Harman v Bank of Zambia (Appeal 185 of 2015) [2016] ZMSC 277 (9 September 2016)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 185/2015 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: SUSAN MWALE HARMAN APPELLANT and BANK OF ZAMBIA RESPONDENT CORAM: MAMBILIMA, CJ, KAJIMANGA, CHINYAMA, JJS On 6th September, 2016 and 9th September, 2016 For the Appellant: Mr. F. Besa of Messrs. Besa legal Practitioners. For the Respondent: Mr. H. A. Chizu of Chanda Chizu and Associates. JUDGMENT MAMBILIMA, CJ delivered the Judgment of the Court AUTHORITIES REFERRED TO: 1. MULUNGUSHI INVESTMENTS LIMITED V GRADEWELL MAFUMBA, APPEAL NO. 141 OF 191; 2. LUMUS AGRICULTURAL SERVICES CO. LTD V GWEMBE VALLEY DEVELOPMENT LIMITED (1999) ZR 1; 3. TELIAT SULE V NIGERIAN COTTON BOARD (1985) 2 NWLR 17; AND 4. ZAMBIA NATIONAL PROVIDENT FUND V. YEKWENIYA MBINIWA CHIRWA (1986) ZR 70. LEGISLATION AND WORKS REFERRED TO: 1. THE INDUSTRIAL AND LABOUR RELATIONS ACT, CAP 269 OF THE LAWS OF ZAMBIA; 2. BLACK'S LAW DICTIONARY 8TH EDITION PAGE 664; AND 3. AUTHENTICATION OF DOCUMENTS ACT, CAP 75 OF THE LAWS OF ZAMBIA. This is an appeal from the decision of the Industrial Relations Court (IRC), dismissing the Appellant's claim to be reinstated in the employment of the Bank of Zambia (hereinafter referred to as 'the Bank') and/or, in the alternative to be awarded damages for unfair, unlawful and wrongful dismissal, together with interest on the amount that would be found to be due to her. The background to this case is that the Appellant was employed by the Bank in 1992 as a Note Examiner. She told the Court below that her work entailed working on a machine that cancels numbers from notes; that as she was working, her arm started feeling numb. She sought medical treatment after which her employers were advised to change her duties. She was put on medication and attended physiotherapy. On 29th January 2002, the Appellant applied, and was granted a one year study leave which commenced on 19th February, 2002. It was to end on 28th February, 2003. On 30th December, 2002, she applied and was granted an extension to the said study leave up to June 2003. It is on record that on 5th January, 2005 the Appellant applied for 60 days unpaid leave which was to commence on 24th January, 2005, and end in May 2005, to enable her to accompany her son who was going to school in England. The leave was granted. In April 2005, the Appellant applied to extend this unpaid leave, but the bank declined her request. She was asked to report back for work by 6th June, 2005, failure to which she would be treated as a deserter. She was also asked to produce a medical report to support her absence from work upon expiry of her unpaid leave. Notwithstanding the refusal for her to extend her unpaid leave, the Appellant did not report back for work upon the expiry of the leave. Explaining what led to her failure to report back for work after her unpaid leave, the Appellant told the Court that upon her arrival in England in January 2005, her back got swollen prompting her to seek medical treatment. That when the swelling did not go down, she went to see a specialist who changed her medication. That the doctors started conducting investigations to determine her condition and she forwarded documentation to the Bank, to show that she was being attended to. She produced some of the correspondence that was exchanged between her and the Bank in the record of appeal. Two of the letters were written in October 2005 while one was written in November 2005. They are all from Hull and East Yorkshire Hospitals and they talk of appointments to see doctors. One such letter is on page 133 of the record of appeal. It is advising the Appellant to make an appointment to see a Mr. C. J. SHAW. There are other letters which were written after the Appellant was discharged. On 26th October 2005, the Bank wrote to the Appellant in the following terms: "Dear Mrs. Harman, DESERTION FROM DUTIES FOR MORE THAN TEN (10) CONSECUTIVE DAYS WITHOUT SATISFACTORY EXPLANATION Reference is made to the above captioned matter, which is a case arising from your failure to report for duties after expiry of your approved leave. In your letter dated 2nd June 2005, you stated that you were not well enough to undertake a long journey from the United Kingdom to Zambia and that you were receiving medical treatment. You also promised to send us medical reports to support your action to stay away from work. To date, more than five (5) months after expiry of your unpaid leave, you have not tendered any medical report to support your continued stay away from work. In this regard, we write to request you to report back for work within seven days from the date of this letter or produce an authentic medical report declaring you unfit for work, failure to which you should consider yourself discharged from the services of the Bank. Yours sincerely, (signed) H. M. KAPUTA" It would appear that the Appellant did not comply with the directive to report for work within seven days from 26th October, 2005 because on 2nd December, 2005, the Bank wrote to inform her that since she had failed to report for work within the 7 days that was stipulated in their letter of 26th October, 2005, and had failed to furnish any