings against 1 Defendant (now Respondent), by way of Amended Writ of Summons c Statement of Claim filed on 24th June 2020 claiming the following reliefs: i. The Plaintiff be placed back on the pay roll; ii. Salary arrears in the sum of K67, 140.00 being salary owed to the Plaintiff for 16 months without pay from January, 2019 to date; 111. Transport from Lusaka to North Western Province Solwezi in the sum c K3,500.00 being money that the Plaintiff used upon being transferred Mwinilunga; iv. Imprest at the rate of K850.00 for 5 days in the sum of K4, 500.00 bein money due to the Plaintiff from the Defendant upon being transferred Mwinilunga; v. Accommodation in the sum of K15, 600.00 being money the Plaintiff spent on rent upon being transferred to Solwezi; v1. Declaration that .the Dismissal dated 19th May, 2020 was Wrongfully c Unfairly done by the Respondent; vii. Damages for Wrongful and Unfair Dismissal; viii. An Order that the Plaintiff is reinstated ix. Interest at the current bank lending rate on all monies found due; x. Costs; xi. Any other reliefs the Court may deem fit. J3 2.2 The facts not in dispute are that the Appellant was an employee of · Government of the Republic of Zambia under the Zambia Police Service. 2nd December 2016, he was transferred to Mwinilunga, North West1 Province . 2.3 The Appellant raised concerns regarding his transfer which led him to laur the aforementioned action against the Respondent. After having served 1 Respondent with Court process, the Plaintiff' s employment was termina· on 12t h June 2020. Thereafter, he sought leave to amend his originat process dated 11th May 2020, which application was granted and filed amended process on 24th June 2020. The Plaintiff alleged that the basis his claim was that the Defendant did not follow the laid down procedure v.. regard to his dismissal and that he is owed all his dues. 2.4 The Respondent filed his defence on 28th September 2020 in which he sta· that the Appellant reported to his new duty station on 6t h February 2019, was absent from duty for a period of 526 days, without leave or reasona cau se and that he was not entitled to the reliefs cla imed. 2.5 On 16th October 2020, the Appellant submitted his reply refuting · Respondent's defence and insisted that he wa s denied an opportunity to heard and that procedural requirements w ere not observed. J4 3.0 DECISION OF THE LOWER COURT 3.1 For clarity, the Parties shall be referred to as they appear in this Court. 3.2 The learned Judge duly considered the pleadings and evidence adduc before her. The lower Court also considered the submissions by Counsel the Appellant and authorities cited therein. 3.3 It is worth noting that the lower Court proceeded with trial in the absencE the Respondent as no reason was advanced for the absence at trial. 1 decision was made pursuant to Order 35 Rule 3 of the High Court Rules 1 3.4 Having analyzed the evidence on record, the learned Judge found that · legal issues for determination were as follows: i. Whether the Appellant has proved that the Inspector General of Po, did not follow the laid down procedure when he requested for Appellant's salary to be blocked; ii. Whether the Appellant has proved that he is entitled to damages wrongful and unfair dismissal; iii. Whether the Appellant is entitled to an order of reinstatement; and iv. Whether the Appellant has proved that he is entitled to salary arrear the sum of K67, 140.00; refund of transport from Lusaka to Ne Western province in the sum of K3, 500.00; imprest in the sum K4,250.00; and accommodation in the sum of K15, 600.00. 3.5 The learned Judge addressed each issue in turn. With regard to the first iss the learned Judge referred to Section 38 (1) and (2) of the Zambia Police J JS which provides as follows regarding the disciplinary powers of the lnspec General of Police: "(1} When any police (1) When any police officer below the rank Assistant Superintendent is accused of any offence against any /av., against this Act, the Inspector-General may interdict that officer fr, the exercise of the powers, functions and duties vested in him a. police officer pending the result of the proceedings taken against tJ officer. (2) A police officer who has been interdicted shall be allowed to rece such allowance, equal to not less than one-half of the officer's pay, the Inspector-General shall think fit. " 3.6 The learned Judge took the view that from the foregoing provisions, it v clear that once a police officer has been accused of an offence against 1 Zambian Police Act or any law, the Inspector General of Police may interc the police officer pending the determination of the proceedings against h The learned Judge further noted that the foregoing provisions empower 1 Inspector General of Police to determine the allowance that the police offi was to receive during the period of interdiction which amount should not less than one half of the Police Officer' s pay. 3. 