Mulenga and Anor v Valuation Surveyors Registration Board (SCZ 6 of 2009) [2009] ZMSC 173 (26 February 2009)

JI SCZ No. 6 of 2009 IN THE SUPREME COURT OF ZAMBIA Appeal No. 88a/2006 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN SONNY MULENGA VISMER MULENGA AND 1APPELLANT 2nd APPELLANT THE VALUATION SURVEYORS REGISTRATION BOARD RESPONDENT Coram: Chirwa,Ag, DCJ,Chibesakunda JS & Kabalata, Ag. JS 30th December, 2007 and 26th February, 2009 For the Appellant: Mr. J M C Chimembe of Messrs JMC and Associates. For the Respondents: Mr. Mushemi of Messrs Nahiri Mushemi & Associates. JUDGMENT Chibesakunda, JS, delivered the Judgment of Court. Cases referred to: 1. George Malachi Mabuye v. Council of Legal Education 1985 ZR 10 SC. 2. McCoan V General Medical Council (1964) 3 ALL ER page 143. 3. The Attorney General v Richard Jackson Phiri (1988-1989) ZR 121 4. R V Camborne Justices (1955) 1 QB page 41. 5. Leslie Thomas Hayes v. the Bar Council of Zimbabwe Judgment No. AD83/81 6. Re Weare (1893)2QB 439 J2 Legislation referred to: 7. Order 59/3 RSC, 1999 Edition 8. The Earl of Halsbury Laws of England Vol. 9 page 234 para 502 and Halsbury Laws of England Vol 9 p.9 para 1(a). 9. Valuation Surveyors Rules Cap 207 of the Laws of Zambia. This is an Appeal against a High Court Judgment which was that, the two Appellants, who were practicing as Valuation Surveyors in the name and style of Sonny P Mulenga and Associates International, be struck off the Register of Valuation Surveyors. The brief history of this case is that the two Appellants were practitioners in Sonny P. Mulenga and Associates International. The two Appellants as practitioners in Sonny P. Mulenga and Associates were charged with the offence of professional misconduct pursuant to Rules 1 and 7(b) of the Valuation Surveyors Act, third schedule, Rules of Procedure and Disciplinary Proceedings.(9) The particulars were that, these two Appellants were guilty of professional misconduct by: - (a) Failure at due time or at all to fully account or remit a sum of K67,000,000.00 to their client the Zambia Privatisation Agency or their agents Coppers and Lybrand which money was received and held by the Appellants after or from the sale of ZIMCO Trade Sector properties; and J3 (b) Failing at the due time or at all to fully account the sum of K276,244,758.20 which was recovered by the Appellants from the sale of the Zambia Clay Industries. The Appellants replied to the charges levelled against them as per explanation which is on record. They also filed affidavits verifying the answers regarding the charges, they were facing. A gist of what they said in the affidavit before the High Court is that, they denied the charges levelled against them. Later on, on 2nd February, 2000, the charges were amended to include failure to remit the sum of K50million to Zambia Privatisation Agency (ZPA) paid by Bakeright Confectioners Ltd as the purchase price for stand No. 27/600a former ZNBC Shop in Chawama. They were also charged with failure to remit K3million to the Zambia Privatisation Agency which was the purchase price for the sale of the Zambia National Wholesale and Marketing Cooperation Warehouse in Kabompo. The two filed additional answers to the new complaints relating to the lack of professionalism in dealing with the said Agency and also challenged the jurisdiction of the Respondent Board hearing the matters. The Respondent Board sat to inquire into these charges levelled against the two Appellants. Evidence was taken from both parties. The Appellants were represented by Counsel during the inquiry. J4 At the end of the inquiry or hearing, the Respondent Board was satisfied and found the two Appellants guilty of failure to remit and account for the various sums of money of their clients and that by such conduct the Appellants misconduct themselves. Consequently to that verdict, the Respondent Board ordered that they be struck off the Register of Valuation Surveyors. The two Appellants appealed against this decision by the Respondent Board to the High Court. Before the High Court, the two Appellants raised 7 grounds of appeal. On the first ground, the Appellants argued that they were not engaged as Valuation Surveyors but as Estate Agent whose disciplinary issues could only be determined by the Council of the Zambia Institute of Estate Agents. So they argued that the Respondent Board had no authority to hear and determine this matter. On that ground the High Court Ruled that the Estate Agent Act, which created the Council of Zambia Estate Agents, was passed in 2000 and that the matter before the High Court arose in 1997 long before Act No. 21 of 2000 came into existence. The High Court held that, Act No. 21 of 2000 did not have any retrospective effect and as such could not be applied to issues which arose before it was enacted. The High Court also