medical evidence that she was unfit for work, she had been discharged from the services of the Bank. However, on 8th December, 2005 the Appellant wrote to the Bank updating them on her medical condition in the following terms: "I would like to update you on my medical progress and inform you that I went to see the consultant on 24th November 2005. I will make an appointment to see my general practitioner in two weeks (as I have to allow for my file to be sent to the surgery from Castle Hill Hospital) to get the consultant's written findings and recommendations, which I will send to your office. I have already received a letter from the Physiotherapy Department to arrange for an appointment (see attachment). My first physiotherapy session begins on 15th December 2005. (signed)' Susan M. Harman." She later wrote another letter on 22nd December, 2005, this time stating that she did not accept the Bank's decision to discharge her. She contended that she was still going through medicals and had an appointment for surgery on 21st December 2005. She attached a note from her doctor and requested to be paid her salary which, according to her, was eight months overdue. It is on record that the Appellant came back to Zambia in April 2006 and when she approached the Bank with regard to her employment, the Bank insisted that she had been discharged. When she was cross-examined during her testimony in the Court below, she stated that she had actually applied for separation from the Bank in April, 2004, to enable her settle in England with her family and also that she had sought an extension of her unpaid leave in order to write her ACCA examinations in June 2005. She admitted that she had failed to produce medical reports at the time that the Bank requested for them and only did so after she had been discharged. After failing to get back her job, the Appellant moved the IRC seeking an order of reinstatement and in the alternative, to be paid damages for unfair, unlawful or wrongful dismissal. The Respondent filed an answer to the Appellant's claim in which it denied that the Appellant was unfairly, unlawfully or wrongfully discharged. It contended that it acted within the provisions of its Disciplinary Code when it discharged the Appellant. That the Appellant acted in a manner that breached the Code when she did not report back for work after she was granted unpaid leave which ended on 4th May, 2005. That the Appellant failed to provide medical reports to support her failure to report for work and was accordingly deemed a deserter and consequently discharged on 2nd December, 2005. The evidence of the Bank witness, Mr. Evans MAYUNI, Manager, Staff Benefits from Human Resource and Administration echoed the Bank's position. He told the Court that the Appellant did not apply for sick leave when she went to England. That it became clear that she wanted to stay in England in order to be with her family. He told the Court that the Bank treated the Appellant fairly as she was reminded several times to report for work or submit a medical report declaring her unfit for work, but she failed to do so. She was thus deemed to have been absent from work without permission. Upon considering the evidence that was before it, the Court below observed that the Appellant was aware that her unpaid leave had expired and the onus was on her to resume work or to render a medical report declaring her unfit for duty. The Court went on to state that the mere fact that she continuously updated her employer about the medical attention she was receiving did not legitimise her absence from work. The Court, while acknowledging that the complainant was taken ill whilst in England, was of the firm belief that if her medical condition was as adverse as she portrayed it to be, the normal and correct procedure would have been for her doctor to declare her unfit for work as opposed to issuing her with a medical report retrospectively after she had been discharged. The Court found that the doctor's retrospective declaration of the Appellant's unfitness for duty was highly unusual, unprocedural and not helpful to her case. It found that the Appellant had breached her terms and conditions of service by being absent from work for seven months after her leave had expired and failing to furnish her employer with a medical report indicating that she was unfit to work. The Court found that the Bank was within its rights to accept the Appellant's repudiation of her contract of employment, having regard to the merits of the case. It was satisfied that the Bank acted reasonably in treating the Appellant's conduct as repudiating her contract of employment. Relying on the case of MULUNGUSHI INVESTMENT LIMITED VS GRADWELL MAFUMBA1, the Court found that the dismissal in this case was justified and dismissed the Appellant's entire claim. Dissatisfied with this determination of the Court, the Appellant has now appealed to this Court citing four grounds of appeal, namely:- 1. The learned Judge and Honorable Members erred in law and fact in holding that the main reason the Appellant sought to extend her unpaid leave in April, 2005 was because she was waiting for the decision on the VESS Appeal and that its because she was to write her ACCA exams in June, 2005 in the presence of overwhelming evidence which showed that she was seeking medical treatment in London. 