jimmy david ngonya vs national insurance occp ltd 1992 tzhc 65 15 september 1992

2# Sg3 HI® %&&&& \S$m* otr& (WB®3 M * 74 && Wfc 3 jmt.lX!fB> I TG ^i «, M i*i****•******‘• ^ j - i a -I<r YorsiAS f x m rnii, ffi&KL2T03 OGI&i Wto .***#*•«• '~ w atjiLlXiU flffiypi* jfjg qfriti ie c,h applibatloii for £)S6srS of ttftticffari oaal -xmSMStifc *6 roncAro ifffco this Cooart and tt&ufc the Cofcieio* of -She Board of »S*o8tors §f <b© National Iftsuranoa Oo«?eS&Hoa# W& *0 toc:ptfi *** 6f BfcNttterB of the *oepondoiit Ce*»ea?aticto *6 *ottt6+,v;c *h© appiidant ml thereby SteAtft it to &frt *i1k t&4»»68*« Mi?* i©a*i»d <Jotta»oi fcfr tha fig&Ueatf; subt&^od *fcp| tlio apt&ifiatioii tfc* for «Ve c*A«w> r»*t*i<a*d ab&ve ^ i* « • ^ p o r t e d by ati affieVtflt of tho applicant* So tfotlt eft to state * » * -bhc oftitt t o * * of * * *as «h»t 41* sesrorfiont & 0 * > % rtittijic tho faio of -63-0 fc$?U*nirt *as ifa broadh of tho jn&oe of aatvwai ^isiiec, aat»ly «*»* 6 iU)* ** ««>«** *^d r.iid that no o«g should bo a t e c i» his <™n oauso* He olaboretfod that tho Board of Directors ln its lottor of throt-ch the General Manr.Gcr stated that the applicant had toon disniseod boacuso. •tho Borad of Directors found hin cuilty end the finding Wfc3 accordinG to tho audit report. Bit tho audit report frcn Trjapania *W-dit Corporation vae newer presented to the applicc-nt to contradict tho findings in it* applicant vae thoawfopo not aocorfcod tho opportunity to conncnt cp see tho report nor fiid he appocr fct tho p^obo Concdttoo. to* MircJcaeunGula Subnittod that ac a laccaaah 1fcnacOTf tho applicant was cjrtltlo^ to know the nature of the investigation at his hranoh. Ho c&jaU that the applicant vas t t n o t o ) oenflflpnod •Unhoard tilsioh wr^ a broach of the rules cX natural justicc. Me* l^tfricaatinuUia roforrod tlic o«*rt to tho eaetuB of pcpp^L Ctvcyxiyrrt fop.** V / ^ ^ - O (I9i$) ^JC 12D and ppcxf. of X^fytatioja V Ito_ (l91l) ;jC 179 i'^ support of his aacuncnt* • ••«/ 2 - 2 - The so cone: lidb of Ifc, M ^ w c u l a i o contomi.cn was ffcat tho Boaa?d cf Directors when dolihoratinc upon tho ea. o of tho applicant was roinr aCainct tho 2nd rulo of natural *t io o * » that the Board was a Judro in itc cim ocsuso# no »of< :rod to anrto:rfcv:.'o S2 and continued that since it is the Gcnoz Ifcsaoeojp ■who initiated the procoodin(;s and oonnissioncd Tancan:> -u£44> dcrpo: *aticn to oeasy out iiivostications at Sincidn to" • - i t *=■» wyonf for the General Hanger and tho Ifcantfraart Connit* >o to doli orate tho case of the applicant on 25^7/$1 ; tooauSOj -‘‘•O subrr.ttod, any decision of tho Loard of Direct ore taken i *ho psosonco of the General Ilanoco? 1«t in tlie absence of the pplican$ onouirtod to the fact that tho General Tbsxecps raid the Ito,.onont ComittC 2 took part in the d e l* orations of tho Board. I* ." fciakasunGula I’oferrod to tho casos of Tho ICjLrai v«, Hendon E s ppgt , Chorloy (1933) 2 ICB 6 9 2 , and Coopor v» Trilsoja (1^ 7) € KB 3 0 7 , an 3v Bpgnelo.v Ilotropolltan Bcgffl^JlQPnqUi qg, rravfco tocfc (1976) !> A II 3 1 *452* Eo submitted that tho Gonoj?al ManftGO.' and his toe,; ,voro present in the Board Mootiiv; tihloh CQoidod th> fa|^ of the applicant and that on the authorities citod ahcrtfD ho po?r,yir_ for the (jrant of tho application b y tho Coast* In reply, Ur. Ilapunda, leaned Counsel for tho respondent siabnittod that a charge was sorsnod on Jiao applioant Trhich oon-fcainod several disciplinary offcncon* The applioant was civon air cppoa?tunitjT to reply to the char^o and ho did aotually reply* Then on tl.9 Tsasiff of tho diarL "o u A »op3y the Boas;d of Directors Coanisslonod auditors to vorify tho contradictions oettroon tho <£ic*go and roply, Tho auditors suLrittcd their roport to the Board and $ho Board -ccseidorod tho char^o, reply and the auditoao* report and docidod to 4±soios tho applioant. ler. Mapunda contended that, cslthouch tho applWaat “tics no£ givon tho opportunity to reply to tho audit rcportf the afcdit Aid no% contain anything now trhich tho appliccafc was not atiarc of$ aud tho report only oonfiraod allocations In tho chargc* llapunda Bubnittod that there was thwofoSTQ 110 oontravoation t»y tb© Booajd, of the rules of natural justioo c f tho rl^ht to "bo fccaa?