Tembo v Attorney General (SCZ 8 207 of 2011) [2015] ZMSC 58 (8 September 2015)

IN THESUPREMECOURTOFZAMBIA HOLDEN AT NDOLA (Civil/llrisdictioll) BETWEEN: PETERTEMBO AND APPEAL NO. 139/2011 5(2/8/207/2011 / APPELLANT THEATTORNE~GENERAL RESPONDENT CORAM: Mwanamwambwa, D. C. J, Chibomba. Hamaundu, J. J. S. On the l'tSeptember, 2015 and 8th September, 2015 For the Appellant: For the Respondent: Mr. E. Mukuka of Messrs Mukuka and Co. Ms C. Mulenga, Acting Principal State Advocate, Attorney- General's Chambers. JUDGMENT Mwanamwambwa, D. C. J, delivered the Judgment of the Court. Cases referred to: 1. Zesco V. Lubasl Muyambango (2006) ZR 22 2. Attorney-General V. Richard Jackson Phlrl (1988-89) ZR 121 3. Marcus Kampumpa Achlume V. The Attorney-General 4. National Breweries Limited V. Phillip Mwenya (2002) Z. R. 18. 5. Zambia National Provident Fund V. Yekwlna Mblnlwa Chlrwa (1986) (1983) ZR 1 Z. R.70 6. Masauso Zulu V. Avondale Housing Prolect (1982) Z. R. 172 (S. C.) Legislation referred to: 1. The Industrial Relations Act, Cap 269 of the Laws of Zambia, Section 97. ..12. This is an appeal from the decision of the Industrial Relations Court dismissing the Appellant's Complaint for unfair dismissal. The brief facts of the matter are that the Appellant was employed by the Government of the Republic of Zambia as an Accountant for Central Province. The Appellant was in charge of paying out loans and advances to officers working for the Government in the Province. On the 27th of January, 2009, the Appellant was charged with causmg four unauthorised Household Loan payments. One of the four payments was to himself in the sum of KlO,OOO,OOO (before rebasing). The Appellant exculpated himself and subsequently appeared before the Sub-Committee of the Provincial Appointments, Promotions and Disciplinary. The Appellant accepted responsibility for his actions. He was suspended from duty pending the determination of his case by the Public Service Commission. According to the evidence on record, the Appellant had been charged for similar conduct in 2008 and was given a final warning. The Appellant was dismissed on 21 st August, 2009. As a result of the dismissal, the Appellant took out a Complaint in the Industrial and Labour Relations Court on the following grounds: "I was employed by the Respondent on 1st November, 1993 as a Meteorological Assistant, moved to Ministry of Finance as Assistant Accountant In 1998. 1 was dismissed on 1st August, 2009. I was unfairly dismissed after the office of the Permanent ••1:1. Secretary, Central Province approved a loan of K20,OOO,OOO.00 (before rebaslng) but paid me in parts of K8,OOO,OOO.00(before rebaslng) and K10,OOO,OOO.00(before rebaslng) respectively. My last position was Accountant." The Appellant sought the following reliefs: "compensation for unfair dismissal, interest, costs and anything the Court deems fit." After hearing the matter, the Industrial Relations Court was of the view that the following facts were not in dispute: 1. that the Appellant made four unauthorised Household Loan payments; 2. that the Appellant was only entitled to a Household Loan of up to K8,OOO,OOO.00 (before rebasing)j 3. that the Appellant exculpated himself and later appeared before the Disciplinary Committee; 4. that prior to the charges against him, the Appellant was given a final warning on the 16'h of July, 2008, with regard to the other unauthorised payments he earlier made; and 5. that the Appellant was dismissed on the 21" of August, 2009, and that his subsequent appeals against the decisions of the Public Service Commission were unsuccessful. Finally, the lower Court was of the view that the provisions of the law were met in that the Appellant underwent the disciplinary process which included being charged, exculpating himself, appearing before a Disciplinary Committee and finally dismissal from employment. The Court stated that in terms of the law, the Respondent acted in accordance with the principles of natural justice. The lower Court added that the Appellant accepted responsibility for his actions, when he appeared before the Disciplinary Committee. It went on to find that the Appellant committed an offence for which the ultimate punishment was dismissal and that his dismissal was fair. The Appellant appealed against this decision on three , grounds. These are- Ground one The lower Court erred in law by upholding a decision to dismiss the Appellant in a matter in which a decision had already been made by the Permanent Secretary and the Disciplinary Committee which was unprocedural. Ground two The lower Court erred in law by misunderstanding the evidence as given to them which led them to make an incorrect decision. Ground three The lower Court erred in law by finding a fault in the way the loans were disbursed by the Appellant when there was no such fault. ...15. For convemence, we shall deal with all the grounds of appeal together. In the first ground of appeal, counsel for the Appellant submitted that a decision in the form of a final written warning had been made on the same case that led to the dismissal of the Appellant. He argued that there is no rule of procedure which permits a body to discipline someone and come up with a decision of giving final written warning and afterwards dismiss the same person on the same subject matter. He added that the duty of the Court is to examine whether there was the necessary disciplinary power and if it was properly executed. He cited the case of Zesco V. Lubasi Muyambango (1) to support his argument. Counsel also referred us to the case of Almaz Lulseged and British Airways Limited. We shall disregard this case because we were not availed with the full citation. On behalf of the Respondent, counsel argued, in opposmg ground one, that the disciplinary power was properly exercised in that there were in fact facts established to support the disciplinary measures taken against the complainant. She cited the case of Attorney-General V. Richard Jackson Phiri (2) to support her argument. Counsel also argued that the Judgment appealed against reveals that the findings, in question, were not perverse nor misapprehended as there was relevant evidence. She