2. The learned trial Judge and honourable members in the Court below erred in both law and fact in holding that the Appellant did not justify her absence from work in the presence of overwhelming evidence showing that the Appellant had written to the Director, Human Resource of the Respondent notifying him that she was receiving medical treatment and that she was required to go back to the hospital the following month for review. 3. The learned Judge and Honourable Members in the Court below erred in fact and in law in holding that the fact that the Appellant was continuously updating her employers about the medical attention she was receiving did not legitimize her absence from work when the evidence of the doctor CW 2 clearly established that the Appellant indeed had a condition that required medical attention. 4. The learned trial Judge and Honourable Members erred in both law and fact that in rejecting the medical report that was presented by the Appellant on grounds that it was submitted to the Respondent retrospectively when there was overwhelming documentary evidence presented by the Appellant which came from her doctors in England which stated that the report could not be presented immediately it was demanded for by the Respondent as the doctors required to first conduct examinations on the Appellant before they could give her the medical report." The first ground of appeal raises issue with the finding of the lower Court that the main reason that the Appellant sought to extend her unpaid leave in April 2005 was because she was waiting for the decision of the Voluntary Early Separation Scheme (VESS) and also, that she intended to write her ACCA examinations in June 2005. The learned Counsel for the Appellant has submitted, in the main, that there is overwhelming evidence on record which showed that the Appellant was seeking medical evidence in England. That the Appellant had a pre-existing medical condition which worsened when she arrived in England prompting her to seek further medical attention. He contended that the Respondent was very much aware of this medical condition and had even been io advised to relocate the Appellant to other duties. That doctors in England had recommended that the Appellant's condition would be aggravated if she took a long flight from England to Zambia. That having communicated her sickness to the Respondent, the Appellant complied with Clause 5.2.4 of the Respondent's Staff Handbook which provided:- "An employee who is absent through illness, or who, is on the prescription of a recognised medical practitioner, stays away from work has a duty to advise his supervisor as soon as possible so that any re-arrangement of duties which may be necessary will be effected quickly. Generally speaking, and unless there are exceptional circumstances, it should be practicable for a message through a third party if necessary to reach the Bank shortly after 0900 hours on the day an employee is first absent...." Relying on this provision, Counsel submitted that it was not only unreasonable but also illegal for the Respondent to have demanded that the Appellant produces a medical certificate declaring her unfit for duty. The Bank's response to this ground of appeal was that the Appellant, under her own hand, authored a letter on 14th April, 2005 to the Director of Human Resource seeking permission to extend her leave since she had not heard from the Bank on their position pertaining to her VESS appeal and that she would also be u writing her ACCA examinations in June. In the said letter, the Appellant stated:- "SUBJECT: EXTENSION OF UNPAID LEAVE I would like to seek your permission to extend my leave for two months reasons being that since I have not yet heard from the Bank on my position about my VESS appeal, I would like to stay in England with my family until I have been advised about the Bank's decision on the matter. The second reason is because I will be writing my exams in June 2005 and the closing date for entries to ACCA is 15th April, 2005 and I have had to choose Hull as my exam centre since my decision to where I will be writing exams depends on the response from the Bank. I look forward to hearing from you. Thank you (signed) SUSAN MWALE HARMAN' Counsel submitted that on 26th April 2005, the Appellant withdrew her VESS appeal and applied for 24 months unpaid leave. That in the same letter, she stated that, the Doctor's letter concerning my health states that I am fit to work, as long as I can be relocated in my duties...." He argued, consequently, that the alleged failing health could not have been the reason that the Appellant was applying for unpaid leave. Counsel further submitted that this ground of appeal is based on facts, and not a point of law or mixed law and fact. He urged us not to entertain the appeal. We have considered the submission of Counsel on the first ground of appeal. Indeed, Section 98 of the INDUSTRIAL AND LABOUR RELATIONS ACT1 states that:- "Any person aggrieved by any award, declaration, decision or judgment of the Court may appeal to the Supreme Court on any point of law or any point of mixed law and fact." The