Silomba v Mulonga Water and Sewerage Company (Appeal 139 of 2013) [2016] ZMSC 271 (25 April 2016)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NQ.139/2013 HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/8/184/2013 BETWEEN: CARNEL SILOMBA APPELLANT AND MULONGA WATER AND SEWERAGE COMPANY RESPONDENT CORAM: Mwanamwambwa D. C. J., Muyovwe and Wood, On 13th January, 2016 and 25th April, 2016 For the Appellant: For the Respondent: Mr. T. Chabu, of Messrs. Ellis and Company No Appearance JUDGMENT Mwanamwambwa, D. C. J., delivered the Judgment of the Court. Legislation Referred to: Order 40 rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia Cases Referred to: 1. 2. 3. 4. 5. 6. 7. 8. Ridge v Baldwin (1963) 2 ALL E. R. 66 Zambia China Mulungushi Textiles (Joint Venture) Limited v Gabriel Mwami (2004) Z. R. 244 Nkhata and Four Others v Attorney General (1966) Z. R. 124 Attorney General v Richard Jackson Phiri (1988-87) Z. R. 121 Zambia Electricity Supply Corporation v Lubasi Muyambango (2006) Z. R. 22 Zambia National Provident Fund v Chirwa (1986) Z. R. 70 Khalid Mohamed v The Attorney General (1982) Z. R. 49 Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 Collett v Van Zyl Brothers Limited (1966) Z. R. 65 9. 10. General Nursing Council of Zambia v Ing’utu Milambo Mbangweta (2008) 2 Z. R. 105 Work Referred to: 1. Paragraphs 325 & 335 of Halsbury’s Laws of England. Vol. 16,4th Edition Re-issue at Pages 338, 339 & 349. This appeal is from a Judgment of the High Court which dismissed the appellant’s claim for damages for unfair dismissal. The brief facts of this case are that the appellant was employed by the respondent as Township Supervisor. There were adverse allegations against him. The allegations were that in August, 2009, he conducted illegal water connections and obtained money from the respondent’s customer without issuing official receipts or surrendering the money to the respondent. Disciplinary proceedings were instituted by the respondent to investigate these allegations. On 29th September, 2010, he was charged with the offence of impersonating/dishonest conduct, in accordance with the respondent’s Disciplinary and Grievance Procedures Code of Conduct. The particulars of the offence were that the appellant, together with one Mr. Alfred Anandala, obtained a sum of K500.00 from Mrs. Mabie Chungu Chumya for water connection without issuing company receipts. In response to the charge, the appellant wrote an exculpatory statement. On 4th October, 2010, he appeared before the respondent’s Disciplinary Committee to defend himself. - J3 - After deliberations, the respondent found him guilty of dishonest conduct. By letter dated 5th October, 2010, the respondent dismissed him from employment. This decision unsettled him. On 6th October, 2010, the appellant exercised his right of appeal against his dismissal. By letter dated 28th October, 2010, the respondent informed him that the Appeals Committee at its sitting on 27th October, 2010, had upheld the decision of the Disciplinaiy Committee to dismiss him. This disquieted the appellant. He decided to bring an action against the respondent by writ of summons. He was seeking the following reliefs (a) Damages for unfair dismissal; (b) An order for payment of salary arrears, overtime allowances and leave pay totalling K9.718, 545-45; (c) Any other relief that the court deemed fit; (d) Interest at the current Barclays Bank lending rate from 28th October, 2010 to date of full payment; and (e) Costs. Upon hearing the evidence, the learned trial Judge found that the appellant failed to prove his allegation that he was unfairly dismissed. In making his decision, the Judge explained that unfair dismissal is attributed to lack of grounds for dismissal and/or, the failure to follow laid down procedures for dismissal or the rules of natural justice. In this case, he took the view that there were grounds for the appellant’s dismissal. He observed that Mr. Alfred Anandala - J4 - acknowledged both in his written statement and at the disciplinary hearing on 4th October, 2010, that the appellant participated in the illegal connection of water to Mr. and Mrs. Chumya’s premises. He pointed out that the appellant had great difficulty during trial, in justifying why he made a refund of KI20.00 to Mrs. Chumya. This evidence led the Judge into concluding that the appellant had received some money from Mrs. Chumya for a new water connection, but he did not apply it to the intended purpose and was later forced to refund it. On this basis, the Judge stated that he was satisfied that there were grounds upon which the respondent could dismiss the appellant. The grounds were, according to him, dishonest conduct. He further noted that that the offence of