agreed with the Respondent Board that before enactment of Act No. 21, this complaint fell under the jurisdiction of Zambia Institute of Estates Agents. As the Zambian Institute of Estate Agents J5 was a sub branch of Valuation Surveyors, the lower Court therefore, concluded and held that the Respondent Board had jurisdiction to hear such matter, because this case pre­ dated the enactment of Act No. 21 of 2000. The second and third grounds were that the Appellants were not afforded a fair hearing as the Respondent Board was the prosecutor as well as the Judge in the mater and the Board Chairman, Mr Musonda Kasese was biased against the two Appellants. The Court on these grounds held that the Valuation and Surveyors Registration Board was a self regulatory Board which had its own Rules and regulations, which it had to administer internally. The High Court further held that, the Respondent Board had its own powers vested in it by the statute. Any inquiry or hearing of a disciplinary matter, according to the Court, that in itself did not deprive the Appellants of all their entitlement under the Rules of natural justice. Relying on the ratio in the English case of R v Camborne Justices Ex Parte Pearce (1955)(4), the Court also held that in fact there was no bias established as having been exercised by the Respondent Board nor was there any facts of any real likelihood of bias having been exercised by Mr Kasase as Chairman of the Respondent Board. On the 4th ground, the argument was that the Respondent Board had no jurisdiction to hear this matter because at the J6 time it heard this matter, this same matter was still pending before Court and therefore subjudice. The Court held that what the Respondent Board dealt with, was a disciplinary matter concerning misconduct. But what was before the High Court was another matter in Cause No. 1997/HP144 which related to Dr Chiselebwe Ng'andwe and the Attorney- General and the Small Enterprises Development Board. On the 5th and 6th ground, on the claim by the Appellants that a misconduct occurred at the Appellant Kitwe office, which was not run by a Registered Surveyor and that the 1st Appellant was not in private practice, as he was Hon Minister of Local Government and Housing, and the 2nd Appellant had not yet joined Messrs Sonny Mulenga and Associates International, the Court held that this matter was not raised in the Appellants’ answers and Affidavits verifying the answers. So the Court held that this argument was an after thought. On the claim by the Appellant that the money said not to have been remitted, had been paid back, the Court held that although the Appellants had paid that amount, that did not have any effect of exonerating them as the charges were that they failed to remit the money at that time, or even to account for the whole money. J7 On the last ground, namely that the punishment was too stiff, the Court, relying on the case of the Attorney General vs Richard Jackson Phiri(3), in which it was held that the Court is not mandated to sit as a Court of appeal from the decision of the Board as its mandate was limited to inquiring whether or not the decision of the Board was fair or reasonable. The lower Court held that it could not therefore interfere with the punishment complained of. In sum total the Court dismissed the Appeal. The Appellants therefore have come to this Court to appeal against this decision of the High Court. Before this Court, the two Appellants have raised 5 grounds of appeal. These are:- 1. That the Judge in the Court below erred in law when he held that the Respondent had jurisdiction to hear and determine the matter under the Registered Valuation Surveyors Act CAP 207 of the Laws of Zambia when the Appellants were appointed and engaged as Estate Agents as opposed to Valuation Surveyors. 2. That the Judge in the Court below erred both in law and in fact, when he held that the issue of bias was neither established nor alleged. 3. That the Judge in the Court below erred both in law and in fact when he held that the Respondent was in order to determine the complaint even if the matter was pending J8 before the High court and also that cause number 1997/HP/144 involved the Appellants. 4. That the Judge in the Court below erred both in law in fact when he held that the Appellants argument that the alleged misconduct occurred at the Appellants Kitwe Office and also that the 1st Appellant was not in Private Practice but was a Government Minister at the material time was a mere afterthought. 