first ground of appeal is contending with a finding of fact. On page 18 of the record of appeal, the Court below found as a fact that the Appellant did, on 14th April apply for an extension of her unpaid leave until she was advised of the fate of her VESS appeal and that the other reason she indicated was that she was due to write her ACCA exams in June, 2005 in England. According to the learned authors of BLACKS LAW DICTIONARY2, a finding of fact is defined as a "determination by a Judge, jury...of a fact supported by the evidence in the record, usually presented at the trial or hearing..." The finding in this case was made after trial upon the evidence supported by a letter under the Appellant's own hand as to why she was applying to extend her unpaid leave. Clearly, there is no point of law or mixed law and fact raised in this ground of appeal. This Court, therefore, has no jurisdiction to entertain this ground. Even assuming that the ground had raised points of law, it would have suffered a mortal blow in view of the evidence that was before the lower Court. The Appellant never alluded to medical issues in her letter applying for an extension of her unpaid leave. In arguing the second ground of appeal, the learned Counsel for the Appellant submitted that the Appellant had adduced sufficient evidence before the lower Court, justifying her absence from work. According to Counsel, this evidence was in form of letters that the Appellant sent to the Respondent and appearing from page 153 to 164 of the record of appeal. He also relied on Clause 5.2.4 of the Staff Hand Book. In response to the second ground of appeal, the learned Counsel for the Respondent referred us to the Respondent's letter of 30th May, 2005, informing the Appellant that her request to extend her unpaid leave had been declined. That in the same letter, she was advised that if she did not report for work by 6th June, 2005, she would be treated as a deserter That she needed to furnish a medical report for the period that she had been absent after her unpaid leave. That the Respondent further wrote to the Appellant on 26th October 2005 giving her seven days in which to report for work failure to which she would be discharged but to no avail. She was further requested to produce a medical report declaring her unfit to work but she failed to do so. Counsel submitted that the Appellant, as an employee of the Bank, was bound to provide services and to obey her employer's orders within the scope of her duties. That just as she expected to be paid salaries, she was also expected to work and obey rules. That the Appellant breached the terms of her contract and her personally authored letter would not absolve her from her duties. That the Court was therefore on firm ground to have found that her absence from work was not justified and that even after discharge the Appellant continued to give excuses. Counsel also submitted that the finding in this case was also a finding of fact which cannot be appealed against. We have considered the submissions of Counsel on the second ground of appeal. We agree with the learned Counsel for the Respondent that in this ground of appeal, the Appellant is not raising any point of law or mixed law and fact. She is contending with the finding of the Court that she did not justify her absence from work. The kernel of the Appellant's argument is that she sent letters to the Respondent that she was receiving medical treatment in England. The letters in issue show the various appointments that she had at hospitals and with doctors. There is nothing to explain her fitness for work, which is what the Respondent was looking for. Having upheld the Respondent's position that the Appellant applied for unpaid leave in order to await the outcome of her VESS appeal to write her ACCA exams in June 2005, the issue of the medical condition falls away. In fact, in her application, she stated that the doctor's letter had indicated that she was fit for work as long as she can be relocated other duties. The only semblance of a legal point is the issue of compliance with Clause 5.2.4 of the Handbook. This does not form part of the ground of appeal. The learned Counsel for the Respondent has submitted that it was not pleaded in the lower Court. We have stated in a plethora of authorities that a matter that is not pleaded and raised in the trial Court cannot be canvassed on appeal. The second ground of appeal also fails. In arguing the third ground of appeal, the learned Counsel for the Appellant relied on the evidence on CW 2, Doctor Chola Baldwin MUTALE, who diagonised the Appellant with cervical spondylosis. He submitted that the Appellant was unwell and seeking treatment in England. He took a swipe at the Respondent's witness Evans MUYUNI, who, according to him, played no role in the case but came to create an impression that the Appellant had been unreasonably asking to go on leave so that she could be with her husband. According to Counsel, CW 2 was an expert witness whose evidence should have guided the Court to reach its conclusion. Responding to the third ground of appeal, the learned Counsel for the Respondent echoed his earlier submission that the purported grounds of appeal are against findings of fact which