7 The learned Judge further noted Section 30 (1) (e) of the Zambia Police A which provides as follows regarding the offence of absenteeism : "A police officer below the rank of Assistant Superintendent comn an offence against discipline if he is guilty of J6 (e) absence without leave or being late for duti that is to say, (i) if he without reasonable cause or excuse is absent without leave fr or is late for parade, court, or any other duty ... " 3.8 From the facts on record, the learned Judge was of the considered view t the Appellant' s salary was blocked at the request of the Inspector GenE on the basis that the Appellant had been absent from duty for a period 526 days. The learned Judge found that no evidence had been led by 1 parties to demonstrate that the Appellant had been interdicted in wh circumstances the Inspector General could exercise his discretion by pay the Appellant an allowance of not less than half of the Appellant' s pay. 3.9 The learned Judge accordingly found that the Appellant has proved 0 1 balance of probability that the Inspector General of Police acted with1 lawful authority when he completely blocked the Appellant's salary follow the allegations of absenteeism against him . 3.10 With regard to the second issue, the learned Judge found that the Appell, wrote a letter of appeal against his transfer dated 2nd January 20 addressed to the Inspector General of Police (Staff) at Lusaka Headquart on the basis that Kabwe was nearer to the University Teaching Hosp where he was required to attend regular medical check-ups due to physical ailment. She noted that the Appellant wrote another letter dated October 2018, addressed to the Director Criminal Investigation Departm 1 at Police Headquarters in Lusaka . She noted that in both letters, · Appellant did not raise the issue of transport and imprest to be paid to hi J7 3.11 After further analysis of the documentary evidence on record, the learr Judge acknowledged the Appellant' s efforts but noted that he did not rece any favourable response. She noted, however, that other than · Appellant's testimony and the contents of the said exculpation letter, · Appellant had not led any independent evidence from which the lower Co could determine that following the notification of his transfer, he reported to Police Headquarters regularly to request for imprest , transport money to travel to Mwinilunga. 3.12 In the learned Judge's view, the Appellant ought to have called the Ser Officers from Zambia Police Headquarters that had attended to his reque as witnesses at trial or ought to have produced authenticated copies documents that the Appellant had delivered to Zambia Police Headquart requesting for imprest and transport in support of his claim. Having no· the above, the learned Judge was not satisfied that the Appellant had prOI his claim to the required standard. 3.13 She accordingly found that the Appellant was absent from duty without le; or reasonable cause between the 1st December 2016 and 6th February 2( which led to his dismissal from Zambia Police Service. The learned Ju< referred to Section 30 (1) (e) of the Zambia Police Act 2 which provides t absenteeism is an offence against discipline which offence warra dismissal. Her finding was that the Inspector General had justifiable reai to dismiss the Appellant and as such, the Inspector General of Police can be said to have unfairly dismissed the Appellant. Ultimately, the learr J8 Judge found that the Appellant was not entitled to damages for un dismissal. 3.14 The learned Judge turned to consider whether the Appellant was entitlec damages for wrong dismissal and was of the considered view that there \I no evidence on record that had been led to show that the Appellant " charged and that a trial was conducted by a tribunal to address · allegations aga inst the Appellant before the letter of dismissal was served the Appellant. 3.15 The learned Judge took the view that the issue should not be whether th1 wa s procedural impropriety in the manner the Appellant was dismissed whether the Appellant committed a dismissible offence. She fu rther no· that having earlier determined that the Appellant had been absent from d for over two years, he was thereby guilty of the offence of absenteei which is dismissible and took the view that despite the procedural defe1 the Appellant's dismissal was neither unjustified nor unfair. 3 .16 With regard to the third issue, having found that the dismissal was justif the learned Judge found that Appellant was not entitled to an order reinstatement or to be placed back on pay roll and this issue was accordir dismissed . 3.17 The learned Judge turned to the fourth legal issue. She held th e view t the salary arrears due to the Appellant should be calculated from February 2019 when the Appellant reported for duty at Solwezi to 12th Jl 2020, when the Appellant was served with his dismissal letter, in wh J9 period it was undisputed that the Appellant had worked. Having conside1 the evidence on record, the learned Judge found that it was in fact 1 Appellant that owed the Zambia Police Service the value of 8 month's sal being the difference between 24 months and 16 months. She found that 1 Respondent does not owe the Appellant any salary arrears and dismissed 1 claim. 