dishonest conduct in the respondent’s Disciplinary and Grievance Procedures Code of Conduct, carries a penalty of dismissal for a first breach. The trial Judge took the view that the laid down procedures in the respondent’s Disciplinary Code were followed before the appellant was dismissed. He noted that the appellant’s only grievance was that Mr. Alex Chumya was not called as a witness at the disciplinary hearing and also that Mr. Alfred Anandala was not present during the hearing of his case such that he was not given an opportunity to ask him questions, despite his request. The Judge also noted that although counsel for the appellant relied on clause 10.4 of the Disciplinary Code to support this complaint, the proviso to that clause gave the Disciplinary Committee discretion to either accept or refuse further evidence based on relevance. He observed that the appellant did not show that the Disciplinary Committee did not exercise its discretion properly in refusing to call Mr. Alex Chumya or Mr. Alfred Anandala to testify. The Judge stated that he could not see how, based on the evidence before him, the appellant’s case could have been fortified if those people had been called, since he was even represented by officials from his Trade Union. The trial Judge did not find any procedural flaws in the manner the Disciplinaiy Committee carried out its functions in this case. He came to the conclusion that the plaintiff had failed to prove the allegation of unfair dismissal. In respect of the appellant’s claims for salary arrears, overtime allowance and leave pay, the trial Judge found that some money was due, except that there was unsatisfactory evidence as to how much exactly was due. He observed that the appellant had a loan with Standard Chartered Bank, which was arranged by the respondent. In this arrangement, the respondent was under obligation to remit the appellant’s terminal dues to the Bank upon leaving employment. In this regard, the trial Judge referred this issue to the Deputy Registrar for assessment of the amounts due to the appellant, in default of agreement between the parties. He also ordered that the amount due and payable to the Bank should be in satisfaction of the appellant’s claim in respect of the arrangement between the respondent and the Bank. - J6- Lastly, the trial Judge awarded the costs of the action and those on assessment, to the respondent. The appellant was not happy with the decision of the High Court. He appealed to this Court advancing four grounds of appeal. These read as follows 1. That the learned High Court Judge erred in law and fact when he held that the appellant had failed to prove the allegations of unfair dismissal; 2. That the learned High Court Judge erred in law and fact when he found that the appellant had received some money from Mrs Chumya for a new connection but which he did not apply to the intended purpose and was later forced to refund it; 3. That the learned High Court Judge erred in law and fact when he held that there were grounds upon which the respondent could dismiss the appellant, namely, dishonest conduct; 4. That the learned High Court Judge erred in law and fact when he ordered that the respondent should have its costs of the action and assessment. Both parties filed written heads of argument based on these grounds of appeal. Counsel for the respondent argued grounds one to three, together. We will accordingly address the three together. We shall however deal with ground four separately. In support of ground one, it was submitted that the trial Judge erred when he held that the appellant had failed to prove the allegation of unfair dismissal, for two reasons. Firstly, because there was sufficient evidence on record to prove that the appellant did not obtain the sum of K500.00 from Mrs. Mabie Chumya, which allegation was the main reason for his dismissal. Secondly, because the respondent refused to call Mr. Alex Chumya who had applied for the water connection and had personal knowledge on the sum of K500.00, to testify during the appellant’s disciplinary hearing. Counsel submitted that the main question in a pure case of master and servant does not depend on whether the master has heard the servant in his own defence, it rather depends on whether the facts emerging at the trial prove a breach of contract the law. For this argument, he relied on the case of Ridge v Baldwin*11. He further submitted that if the reasons for termination of employment turn out to be false or cannot be sustained, it follows that such termination is unfair and/or wrongful. He cited the case of Zambia China Mulungushi Textiles (Joint Venture) Limited v Gabriel Mwami|2). for this proposition. The gravamen of counsel’s submission on this ground was