Chilila v Zambia National Commercial Bank Ltd (Appeal 162 of 1999) [2000] ZMSC 160 (16 May 2000)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No.162 OF 1999 HOLDEN AT LUSAKA (CIVIL JURISDICTION) B E T W E E N: TEDDY CHILI LA AND APPELLANT ZAMBIA NATIONAL COMMERCIAL BANK LTD RESPONDENT Coram: Sakala, Muzyamba and Chibesakunda, JJS 6th April and 16th May 2000 For the Appellant: In person For the Respondent: No appearance JUDGMENT Muzyamba, J. S. delivered the judgment of the court. This is an appeal against a dismissal of the appellant's complaint for re­ reinstatement and damages. The brief facts of this matter are that the appellant was employed by the respondent at its Obote Branch in Kitwe as a Clerk. His duties involved clearing cheques. Sometime in Dece’mber 1993 he gave his cheque leaf No.00313494 to his work mate, Danny Chipili knowing that the latter's account had been closed. Using the cheque leaf Mr. Chipili bought goods worthy K16,500 from Kitwe Emporium. When the cheque came for clearance, the appellant, on more than two occasions diverted the cheque to other banks to avoid detection of the fraud. He also drew a cheque for K10,000on his own account knowing very well that he had no money in the account and the cheque was returned marked 'Refer to Drawer'. This according to the respondent amounted to financial indiscipline. The appellant was then charged with dishonest conduct. He exculpated himself but his explanation was unacceptable and on 19th April 1994 his services were terminated. On 23rd August 1996 he filed a complaint J2 in the Industrial Relations Court alleging that he had been discriminated against on the ground of his sex because Mrs. Kamanga, his Supervisor was merely warned. ' In dismissing the complaint the court below said at page J6: "On the evidence before us, we find that while it is true that Mrs. Martha Kamanga, the complainant's supervisor was merely warned for signing cheque Number 00313494 issued by Mr. Chipili, while the complainant's services were terminated, we find that the termination was justifiable because according to the evidence adduced by the respondent's witnesses before this court, it is the degree of the deception or dishonesty on the complainant's part of diverting the cheque to other banks in order to prevent detection of the cheque, and by which act the respondent bank suffered loss by incurring unnecessary bank charges for the transfer. Further, the respondent's witnesses both testified that the penalty for the offence of dishonesty under the Disciplinary Code is summary dismissal, so that there was no way that he could be given the same treatment as Mrs. Martha Kamanga whose only offence was negligence in that she omitted to check the clearing statement, the individual cheque against the tally on the machine properly before counter-signing. In the circumstances, therefore, we find that there was no discrimination on the basis of sex as alleged because although the complainant and his supervisor, Mrs. Martha Kamanga both signed the cheque, they were each found guilty of different offences, that is dishonesty and negligence and which offences attracted different penalties." The appellant filed 3 grounds of appeal which relate to findings of fact and argued that he was unfairly treated because the offence he was charged with fell under misconduct and did not warrant a dismissal. We have considered the evidence on record, the Judgment appealed against and the appellant's written submissions and oral arguments before us. On the evidence on record we are satisfied that the court below came to the right conclusions that the appellant was not discriminated against and that his employment was properly terminated. And as we have said above the appeal is against findings of fact only. Section 97 of the Industrial and Labour Relations Act, Cap 269 provides as follows: J3 "97 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." As no appeal lies against findings of fact and no point of law is involved the appeal must fail. We dismiss it. Since the respondent did not appear we make no order for costs. E. L. SAKALA SUPREME COURT JUDGE SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE