Mtonga v Examination Council of Zambia (Appeal 24 of 2012) [2015] ZMSC 172 (30 October 2015)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 024/2012 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: YOTAM MTONGA APPELLANT AND EXAMINATIONS COUNCIL OF ZAMBIA RESPONDENT Coram: Mwanamwambwa, DCJ, Muyovwe and Malila, JJS on the 3rd March, 2015 and 30th October, 2015 For the Appellant: Mr. J. M. Chimembe of Messrs. JMC & Associates For the Respondent: Messrs. Shamwana & Company MUYOVWE, JS, delivered the Judgment of the Court JUDGMENT Cases referred to: Zambia National Provident Fund vs. Chirwa (1986) Z. R. 70 1. 2. Bwalya Matafwali vs. Coates Brothers Zambia Limited Appeal No. 005/2013 3. NFC Africa Mining Plc vs. Techro Zambia Limited (2009) Z. R. 236 4. Mubita Namabunga vs. Motor Holdings (Z) Limited (1988-89) Z. R. 188 Felon Chowa vs. ZESCO Limited Appeal No. 84/2012 5. Legislation referred to: 1. Rule 58 (2) of the Supreme Court Rules, Cap 25 of the Laws of Zambia 2. Rule 19 of the Supreme Court Rules, Cap 25 of the Laws of Zambia Jl This is an appeal against the judgment of the Industrial Relations Court, sitting at Lusaka which dismissed the appellant’s claims. The appellant had claimed for, inter alia, damages for wrongful dismissal; compensation for loss of employment; reinstatement; retirement in the interest of both parties; payment of all accrued benefits and costs. The appellant was employed by the respondent on 10th December, 1999 as a plumber. On 8th June, 2008, the appellant’s supervisor Mr. Solami who was Principal Administration Officer wrote to the appellant on an allegation that he had abused the respondent’s medical scheme. It was alleged that the appellant took his neighbor, Ms. Changwe, to Hilltop Hospital for tooth extraction using his Promed Medical card on the pretext that she was his spouse. This was in breach of the respondent’s regulations and the appellant was subsequently charged with the offence of dishonest conduct. In response to the charge, the appellant submitted two exculpatory statements. In one of his statements he admitted having taken Ms. Changwe to Hilltop Hospital as alleged. J2 Later, the appellant alleged that the confession was involuntarily extracted from him by Mr. Solami, his supervisor. The appellant was subsequently dismissed from the respondent’s employment on 10th July, 2009 after exhausting the appeal process. After analysing the evidence, the lower court found that the respondent was in breach of its disciplinary code on account of the fact that the appellant was not given an opportunity to cross­ examine Mr. Solami before the Appeals Committee to ensure a fair hearing as required by the respondent’s policy in their disciplinary code. However, the lower court took the view that although the respondent breached their disciplinary code in dealing with the appellant’s appeal, no injustice arose from the failure to comply with the laid down procedures in the disciplinary code as the appellant committed a dismissible offence. The lower court relied on the case of Zambia National Provident Fund vs. Chirwa1. The lower court found that the appellant was appropriately charged as the offence that he was charged with related to dishonest conduct. The court below accepted the respondent’s evidence that the appellant had indeed taken Ms. Changwe who posed as Mrs. J3 Florence Mtonga, for medical treatment at Hilltop Hospital on the material date. Although the appellant denied this allegation, the lower court found that the respondent had reasonable grounds for believing that the appellant committed the offence as charged and that it acted reasonably in dismissing him. The court found that there was no evidence that the appellant made the confession statement under duress and found that the appellant had not established his case on a balance of probabilities and dismissed his complaint. The appellant has now come before this court advancing four grounds of appeal namely: GROUND ONE The court below misdirected itself when at p.27 lines 5 to 8 of the record of appeal, it held that “we are of the view that the Respondent had reasonable grounds for believing that the Complainant committed the offence as charged and had acted reasonably in dismissing him for the same”, when the source of the charge was based on a rumour circulated by the Appellant’s former supervisor, late G. K. Solami which rumour was attributed to CW2, Ms. Belinda Couvaras Kamuwanga which she denied both in her oral evidence in court and her written statement dated the 9th June, 2010. The originator or source of the charge of dishonest conduct remains a mystery. Further, this finding by the lower court is against the evidence adduced in court by RW3, Mr. Leonard Chipampwe Kabaso, and the Administrator at Hilltop Hospital. J4 The lower court totally ignored the evidence of this witness which was the necessary ingredient in establishing whether or not the appellant was guilty of the offence of dishonest conduct. GROUND TWO The lower court contradicted itself at page 25 lines 13 to 19 of the record of appeal, by holding that “however we are of the view that the Complainant should have been allowed to cross-examine the late Mr. Solami (the Accuser) on his submissions to the Appeals Committee to ensure fair hearing as required by the Respondent’s policy in their disciplinary code. On this point we find that the Respondent was in breach of its code.” However the court held at page 28 lines 20 to 24 of the record of appeal that “Notwithstanding our earlier finding that the Respondent were in breach of their code in dealing with the Complainant’s appeal case we are of the view that since the Complainant committed a dismissible offence and was dismissed, no injustice arose from the failure to comply with the laid down procedures in the respondent’s Code.” The genuineness or falsity of the alleged confession statements and the claim by the Appellant that he wrote the said statements under duress would have been established had the Appellant been allowed to cross-examine late Mr. Solami (his accuser). GROUND THREE The lower court erred in law and fact by its failure to consider the Appellant’s evidence at page 140 lines 20 to 23 and at page 141 line 1 of the record of appeal regarding paragraph 17 (c) of the Examinations Council of Zambia Conditions of Service which categorically stipulates that “a dismissal must be preceded by full