3.18 The learned Judge found that the Appellant had not led sufficient evider from which the Court could determine with any certainty the amount spent i n travel to and accommodation in Solwezi. She therefore dismis! the claims for a refund in the sum of K3,500 and KlS,600 being in respec1 transport and accommodation respectively. 3.19 Finally, the learned Judge found that the Appellant did not lead evidencE show that the sum of K4, 250.00 being imprest, was not paid to him by · Inspector General. The learned Judge also found that the Appellant did demonstrate to the Court how the sum being claimed was calculated fr which the Court could determine with a fair amount of certainty that it\ the sum of money owed to the Appellant, and dismissed the Appella1 claim. 3.20 The net result was that the Appellant's entire action was dismissed. JlO 4.0 THE APPEAL 4.1 Aggrieved with the Judgment of the lower Court, the Appellant filed a Not of Appeal and Memorandum of Appeal on 22nd April 2022, advancing th1 (3) grounds of appeal: i. The Court below erred in law and in fact when it held that · Inspector General of Police had a justifiable reason to dismiss Plaintiff when in fact all the Plaintiff's witnesses presented evide, to the contrary and that the Inspector General of Police's action v not in line with t~e standing orders of Zambia Police. ii. The Court below erred in law and in fact when it held that the Plain could have called independent witnesses in this case senior po, officers at Police headquarters not considering that the said offic were the ones frustrating the plaintiff each time he asked for response on his appeal against the transfer. iii. The Court below erred in law and in fact when it held that the Plain did not raise the issues of transport and imprest in the letters da 2nd January, 2017 and 5th October, 2018 addressed to the lnspec General of Police and the Director Criminal Investigation Departm respectively as the subject of the said letters was Appeal. 5.0 THE APPELLANT'S HEADS OF ARGUMENT IN SUPPORT 5.1 We have duly considered and appreciated the Appellant's Heads Argument filed on 22nd July 2022. Jll 5.2 The Appellant contends that the lower Court erred in concluding that 1 Inspector General of Police had a valid justification for dismissing Appellant's claim, despite the fact that all witnesses presented by Appellant provided evidence to the contrary, and that the lnspec General's actions were inconsistent with the Standing Orders of the Zam Police 3 • 5.3 His main argument is that the Standing Order was not followed, as Clause {a) and {b) 3 requires the offender to be suspended first. The Appell; argues that the dismissal was done outright, which goes against 1 aforementioned rules. 5.4 Additionally, the Appellant argues that, upon his dismissal, he was den the right to appeal, citing Section 31(10) of the Zambia Police Act 2 , as he v not given the opportunity to be heard. Despite submitting an appeal let to the Respondent (found on pages 120-124), the Appellant contends t this failure violated the mandatory provisions of the Act. 5.5 The Appellant further argues that he did not commit the offence for wh he was dismissed, as there was no evidence on record showing that he v formally charged. 5.6 Regarding the second ground, the Appellant argues that the lower Co erred in its decision, stating that he could have called independ, witnesses. The Appellant contends that the three officers involved were · same ones obstructing his efforts to get a response on his appeal against · transfer. J12 5.7 His argument hinges on the fact that he had testified but his testimony w1 unchallenged because the Respondent was absent at trial. His assertior that his testimony was not tested under cross examination and this being · case, the lower Court did not attach due weight to his testimony. 5.8 The Appellant argues that this Court ought to interfere with the exercise discretion which the Appellant suggests was founded on erroneous facts, wrong principles, as the lower Court did not attach any weight to testimony. 5.9 Moving to the third ground, it is the Appellant's contention that the Im Court erred when it held that the Appellant did not raise issues of transp and imprest in the letter dated 2nd January 2017 and 5th October 20 addressed to the Inspector General of Police and Director of Crimi Investigations Department as the subject of the letters was the appeal. 5.10 The argument presented is that the letters found on pages 87 and 89 of Record were not written with the intent of obtaining imprest funds, instead to secure a transfer due to a medical condition and that the cont of the letters was centered around the Appellant's ailment. 6.0 THE RESPONDENT'S HEADS OF ARGUMENT 6.1 The Respondent did not file heads of argument, and attempted to advan reasons as noted in paragraph 7 below. J13 7.0 THE HEARING 7.1 At the hearing of the appeal, the Appellant urged the Court to find favor the appeal for grounds canvassed in the heads of argument. 