5. That the Learned Judge in the Court below erred both in law and in fact when he held that the Respondent’s decision was fully and amply supported by the evidence when there was no evidence of such misconduct. The Counsel for the Appellants submitted that he was going to rely on his written heads of arguments with special emphasise on grounds 4 and 5. In his oral arguments, augmenting his written argument on grounds 4 and 5 he posed a question as to whether the Valuation Surveyors Registration Board was justified in holding that the Appellants stole the unremitted funds and therefore were in breach of Rules! of the Valuation Surveyor's Rules under Cap 207. He further elaborated on this question by posing another question which was that, “assuming criminal proceedings were instituted in the theft of money which Zambia Privatisation Agency is claiming from S. P. Mulenga International, who would be charged between the appellants and employees of the 1st Appellant at his Kitwe Office?” He argued that, professional misconduct like a criminal liability attaches to a person who has committed it. J9 According to him, there is a difference between breaching a Rule of conduct like Rules 1 and 7 of the Valuation Surveyors Rules and liability of an employer for his/her employee's actions/omission vicariously. In the case of the former, a breach has to be personal whilst in the latter the employer is vicariously liable for the action/omission of his employee/agent. He explained that in this case before Court, there was evidence by Mr Mulevu at page 99, lines 13 - 14 and at page 100 and there was evidence from Mr Mwandenga, Legal Counsel, Zambia Privatisation Agency at pages 102 - 103, there is also evidence of the 2nd Appellant on pages 106, 112 and evidence of the 1st Appellant at pages 120, 121 and 126, which exonerated the two Appellants. That evidence established that the misconduct happened when the 1st Appellant was Hon Minister of Local Government and Housing and the 2nd Appellant was just an employee S. P. Mulenga International and was not even stationed in Kitwe. Counsel also pointed out that this Court should take into account fresh evidence adduced in the Court, via the consent order which evidence was not before the lower Court, which if it had taken into account, the Court would not have made the decision it made. That evidence brought about a different element which would have brought about a different conclusion. Zambia Privatisation Agency and the 1st Appellant by this consent order agreed that the 1st Appellant pay money that was not remitted by J10 the Kitwe Office of S P Mulenga International to Zambia Privatisation Agency. He argued therefore that, the lower Court was wrong to have endorsed the findings of the Respondent Board because the two Appellants were not personally guilty of the offence. He argued further that the there was no evidence that the money which was not remitted to Zambia Privatisation Agency was personally stolen by the Appellants (see page 102 - 103 of the record). He therefore submitted that, in fact it was common cause that the unremitted money was stolen by the former employees of S. P. Mulenga International in its Kitwe office. Consequently, he argued that, the theft of money by former employees in the 1st Appellant's office cannot be said to be prejudicial to the professional standing of the two Appellants or the reputation of the Board. He citied the case of George Malachi Mabuye v. Council of Legal Education (1), where this Court observed that: “the overriding criterion for fitness to enrol as a Law student is integrity and for a disqualification to be justified, it should be made to appear that the misconduct complained of not only seriously undermines such integrity but also that no amount of repentance and subsequent good conduct could be regarded as having repaired and redeemed the Applicant's integrity." He argued that this misconduct was of the former employees of S P Mulenga International and as such could not have fitted in the definition of misconduct of the two Appellants as defined by this Court in Malachi Mabuye v. Council of Legal Education (1 )quoted supra. It was Counsel's argument by analogy that, Jll the overriding consideration for fitness to practice as a Valuation Surveyor must be integrity and for a disqualification to be justified as misconduct complained of as defined in Malachi Mabuye v Council of Legal Education (1), it must not only be serious but it must also be such that it undermines the integrity and must be such that no amount of repentance and subsequent good conduct can be regarded as having repaired and redeemed the Appellants' integrity. He referred to the fact that the 1st Appellant, besides being not personally involved as he was in active politics at the material time, nonetheless, accepted the responsibility to repay Zambia Privatisation Agency (ZPA) (as a partner), the money which the former employees of S P Mulenga International stole. He accepted that as a Partner in the firm, even though he was not personally involved in the theft of money in question, he was liable to account to Zambia Privatisation Agency. It is common ground that the 1st Appellant paid Zambia Privatisation Agency the money the money stolen at their Kitwe office. Therefore Counsel urged this Court to take into account the fact that the 1st Appellant took his responsibility as a partner very seriously and as such, the conduct by the 1st Appellant by any stretch of imagination cannot be said to undermine his integrity. He urged this Court to hold that, his own subsequent conduct repaired and redeemed his integrity. He therefore urged this Court to uphold this appeal. J12 Overarching with this argument, Counsel for the Appellant further argued that since as a result of the consent order which we have referred to between Zambia Privatisation Agency and the 1st Appellant, the 1st Appellant has paid the money stolen by former employees of S P Mulenga International. So the striking off of the two Appellants from the Register was harsh and disproportionate. The order was unjustified as it was common ground that the two Appellants were being punished for the misdeed of the former employees. In response, Counsel for the Respondent argued on grounds 4 and 5 that the Learned trial Judge in the Court below did not err in law and infact when he held that the Appellants’ argument that the alleged misconduct occurred at S P Mulenga International at their Kitwe Office when the 1st Appellant was not in Private Practice as he was a government Minister at the material time, was a mere afterthought. He pointed out that the Appellants filed their answers and affidavits verifying the answers before the Respondent's Board which appear at pages 49 to 53 of the Record of Appeal. Furthermore, he pointed out that the answers and Affidavits were filed with the Respondent Board in 1997 and 1998. He went on to argue that the Appellants in addition filed with the Respondent Board, further answer to the amended complaint together with the Appellants' J13 verifying answer to the amended complaint on 15th December, 2000. In all these Answers and Affidavits, the Appellants did not mention these facts. According to Counsel, the 1st Appellant had in fact even admitted that he was liable to pay Zambia Privatisation Agency this money. (See page 215, paragraph 3 and page 103 lines 16 and 17 of the Record of Appeal). On the argument that the punishment was disproportionate and harsh, Counsel for the Respondent in response argued that this point was never raised in the memorandum of appeal as one of the grounds of appeal. This omission offended Order 59/3 RSC, 1999 Edition(7). This order has proscribed an appeal being argued on grounds not stated in the Memorandum of Appeal. In the alternative, citing the cases Of McCoan v General Medical Council (1964)2 All ER(2),at page 143 and The Attorney General v Richard Jackson Phiri(3], where the Court said “the Court ought to have regard only to the question whether the Public Service Commission had valid disciplinary powers and if so, whether such powers were validly exercised” he urged this Court to adopt to this approach and to dismiss the appeal. We have considered these arguments from both sides and the record before the High Court which is now before us. It is not clear whether or not the Appellants abandoned all other J14 grounds of appeal, other than grounds 4 and 5. Since even in the written arguments only grounds 4 and 5 have been canvassed, we will regard the Appellants' conduct as amounting to abandonment of the other grounds of appeal other than grounds 4 and 5. On ground 4 the core argument is that the two Appellants were not personally involved in the misconduct which occurred in the Appellant’s Kitwe office because the 1st Appellant was in active politics as Honourable Minister of Local Government and Housing and the 2nd Appellant was just an employee of Sonny P Mulenga International and not even stationed at Kitwe office. The Learned trial Judge dismissed this argument as an after thought. The two Appellants are challenging the Learned Appeal Judge’s holding that this argument was an after thought. We hold that, that finding is contrary to what is on record. On record we find that in the proceedings of the Respondent Board at pages 129 -139 (right at the bottom of the record of appeal), the 1st Appellant told the Board during inquiry that “When I worked as a Minister for Lusaka Province I had no time. I was very busy. I should have given somebody to run the firm. It is a mistake I made. I thought people were trusted." Even under the examination in chief by Mr Kapumpa, Counsel for the Appellant, this question in relation to A2 was brought out. This point was also canvassed before Appeal Court, the High J15 Court os reflected at page 242 and 247 of the record of appeal. We therefore hold that this argument was not an after thought. This conclusion therefore on this point by the Appeal Judge was a misdirection conclusion