raise no points of law or mixed law and fact. He pointed out that the Appellant alleged unfair, unlawful and wrongful dismissal. That she was discharged because she absconded from duties for more than ten consecutive days and failed to produce a medical report declaring her unfit for work. Counsel strongly objected to the raising of the issue in relation to Clause 52.4 of the staff handbook for the very first time on appeal, as it was not raised in the Court below. Counsel submitted that the lower Court was on firm ground when it held that the continuous updating of the Respondent by the Appellant about her condition did not legitimise her absence from work. That she was discharged because she stayed away and did not produce a medical certificate that she was unfit for work. On CW 2, Counsel submitted that the witness did not testify as an expert but an ordinary witness who had attended to the Appellant. That he was a witness of facts whose evidence was considered by the Court and it made its findings of fact. That the issue before the Court was to determine the fairness or otherwise of the discharge of the Appellant. We have considered the submission of Counsel on the third ground of appeal. Again, the ground is contending with findings of fact by the Court below. The semblance of a point of law is veiled in the reference to Clause 5.2.4 of the Handbook. As we have stated above, compliance with this Clause was not raised in the Court below and we agree with the learned Counsel for the Respondent that this issue cannot now be raised on appeal. The findings of fact on record are amply supported by evidence. At the time of discharge, the Appellant had not reported for work several months after her unpaid leave had ended and there was no medical certificate to justify her absence. We find that this ground of appeal is also incompetent. The fourth ground of appeal is that the Court erred to reject the medical report that was submitted retrospectively by the Appellant. Counsel submitted that the Appellant was sick. That the Respondent did not even comply with its own disciplinary code which required the giving of notice or payment in lieu of notice. He argued further, that no Disciplinary Committee was constituted to hear the Appellant's case contrary to the provisions of the Disciplinary Code and no investigations were carried out. That the letter of discharge was written by the Acting director, Human Resource, who had a personal difference with the Appellant. Counsel contended that the Respondent's conduct was an outright violation of the Appellant's rights under her conditions of service. That she should, at least, have been paid her terminal benefits. The Respondent's response to the fourth ground of appeal, is that the documents that the Appellant relied on could not bind the Bank. He contended that some of the documents were not signed and their authors were not called to give evidence. That being foreign documents, they needed to be authenticated under Section 3 of the AUTHENTICATION OF DOCUMENTS ACT3. To support his argument, Counsel referred us to the case of LUMAS AGRICULTURAL SERVICES CO. LTD V GWEMBE VALLEY DEVELOPENT LIMITED2 in which we held that a document that is not authenticated, cannot be used in this country; that such document is valid between the parties and ineffective against third parties. Counsel further submitted that the Appellant availed the medical report in issue, after she had already been discharged and that, as a result, the medical report was of no consequence. The learned Counsel for the Respondent further submitted that the Respondent was entitled to treat its contract with the Appellant as repudiated because the Appellant's conduct disclosed a deliberate intention to disregard the essential requirements of a contract of service. He referred to, among others, the Nigeria case of TELAT SULE V NIGERIAN COTTON BOARD3, in which the Court observed:- "When a servant grows too big to obey his master, the honourable cause open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for obedience be serviced with disobedience. Both common law and statute brook no disobedience of lawful orders from any servant, high, low, big or small. Such conduct normally and usually attracts the penalty of summary dismissal. Disobedience ranks as one of the worst form of conduct in any establishment." Counsel also submitted that the issue of alleged unpaid benefits was not raised in the Court below and was not pleaded. He pointed out that the Appellant sought reinstatement or in the alternative to be paid for her medical expenses. He submitted that the Appellant is bound by her pleadings. He urged us, consequently, not to address the issue of unpaid benefits. He urged us also, to take note that the Appellant was on perpetual unpaid leave. Counsel ended by submitting that the Appellant is not entitled to any damages since she was notified of the consequences of not reporting back for work. That the Appellant was absent for a long time and it did not therefore matter the nature of termination or the clause used. We have considered the submissions of Counsel on the fourth ground of appeal. It is not in dispute that the much sought for medical report was availed after the Appellant