#* v - 3 ~ Tilth regard to the prosonoo of tho Gcnoral li .nagor in tho Board nootincj Br* liapunda subnittoc. that it was true th_<t tho General Manac'Ci’ attondod tho board moot ire of 25 7/91 ^ut that ho was only thoro as part of the nanacenont anc. 'id not tako a n y par e in tho Board* s deliberations sinoo ho is no ?• Board Iloabor. n o said that his prosonoo was only procodural bocaus ; tho oanaconont was always invitod in tho Board nicotine* o subnittod that tho docision to disniss tho applioant sunnayily wa- nado b y tho Board noribors only. Hr* liapunda, however, conoodod t oat ho was awr.ro of tho rulo that more prosonco of an interested p a * y in tho absoncc of tho other party would vitiate tho proceedings. H o said that ho had road tho authorities cited by his loarncd tri 3id and that ho was :.n ayeoouont with thon. In a further reply, Mr, Ilwakasungula said that aoc r-dinc to tho nirutos of 25/7/91 the General Manager was present together with his nGnarjenont toan when tho fato of tho applioant was bojr:; discussod but tha’; tho ninutos woro silont as to who took activo part in tho dolibor vticnS, IIo prayed that tho ninijtos bo quashed 011 tho basis that the applicant was not there, Mr, Mwakasungula also subnittod that tho letter of dismissal has 2 linbs, ono concerning tho charge and tl'.o ethos* concorning tho finding8 °f tho audit, and til s •rtidit report is tho ono whioh weighed nest on the Board in coning, fc<? tho conclusion to disniss tho applicant. Ho submitted further that if there was nothing now then tho Board should have acted on i;ho cjhargc and roply only. The Questions to bo answorod in this application are nainly 2# Those aro, (i) whether the applicant was given the opportunity to present his caso properly and (2) whether it was in order for tho General Manager to attend the Board mooting in tho absence of the applicant, Uith I’ogard to tho first question it is ny opinion that the applicant was net civon an opportunity to proscnt his oaco in full before tho 3oa.ad because !:.o was not shown tho audit report for lain to . connont on* Since the audit report fomod the basis of the docision of the Boar.’d of Directors, it was necessary to serve a copy of the roport to tl'.o applicant for his connonts. Then tho oorrxmts of tho applicant would bo triton to the Board so that the Board would then • • • * «/4 - 4 look both at the audit report and the connonts of tho applicant* ,• Tho ca,so0 of Board of Education v llioo, caid Local Government Board vy Arlidno cited abovo aro relevant in this oasc nore so Locauso they oloarly stato that the praties in tho oontrovors:1should bo given a fair opportunity to oorroot or contradict any relevant etatonont in any infcarnation obtained by a Board which is projudicial to tlioir view. Cortainly in this case the t\udit report; was prejudicial to tho viow of tho applicant* It ought tc have boon given tc hin for his coixionts, Tho Board, thorofore, coiTfe?a,vonod tho Q of natural justice nanoly tho right cf tho applicant to bo hoard* Secondly, with rogard to tho second question, the Board was again in broach of the rules of natural justice since tho Board doliboratod on the c:^e of the applicant in the presence cf tho Gonoral Ilanagor who was in tho position cf a prosecutor* 1’he caso of ^ v ^n a l c y Hotronolitan Boroivh Counoil, os rarto Hook cited by Mr. Mwakasungula is rolovant. That ca.se hold inter alia that "tho tho corxdirfcoo when it oano to its decision." It has boon started fron the bar Shat thoro is no evidence of opposing- party. • •••/ 5 / tlip above. seasons,. X th i* cpplicq^feion* j 4^C?-Sicn of tho Board of Dii'co'toi’s ijas viticHfOd by a hyoack o£ tho 37ulos cf hatural ;ju3tico , I tho3?ofopo quash sho JSgqeCIs doolsion of disnisBinc tho aspiioant, Tho applicant :s to 'bo 2&GP'££d(L atill tho onployoo of tho rosponc’ .ont oospqpa 5jaa awr* io h w o boon euob ooployoo all «u> dec . ion jo dismiss hia has boon quashed. I oonnand that tho rcspciidojii ax .fostafo applicant fpytholtli and pay hin all his salaries and ot: c.^ Ijoocwso tho applicant is ^jad 1:,cm. ajwr-ya boqjj. jjj.0 -Ctfa^Q^o of Jho rospQjidoKfe. JUDG3 Delivered to the parties. Mcf Ytooa&ffwxvlc. tor applicant ' Dec. Uapujj^r, the EOgpQudoni , ■ ■ .' v . ■ * ., . . • 1 • ■■JUDGE . ^ 1 5 ^ 2 /.. P ^ intond 4;$ ap-x.rO. su3-^> ticsxwo^amly £cn a copy of ^ho jijIj' , ** Iatoisfcion to -toikk^. ip noicxl* ■< * *'_ A. Jl'JL.TI JTJDCG3 15.?.92 i s J U K , j m ^ S 25T^