therefore on this point the Appeal Judge misdirected himself. Coming to the substantive argument that although the two Appellants were not personally involved in the misconduct, they were liable for that misconduct, and that, that misconduct fell under para 1 and 7(b) of the Rules of Professional Conduct and Disciplinary Proceedings. It was common ground that both the 1st Appellant and the 2nd Appellant were not physically in Kitwe when there was failure to remit money owed by the clients to ZPA and when there was failure to account for all the moneys got out of selling of the ZIMCO properties. In fact Mr Mulevu, Secretary, Zambia Privatisation Agency and Mr Mwandenga, Legal Counsel, Zambia Privatisation Agency laid evidence which established beyond any doubt that the two appellants were not physically involved in the misconduct. Counsel for the Appellants in augmenting this point advanced the argument that liability under Rules 1 and 7(d) of the Valuation and Surveyors Act, is personal and that there has to be a distinction between a breach of these Rules of Professional Conduct including Rules 1 and 7(d) of J16 the Valuation Surveyors Act, the third schedule of the Rules of Professional Conduct and Disciplinary Proceedings, and taking responsibility for the acts/omissions of one's employees because in the former there has to be personal liability whereas in the later an employer can be vicariously liable for misconduct of his/her employees. So he sought to persuade this Court to hold that the two Appellants were not guilty of this misconduct in that they did not have the intention nor was there any proof that they ought to have realised that lack of supervision was likely to bring about breaches of these Rules. We are persuaded by this argument by Counsel for the Appellants that there has to be a distinction drawn between breaches of Rules of Professional Conduct and Disciplinary Proceedings and employers' liability vicariously for acts/omissions of their employees. We are equally persuaded to accept his arguments that in breaches of disciplinary Rules, more particularly the breaches of Professional Conduct in Cap 207, there has to be personal liability moreless on the same standard as criminal liability. We are more fortified in adopting this approach because of the way legislature couched the third schedule of the Valuation and Surveyors Act, under Rule 20 of the Rules of Professional Conduct and Disciplinary Proceedings in Cap 207. In the said third schedule of Cap 207 Parti deals with defining what constitutes breaches of these Professional J17 Rules. The Appellants were charged under Rules 1 and 7(b) Part I of this third schedule. Part II of the third schedule deals with procedural steps to be taken by the Respondent Board for disciplining any Valuation Surveyor alleged to be in breach of the Rules catalogued in Part I. Of interest to our consideration is the use of the word “accused” in Part II in reference to any Valuation Surveyor alleged to have breached Rules in Part I. In our view, this reference to any Surveyor alleged to be in breach of Rules as “accused” connotes that legislature intended to evoke the same standard of culpability as that of criminal liability to be attached to those alleged to be in breach of Rules of Professional Conduct. In support of this school of thought, the Learned Authors of in the Earl Halsbury Laws of England Vol. 9(8) Lord Hailsham put it this way: “in general a person is not criminally liable for an act or omission unless he has himself committed the act or authorised or known of it or shut his eyes to the commission or omission" Applying this principle of personal liability in the case before us, there is evidence on which it is common ground that the two Appellants; (1) were not in Kitwe; (2) the 1st Appellant was in active politics; (3) that the 2nd Appellant was not stationed in Kitwe at the time the money was stolen and (4) the two Appellants were partners. The question is, was the lower court on firm ground to hold that the two Appellants were personally liable under rule 1 and 7(b) of the Valuation Surveyors Act, third schedule, Rules of Procedure and J18 Disciplinary Proceedings.