7.2 Counsel Kamuwanga placed on record the fact that the Respondent had 1 been served with the Record of Appeal and Heads of Argument, in suppo of her position as to why there were no heads of argument in opposition and sought leave to file its opposing arguments. 7.3 The Appellant confirmed having effected service though he did not have copy of the letter of service with him. 7.4 We have had occasion to consider the Record and the corresponding 'Yelle File under CAZ No. 08/139/2022. We have noted that the Appellant filed Affidavit of Service on 25th August 2022 in which he exhibited a letter service dated 3rd August 2022 enclosing his Record of Appeal and Head~ Argument. This letter was acknowledged, and date-stamped the same d though it appears not to have been signed by anyone. 7.5 We have also noted that on 26th September 2022, Counsel from the Attorr General's Chambers appears to have conducted a search on the said yell file with the following obse rvations: "Record of Appeal yet to be scanned, need to contact Appellant's Advoca for a copy of the same." J14 7.6 Even if we were inclined to entertain the plausible lack of service by Appellant, the result of the search referred to above clearly puts that ou· the realm of possibility. For this reason, we proceeded to hear the app based on the documents before the Court. 8.0 DECISION OF THIS COURT 8.1 We have carefully considered the grounds of appeal reproduced paragraph 4 above, the impugned Judgment and the arguments of Parties . 8.2 In considering grounds one, two, and three, we find that all three interconnected, forming a single central issue: i. Whether the lower Court's decision to dismiss the Appellant's en action was on firm ground. More specifically, whether this is a pro case within which this Court should interfere with the lower Cou exercise of discretion in arriving at its decision. 8.3 There are a plethora of authorities by the Supreme Court on when appellate court will interfere with a trial court's findings of fact. In the c of Amchile Import & Export Limited and Others v Ian Chimanga (T , Tawana Business Ventures) and Another 1, Malila JS, as he then v,, restated the Supreme Court's position as follows: "To succeed, a party urging an appellate court to reverse finding: fact by a trial court, must demonstrate that the trial court mi findings which were perverse or in the absence of relevant evidence J15 upon a misrepresentation of facts, or that on a proper view of i evidence before the court, no trial court properly directing its mina it could make those findings 11 • 8.4 The noted case of Wilson Masauso Zulu v Avondale Housing Proj Limited 2 refers. In that decision, the Supreme Court guided as follows: "Before this court can reverse findings of fact made by a trial judge, we wo have to be satisfied that the findings in question were either perverse or me in the absence of any relevant evidence or upon a misapprehension of facts or that they were findings which, on a proper view of the evidence, trial court acting correctly could reasonably make. " 8.5 Upon close scrutiny of the Judgment of the lower Court and a review of · record, including the letters addressed to various officers at Lusaka Pol Service Headquarters and the Director Criminal Investigations Divis concerning the Appellant's appeal against his transfer, we instantly obser as did the lower Court, that these letters bear no " received" or " d stamp" . This is evident from pages 87 and 89 of the record. This om issio significant, as it equally fails to persuade this Court that the Appellar letters were indeed delivered and received by the intended offices. 8.6 Furthermore, the letter displayed on page 90 of the record, from Mr. Sifulwa, the Divisional Criminal Investigations Officer, indicates that th was no communication from the Appellant providing an explanation for absence for a period of over 2 years and 2 months . J16 8.7 We have carefully reviewed the Appellant's exculpation letter and 1 reasons provided for his delayed reporting to his new duty station. It is cli that the core of his appeal against the transfer, rested on his medi condition stemming from an incident in 2005. While we acknowledge ti we have also considered the medical records on pages 84 and 85 of 1 record. Notably, although the report dated 4th October 2018 indicated ti the Appellant would require regular review, we question why the Appell; did not communicate this to the Office of the Divisional Crimi Investigations Officer before 26th January 2019 when he reported . 7 Appellant's unwillingness to disclose this suggests resistance to assuming new duties promptly following his transfer. 8.8 We have had occasion to review the Zambia Police Act and refer to Sect 26 (3) 2 which states as follows: "Proof that a police officer has been absent from duty without lee for a period of twenty-eight days or more shall be prim a facie evide1 of an intention on the part of that police officer not to return to Force." 