Zambia Revenue Authority v Kasungami (SCZ 39 of 1999; SCZ Judgement 10 of 1999) [2000] ZMSC 103 (12 January 2000)

SCZ Judgment No. 39/99 IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.10/99 HOLDEN AT LUSAKA. (Civil Jurisdiction) P.311. ZAMBIA REVENUE AUTHORITY VS APPELLANT GODFREY KASUNGAMI RESPONDENT Coram: Sakala, Chirwa and Muzyamba JJS 9th November, 1999 and 12th January, 2000. For the Appellant, Ms. Hamanyanga, Legal Counsel. For the Respondent, Mrs V. Sondashi of Sondashi and Company. JUDGMENT Sakala Js delivered the Judgment of the Court. Cases referred to: 1. 2. Subramanian Vs Public Prosecutor(1965) 1. W. L. R. 965. Dunlop Zambia limited V. Griffith Katenga SCZ Appeal No. 52 of 1995. This is an appeal against a judgment of the High Court at Kitwe declaring the respondent’s summary dismissal from employment with the appellant as null and void and ordering that the respondent be deemed to have been re-instated and to be paid his salary arrears from the date of the purported dismissal to the date of judgment and further ordering that the respondent be deemed to have been retrenched at the instance of the appellant with a package in accordance with the appellant’s retrenchment package. This is another case from Kitwe High Court in which the learned trial judge reproduced the whole endorsement on the writ of summons; reproduced the whole statement of claim, the whole defence and the verbatim evidence. As we observed in another appeal originating from the same court; it is not always necessary or desirable to reproduce the pleadings in a case in very great detail unless the circumstances so warrant. The brief facts not indispute in this matter were that the respondent was employed by the appellant as a Driver. On the day in question the respondent’s supervisor : J2 : P.312 instructed him to collect a vehicle that had been taken for repair in a garage at Kitwe and thereafter to proceed to Kipushi in the Democratic Republic of Congo. The respondent collected the vehicle. There was evidence that it had not been repaired. After collecting the vehicle the respondent commenced his journey to Kipushi. Instead of going direct to Kipushi, the respondent deviated to Lubumbashi where he was involved in an accident. The vehicle was beyond repair. It was common cause that while in hospital in Lubumbashi the respondent was visited by the Zambian Consul who subsequently reported the accident to the respondent’s employer. Following upon the accident the appellant was charged with three disciplinary offences namely; Gross negligence of duty resulting in damage io authority property; Misuse of authority property and committing an offence while still under a final disciplinary warning. The respondent was summarily dismissed after the disciplinary hearing. He unsuccessfully appealed against his summary dismissal. He took out a writ of summons claiming damages for wrongful dismissal. He never claimed for reinstatement in both the writ and the statement of claim. In his oral evidence the respondent testified that the vehicle he collected was not mechanically fit and that the accident was not as a result of negligence on his part but as a result of a mechanical fault. He explained that on his way to Kipushi he had punctures and because it was late, he decided to spend a night in Lubumbashi. It was while looking for a place in Lubumbashi that he was involved in the accident. A witness from the garage where the vehicle had been taken testified on behalf of the respondent. In his evidence he explained that the vehicle was not road-worthy and that during the time the vehicle was in the garage no repairs were done to it. According to the witness the vehicle was released against his will. The evidence on behalf of the appellant was that, when inquiries were made with the garage about the vehicle, they were informed that the vehicle was ready for collection. Hence the plaintiff was instructed to go and collect the vehicle. According to the evidence on behalf of the appellant the respondent informed his supervisor that the owner of the garage had advised that he should not drive fast. The appellant produced P.313 a report from the Zambian Consul-General as part of the appellant’s evidence on the accident. The learned trial judge considered the evidence and identified the issue for determination as to whether the respondent’s dismissal was wrongful and without justification. The court held that the contents of the report were hearsay because the Counsul-General was not called as a witness. The court found that the cause of the accident was a mechanical fault for which the respondent could not be held responsible. The court held that the appellant did not justify the respondent’s dismissal. On the disciplinary charges the court concluded that since the cause of the accident was a mechanical fault, the respondent could not be said to have caused damage to the appellant’s vehicle and since the vehicle was defective and taking into account the punctures no reasonable person could have placed a blame on the respondent for spending the night in Lubumbashi. The court finally held that on the facts of the case, the respondent was not negligent and did not misuse the vehicle. The third disciplinary' charge fell away on the basis that the two other offences had not been proved. In arguing the appeal before us Ms. Hamanyanga advanced two grounds; namely that the court below erred in fact and law by regarding certain evidence by the appellant as hearsay and that the court did not exercise its discretion properly by ordering the re­ instatement and the subsequent retrenchment of the respondent. The ground relating to reinstatement and retrenchment was in our view well taken. The respondent’s case was never pleaded and presented on the basis of claiming reinstatement. He was claiming damages for wrongful dismissal. We agree that the learned trial judge did not exercise his discretion properly and that he misdirected himself in law by ordering re-instatement and subsequent retrenchment of the respondent. In our view, the learned trial judge’s order for re-instatement was based on a fiction. We uphold this ground of appeal. The case for the respondent as pleaded was that the accident was as a result of a mechanical fault. While we accept that a mechanical fault is generally a defence, this :J4: P.314. always depends on the facts of each case. The appellant travelled from Kitwe to Chingola. From Chingola he was instructed to go to Kipushi. He deviated to Lubumbashi. The accident happened in Lubumbashi not in Kipushi or on the way to Kipushi. The Disciplinary Committee considered the disciplinary charges agaisnt the respondent. The Committee did not accept the reason for the respondent’s deviation and found him guilty and summarily dismissed him. He unsuccessfully appealed against the summary dismissal. The contention on behalf of the appellant was that the evidence of the report should not have been dismissed as hearsay because, the introduction of the report was intended to show that it was the basis upon which the Disciplinary Committee arrived at its decision. Counsel submitted that the production of the report was an exception to the rule against hearsay. For this submission counsel relied on the authority of Subramanian V. Public Prosecutor (1) where the court said : “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.” Counsel also relied on the unreported decision of this court in the case of Dunlop Zambia Limited and Griffith Katenga (2) where this court pointed out that the trial court erred in dismissing the evidence of casual workers before the Disciplinary Committee as hearsay as the purpose for which the evidence was adduced was to show that it was taken into account in arriving at its decision. In that case this court went further by holding that it was not the function of a trial court to rehear the proceedings of a disciplinary body set up in a code. The issue for determination of the trial court in the instant appeal was whether the summary dismissal was wrongful. On the facts the accident happened in a place where the respondent was not instructed to go. Assuming, without deciding, that the : J5 : P.315. accident was caused by a mechanical fault, the respondent was in Lubumbashi, in our view, on a frolic of his own. This was misuse of authority property. It would have been a different situation had the accident happened on the way to or in Kipushi. We have also considered the arguments of the respondent. We are satisfied that on both grounds this appeal must succeed. The appeal is allowed with costs to be taxed in default of agreement. E. L. Sakala, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE, 'tt . ivi. inuAyamua, SUPREME COURT JUDGE.