investigation and the legal aspects of J5 this course of action must be considered by management before final decision is taken”. Contrary to this very important provision of the Respondent’s Conditions of Service, the Respondent’s witness, Mbangu Libuwe, the then Principal Human Resources Officer testified at page 153 line 19 of the record of appeal that “It was not my role to interview witnesses in this matter” and yet Ms. Belinda C. Kamuwanga who is alleged to have originated the disciplinary action and Ms. Chilufya Changwe, the alleged beneficiary from the Appellant’s promed medical card were key witnesses in this matter, but were not interviewed. (Ground three was abandoned) GROUND FOUR The lower court misdirected itself at page 28 lines 10 to 16 of the record of appeal, by holding that “furthermore, the fact that the Complainant did not lead any evidence at all that he took his wife, Florence Mtonga, to Hilltop Hospital on the said date, as confirmed by the Medical record which he signed, we are inclined and do believe what the Complainant stated in his confession memoranda that he took a woman, namely Chilufya Changwe, to the hospital for tooth extraction on the said date and that such woman was pretending to be his wife.” The evidence by Leonard C. Kapeso RW3 at page 161 lines 24 to 28 of the record of appeal show that it was the Appellant’s wife, Florence Mtonga who was attended to at Hilltop Hospital on 11 May, 2009 and not Chilufya Changwe. Mr. Chimembe learned Counsel for the appellant withdrew the third ground of appeal. J6 In their heads of argument, Counsel for the respondent have raised a preliminary issue relating to the construction of the grounds of appeal laid out in the memorandum of appeal. They cited Rule 58 (2) of the Supreme Court Rules, Cap 25 of the Laws of Zambia which they argued is couched in mandatory terms. They relied on the case of Bwalya Matafwali vs. Coates Brothers Zambia Limited2 in which this court cited the case of NFC Africa Mining Plc vs. Techro Zambia Limited3 where we said: “... Rules of the Court are intended to assist in the proper and orderly administration of justice. And as such, they must be strictly followed.” It was observed that in this appeal, the appellant advanced four lengthy grounds which raised more than one issue under each and that the appellant included legal arguments instead of restricting them to points of law or fact. It was submitted that the grounds were defective and must be dismissed. In response to the preliminary issue, Mr. Chimembe, learned Counsel for the appellant, submitted that the issue raised fell short of the provisions of Rule 19 of the Supreme Court Rules, Cap 25 of the Laws of Zambia which states that: J7 “19. If a respondent intends to take a preliminary objection to any appeal he shall, if practicable, give reasonable notice thereof to the Court and to the other parties to the appeal, and if such notice be not given the Court may refuse to entertain the objection or may adjourn the hearing and make such order as the Court may seem just. The provisions of this rule shall apply mutatis mutandis to a cross-appeal.” Counsel submitted that the memorandum of appeal was filed on 2nd March, 2012 and that the respondent delayed raising its objection at its own peril. According to Mr. Chimembe, the four grounds of appeal are closely intertwined in order to capture the desired result. He argued that the appeal is properly before this court and it, therefore, deserved to be heard. At the hearing of this appeal, we took Counsel to task on the format which he adopted in framing the grounds of appeal contained in the memorandum of appeal. It was pointed out to him that the grounds of appeal did not conform to the rules and he graciously conceded to this. We have considered the submissions by learned Counsel for the parties on the preliminary issue. J8 The gist of learned Counsel for the respondent’s objection is that the memorandum of appeal offends against Rule 58 (2), which is couched in mandatory terms and that, therefore, the appeal should be dismissed. Mr. Chimembe learned Counsel for the appellant relied heavily on Rule 19 and maintained that the objection was raised too late, although he conceded he was at fault. Rule 58 (2) provides as follows: (2) The memorandum of appeal shall be substantially in Form CIV/3 of the Third Schedule and shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively, (emphasis ours) A perusal of the appellant’s grounds of appeal contained in the memorandum of appeal reveals that the same contains arguments or submissions and Mr. Chimembe is aware of this, although he chose to take refuge in Rule 19. We are alive to Rule 19 which in our view is not mandatory and gives the court the discretion to entertain an objection. However, we agree with Counsel for the respondent that Rule 58 (2) is J9 couched in mandatory terms. And so although Counsel for the respondent did not comply with Rule 19, it does not follow that we should, therefore, allow the appellant to proceed with the appeal based on the memorandum of appeal containing glaring defects which go to the heart of the appeal. In Mubita Namabunga vs. Motor Holdings (Z) Limited4, we held that: “We do not accept that the use of the word “shall” automatically makes the rule mandatory. In all such cases, it is for the court to construe the intention and effect of the rule and have regard to that construction, whether or not such rule is to be regarded mandatory or regulatory.” And, in this case our view is that Rule 58 (2) is mandatory. Certainly, it is unacceptable and an invitation to confusion if we were to allow the present grounds of appeal to stand because they are “mixed-up grounds.” Mixed-up because arguments which were supposed to find themselves in the heads of argument constitute part of the grounds of appeal. There must be order in litigation. J10 As we stated in our recent decision in the case of Felon Chowa vs. ZESCO Limited5, each appellant has an option to take measures to remedy the default before the hearing of the appeal. Grounds of appeal go to the core of the appeal and if they are defective, the appeal falls apart. In the circumstances, we find that this appeal is incompetent and we dismiss it and we make no order as to costs since it emanated from the Industrial Relations Court. DEPUTY CHIEF JUSTICE E. N. C. MUYOVWE SUPREME COURT JUDGE M. MALILA SUPREME COURT JUDGE jii