(9) It would appear looking at all the facts that the respondent case has been all along that, lack of supervision in Kitwe office when selling ZIMCO properties led to non remittance of money to Zambia Privatisation Agency and non accountability of the money that was coming in from the sales of ZIMCO properties. The question before this Court which was before the High Court is whether or not such conduct or omission by the Appellants amounted to misconduct as stated under Rule 1 and 7(b) of the Valuation and Surveyors Act Cap 207. Rule 1(9) says: “No Surveyor shall carry on practise as a surveyor under any such name, style or title as to prejudice his professional status or the reputation of the Board.” We appreciate that under Rule 1, for the two Appellants to be found in breach, there has to be evidence that they carried out or omitted to carry out their valuation survey profession in such a way that their conduct prejudiced their professional status or the reputation of the Board. The two Appellants in all the stages have never disputed that huge amounts of money was stolen in their Kitwe office. They also have all along accepted that money from the proceeds of sale of ZIMCO properties was never accounted for in their Kitwe Office. Their defence was all along that they were not personally involved in the day to day running of the Kitwe office. Rule 7(b) says: "Every Surveyor shall - at the due time, account to all the parties entitled hereto for all moneys held as aforesaid, less any legitimate deduction there from.” We are J19 satisfied that the two Appellants were responsible for any practice done by surveyors in their Kitwe office. We also appreciate that, for the two Appellants conduct to fall under the two rules, there has to be proof that there was direct conduct or omission to take such action by the two Appellants which brought about the lack of accountability in the Kitwe office for the moneys received for selling ZIMCO properties. To answer that question this Court in the case of George Malachi Mabuye v. Council of Legal Education(5) adopting Zimbabwe's Court of Appeal ratio in the case of Leslie Thomas Hayes v The Bar Council of Zimbabwe,, judgement No. A. D.83/81 (5), put it this way: “However, though the question is one of fact, it is not without its own difficulty. As Baron, J. A. put it in Hayes: “But insofar as this court is called upon to determine whether an applicant is a fit and proper person, it makes, as Mr Jagger puts it, a value Judgement". This Court in the same case of George Malachi Mabuye V. Council of Legal Education(5), explained that, for such conduct to come under these Rules, and for any conduct to infringe professional rules and to be defined as misconduct, there must be proof that a conduct complained of has not only been serious but it has been such that, it undermines the integrity of such a person to the extent that such a person cannot be expected to uphold the standard of that profession in question and that no amount of repentance could redeem his integrity in that profession. In our view, the answer depends on the circumstances in the given case. J20 In the case before us, obviously there were huge sums of money involved which were not accounted for and which were not remitted to Zambia Privatisation Agency. The two Appellants have never disputed the fact that the Kitwe office was part of 8 P Mulenga International and that they were partners in 8 P Mulenga International. Given all these facts, they cannot distant themselves from the activities which went on in Kitwe office. We therefore hold that their conduct or omission amounted to professional misconduct and as such fell under Rules 1 and 7(b) of Part 1 of the third schedule, Rules of Procedure and Disciplinary Proceedinqs.(9) Coming to the added ground, concerning the proportionality of the punishment given to the two Appellants for misconduct, they were found guilty of. We do not believe that the integrity of a person cannot be redeemed after a previous lapse if the person can show that she/he has redeemed herself/himself in a way which shows repentance even though we recognise that certain conduct or misconduct even if isolated would tend to show that there is inherent defect in that particular person's integrity, making it difficult to visualize how members of the public might be expected to show trust in dealing with him. More particularly, we take into account observations in the case of Re Weare (1893)2QB 439(7) where Lord Esher M R at page 446 in his wise words says: “The Court is not bound to strike him off the roll J21 unless it considers that the criminal offence of which he has been convicted is of such personally disgraceful character that he ought not to remain a member of that strictly honourable profession.” But this consideration is defeated by Mr Mushemi argument’s which we accept as valid, namely that this ground of appeal was never canvassed in the Memorandum of Appeal and as such offends Order 59/3 RSC, 1999 Edition(7) which says: "Except with the leave of the Court of Appeal, a single judge or the registrar, the appellant shall not be entitled on the hearing of an appeal to rely on any grounds of appeal, or to apply for any relief, not specified in the notice of appeal.” This is a cardinal rule rendering the argument on the added ground irrelevant. We therefore in total sum dismiss the appeal. We make no order to costs. D. K. Chirwa SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE KA/KABALATA AG/SUPREME COURT JUDGE