had already been discharged. The learned Counsel for the Respondent has pointed us to the provision of the AUTHENTICATION OF DOCUMENTS ACT3 to support his submission that being a foreign document, the belated medical report ought to have been authenticated. Be that as it may, it is on record that the Respondent informed the Appellant as early as 30th May 2005, that her absence from work will have to be supported by a medical certificate. She was told to report for work by 6th June, 2005, otherwise she would be treated as a deserter. The same warning was repeated in the Respondent's letter of 26th October 2005. The Appellant was given seven days in which to report for work 'or produce an authentic medical report' declaring her unfit for work but to no avail. She was discharged on 2nd December 2005 for having failed to report for work within 7 days from 26th October, 2005 and failure to produce medical evidence that she was unfit for work. It is on record that it was only after the discharge that the Appellant produced a medical report, retrospectively declaring her unfit for work. We agree with the Court below that this was unusual and did not help her case since it was like closing the stables after the horses had already bolted. The Respondent asked for an 'authentic' report and the report produced was not authenticated. Further, this was against the background of the Appellant herself having stated that 'the doctor's letter concerning my health states that I am fit to work as long as I can be relocated in my duties....' This statement brings into question, the retrospective medical report which declared the Appellant unfit for work. Counsel for the Appellant has maintained that even assuming that the Respondent had reasons for discharging the Appellant, it did not validly do so because, according to him, it did not follow its own disciplinary procedures. He has, accordingly, asked us to, at least, order the Respondent to pay the Appellant her terminal benefits. In our view, the facts of this case clearly show that it was not possible to subject the Appellant to a disciplinary hearing because she had refused to come back to Zambia. The whole basis of her discharge was her failure to come back to Zambia despite several demands by the Respondent. In any case, the fact that she deserted from her duties for a period of more than 10 working days, is not in dispute. The penalty prescribed by the Respondent’s Disciplinary Code, for ‘abandonment of duties/desertion from duties for more than 10 consecutive working days without satisfactory explanation’, is discharge. We held in the case of ZAMBIA NATIONAL PROVIDENT FUND V. YEKWENIYA MBINIYA CHIRWA4 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.” Accordingly, applying our decision in the Zambia National Provident Fund4 case, we hold that no injustice was occasioned to the Appellant by the Respondent’s failure to adhere to certain procedural provisions of the Disciplinary Code. On the claim that the Appellant should be paid terminal benefits, we have carefully looked at the Appellant’s Notice of Complaint and her evidence before the lower Court. The Appellant did not claim for terminal benefits in either the Notice of Complaint or her oral evidence before the lower Court. All that the Appellant said in her testimony was that she would like the Court to order reinstatement or, in the alternative, payment for her medical expenses. The issue of terminal benefits only arose in Counsel for the Appellant’s oral and written submissions before this Court. For the above reasons, we cannot order the payment of terminal benefits to the Appellant. It is evident to us, from the evidence and documents on record that the Appellant displayed complete lack of commitment to her job. From 2002, she was mostly on unpaid leave which she wanted to perpetuate. Although she had a medical condition, it would appear that the failure to return was driven by her desire to live in England with her family. This can be gleaned from her failed applications for VESS and extension of her unpaid leave. Both parties to a contract of employment have obligations. The employee must provide services while the employer must pay for the services. It is clear to us that in this case, the Appellant just wanted to be on the establishment of the Bank and hold on to a position for which there was no consideration to the Bank. She disobeyed pleas to report back with impunity and sought to create her own conditions purely to suit her desire to stay in England. We agree with the sentiments of the Court in the case of SULE V NIGERIAN COTTON BOARD3 that disobedience on the part of an employee attracts unpleasant consequences when an occasion calls for obedience. The Appellant should have heeded the ultimatums given to her in June and October 2005 to report for work. We cannot, therefore, fault the lower Court for stating that the "the Doctor's retrospective declaration of the complainant's unfitness for duty", was highly unusual, unprocedural and not helpful to her case." From the foregoing, we find absolutely no merit in this appeal. It is accordingly dismissed. We make no order on costs. I. C. Mambilima CHIEF JUSTICE C. Kajmanga SUPREME COURT JUDGE J. Chinyam a SUPREME COURT 26