8.9 Section 30 (1) of the Act 2 stipulates as follows: A police officer below the rank of Assistant Superintendent commits offence against discipline if he is guilty of (e) absence without leave or being late for duty, that is to say, if he (i) without reasonable cause or excuse is absent without leave from c late for parade, court, or any other duty; J17 8.10 Section 30 (2) 2 states as follows: 11(2} An offence against discipline under this section may be inquired tried and determined and the offender shall be liable to suJ punishment, according to the degree and nature of the offence, accordance with the provisions of this Act;" 8.11 We have equally noted section 37 of the Act 2 which states as follows: "No pay shall accrue to any police officer below the rank of Assisti Superintendent in respect of any period during which he is absent fr duty without leave, or is undergoing any sentence of imprisonment Provided that (i) (ii) in any case, the Inspector-Genera/ or any ot. police officer not below the rank of Assistant Commissioner may in discretion authorise the payment of such allowances, equal to , more than one-half of the officer's pay, as he may think fit;" 8.12 Lastly in this regard, we note the Zambia Police Instructions at page 13E the record, lines 10 to 15 which read as follows: "In all cases of disgraceful conduct which brings the image of the Po or Government in disrepute, the Inspector General of Police si through a Board of Inquiry or at his own discretion recommend for dismissal of any officer after suspending such officers from duty appropriate." 8.13 We therefore agree with the learned Judge of the lower court at page 4t the record where she stated as follows at paragraph 6.45: J18 "Based on the foregoing, it is clear that the Respondent in this ca did not follow the prescribed disciplinary procedure before it dismis: the Appellant. However, a number of cases have provided guidance the effect of procedural impropriety on a claim for wrongful dismi5 when an employee has committed an offence whose appropri punishment is dismissal. In the case of Zambia National Provident Fund v Y. N. Chirwa 3 , th, cited above the Supreme Court stated as follows:- " ... where it is not disputed that an employee has committed an offe1 for which the appropriate punishment is dismissal, no injustice ari for failure to comply with the laid down procedure in the contract... 8.14 In view of the above, we are alive to the cited cases on record such National Breweries Limited v Philip Mwenya 4 where it held that: "Where an employee has committed an offence for which he can dismissed, no injustice arises for failure to comply with the proced stipulated in the contract and such an employee has no claim on t ground for wrongful dismissal or a declaration that the dismissal nullity. " 8.15 The Appellant's argument that he did not commit the offence for which was dismissed, is clearly misconceived in the circumstances of the case hand . In light of the evidence on record or lack thereof, we hold the v that the Appellant has failed to provide sufficient evidence w~ demonstrates to this Court that he acted in a diligent professional manr J19 We are guided by the case of Wilson Masauso Zulu v Avondale Hous Project Limited 2 , in which the Apex Court emphasized, that he who assE must prove. In these circumstances, we find that the Appellant has failec provide any justifiable reason for his prolonged absence. Absenteeism fr duty for over two years is, in our view, excessive and inexcusal Additionally, we are not persuaded by the Appellant's failure to sumrr specific witnesses to testify and support his position at trial. 8.16 We have considered the Appellant' s arguments and are of the firm view t the evidence on record regarding the Appellant's absence persuades u~ believe that the Appellant was simply dissatisfied with his transfer < sought various means to delay reporting under the circumstances. 8.17 We have also noted the Appellant's argument that his testimony was on o and unchallenged by cross-examination since the Respondent was no1 trial. We are prompted to recall the case of Khalid Mohammed v Attorney General5 in which the Supreme Court observed that: "An unqualified proposition that a plaintiff should succ1 automatically whenever a defence has failed is unacceptable to mt plaintiff must prove his case and if he fails to do so, the mere failun the opponents defence does little to entitle him to judgme, (emphasis ours). 8.18 In our considered view, we disagree with the Appellant's contention t insufficient weight was given to his testimony. Upon a thorough revie\11 the record, it is evident from pages 12 to 20, that the learned Judge c J20 considered and addressed the issues raised by the Appellant. This is simpl case of an appeal lodged by a dissatisfied litigant in the hope of a favora outcome. 8.19 In view of the above, we find it difficult to depart from the findings of · lower Court. Consequently, we are of the view that this is not an appropri case within which to reverse the findings of the lower Court and accordin dismiss the appeal. 9.0 CONCLUSION 9 .1 The net effect is that all grounds of appeal lack merit and the appeal sta 1 dismissed . We make no order of costs. J M. J. SIAVWAPA JUDGE PRESIDENT F. M CHISHIMBA COURT OF APPEAL JUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGI J21