cited the case of Marcus Kampumpa Achiume V. The Attorney- General (3) to support her argument. ..m. In ground two, counsel for the Appellant submitted that the Respondent never gave oral evidence in the Court below. That as a result, their evidence was not tasted and hence the findings of fact made by the Court were a misunderstanding of the evidence before the lower Court. On behalf of the Respondent, counsel also argued that the lower Court heard evidence from the Appellant and considered the documents before it from both parties. She added that there was no misunderstanding or misapprehension of the evidence and that the assertion that the Court made an incorrect decision is misconceived. In ground three, counsel for the Appellant submitted that the letter appearing on page 25 of the record of appeal shows that the Appellant violated category E No. llc(i) and (ii) of the Civil Service Disciplinary Code, as read together with the Financial Regulations Act, of 2006. That the quoted code and rules do not talk about how loans should be managed and who is entitled to get them. It was his argument that the Respondent did not prove to the Court that the loans given were unreasonable or that there appeared to be a problem in the giving of the said loans. He added that the quoted rules refer to incorrect payment of public money, stealing and so on. That these appear not to deal with loans. -.17- On behalf of the Respondent, counsel submitted that the Appellant failed to prove his case in the Court below and therefore, was not entitled to judgment. We have looked at the evidence on record in this matter. We have also considered both parties' submissions and authorities cited. It is not in dispute that the Appellant made four unauthorised payments, one of which was to himself. It is also not in dispute that he was charged and that he exculpated himself in writing. In the process, he accepted responsibility. At the time of the events that led to his dismissal, the Appellant was on a final warning for similar conduct. The evidence on record shows that the final warning related to similar conduct that occurred in 2008. The conduct that led to his dismissal occurred in 2009. He was finally dismissed by the Public Service Commission. This shows that procedure was followed. The Appellant was given an opportunity to be heard and he was heard. Therefore, the Appellant's argument that he was disciplined twice for the same offence cannot be sustained. In addition, from the evidence on record, we are satisfied that the necessary disciplinary power existed and that it was exercised in due form, as all the procedures were followed in dismissing the Appellant. We wish to state that even assuming that procedure was not followed before dismissing the Appellant, it still remains that the -.111- Appellant committed a dimissable offence. He accepted responsibility in his exculpatory letter. In the case of Zambia National Provident Fund V. Yekewina Mbiniwa Chirwa 141, we held that: "Where It Is not In dispute that an employee has committed an offence for which the appropriate punishment Is dismissal and he Is also dismissed, no Injustice arises from a failure to comply with the laid down procedure In the contract and the employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal Is nullity." The above position was confirmed in the case of National Breweries PLC V. Phillip Mwenya,151 where it was held that: "Where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated In the contract and such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal Is a nullity" From the above authorities, it is clear that the Appellant's grounds of appeal cannot be sustained. Further, we note that this Appeal is challenging the lower court's findings of fact. The law is well settled that a party to an appeal from the Industrial Relations Court can only appeal on points of law or on points of mixed law and fact. See: Section of the Industrial Relations Act, Cap of the laws of Zambia. •. J!). Counsel for the Appellant also argued that the part of the Civil Servants Disciplinary code which the Appellant is alleged to have violated does not deal with the payment of loans but with incorrect payment of public money. We are of the strong view that incorrect payment of public money covers unauthorised payments of loans. The Government has laid down procedures that need to be followed before money can be paid out as loans, salary advances and so on. If money is paid out outside the procedures that have been laid down, such payments will obviously be unlawful. Such payments will fall into the bracket of "incorrect payment of public money," as counsel for the Appellant put it. Therefore, we are of the view that the Appellant's argument on this issue has no merit. Finally, we wish to address the argument by the Appellant that the Respondent only relied on affidavit evidence in the lower court. That the Appellant did not have an opportunity to test the Respondent's evidence as no one testified on behalf of the Respondent. We wish to state that whether the Respondent had called evidence or not, the Appellant still retained the burden to prove his allegations that he was unfairly dismissed. This Court held in the case of Wilson Masauso Zulu V. Avondale Housing Project (6) that- "Where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed any other case where he makes any allegations, It is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponents' case." ,- , -.1111- • On the authority of the Masauso Zulu case, it is clear that the Appellant needed to show that he was unfairly dismissed despite the fact that the Respondents did not call any witnesses. The Appellant was not entitled to judgment simply because the Respondent did not adduce oral evidence. The Appellant failed to discharge his burden and thus the lower Court correctly ruled against him. For the reasons we have gIven above, we uphold the • decision of the lower Court and dismiss this appeal for lack of merit. We award costs to the Respondent. To be taxed in default of agreement. ............................................. H. CHIBOMBA SUPREME COURT JUDGE . ~~~ E. M. HAMAUNDU SUPREME COURT JUDGE .