that, there was no evidence on record to prove the allegations against the appellant, because Mrs. Mabie Chumya and Mr. Alfred Anandala were not called both at the disciplinary hearing and at trial to prove the allegations. He argued that the appellant was unfairly dismissed from employment because he did not obtain the sum of K500.00 from Mrs. Mabie Chumya. It was his further submission that the appellant asked the respondent to - J8 - call Mr. Alfred Anandala so that he could ask him questions, but he was not given that opportunity. He further contended that Mr. Alex Chumya’s letter was not considered by the respondent on appeal. It was his submission that the failure by the respondent to allow the appellant to call for all this evidence during the disciplinary hearing and on appeal, was a breach of the rules of natural justice which was a basis on which damages could be awarded for unfair dismissal. On the second and third grounds of appeal, counsel submitted that the trial Judge did not consider Mr. Alex Chumya’s evidence and based his decision on hearsay statements of Mrs. Mabie Chumya and Alfred Anandala who were not called both at the disciplinary hearing and at trial. He contended that findings of fact made by a trial court may be reversed where the Judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or, failing to take into account something he should have considered. For this proposition, counsel cited the case of Nkhata and Four Others v The Attorney General131. We were also referred to many other authorities on the same principle and we have found it unnecessary to cite them here. His submission was that the evidence of PW2, Mr. Alex Chumya, dispelled the allegation that the appellant was given the sum of K500.00. According to him, the evidence of PW2 was not challenged by the respondent. It was argued that neither the -J9- court nor the respondent had called Mrs. Mabie Chumya and Mr. Alfred Anandala to support the hearsay evidence statements. This, according to counsel, is a basis on which the findings of fact by the trial Judge should be interfered with. His submission was that since there was no evidence to prove that the appellant obtained money from Mrs. Mabie Chumya for a new water connection, there was no dishonest conduct to justify the summary dismissal of the appellant. The respondent countered grounds one, two and three. Submitting on its behalf, counsel supported the decision of the trial Judge on the three grounds. He submitted that in cases of this nature, the question for consideration is whether there were facts established to support the disciplinary measures that were taken, because any exercise of power would be regarded as bad if there is no substratum of fact to support that power. In substantiating this argument, counsel referred us to the case of Attorney General v Richard Jackson Phiri(4). It was his further argument that the duty of the court is to examine if there was necessaiy disciplinary power and if it was properly exercised. For this contention, counsel cited the case of Zambia Electricity Supply Corporation v Lubasi Muyambango(5). He pointed out that the respondent in this case, acted in accordance with its Disciplinary and Grievance Procedures Code of Conduct. He further stated out that the offence of dishonest conduct which the appellant was charged with attracted a -J10- penalty of summary dismissal for a first breach. It was counsel’s argument that since the trial Judge was satisfied that the respondent had properly exercised its disciplinary powers in accordance with the Disciplinary Code, it means that there was no breach on the part of the respondent. Counsel submitted that the respondent was right in dismissing the appellant because he was guilty. He argued that where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is so dismissed, the employee cannot have a claim for wrongful or unfair dismissal. He relied on the case of Zambia National Provident Fund v Chirwa|6) for this submission. He supported the decision of the trial Judge on the ground that the appellant had failed to prove his case. To support this argument, he cited the case of Khalid Mohamed v The Attorney General*71. He stated that there were no grounds on which the findings of fact by the trial Judge could be disturbed. Counsel argued that the factors which an appellate court should consider before reversing findings of fact by a trial court, do not obtain in this case. Among the cases cited for this argument was Nkhata and Four Others v Attorney General131. We were urged to dismiss the three grounds of appeal. We have considered the arguments by counsel for both parties on grounds one, two and three. From our perspective, the common thread that runs through these grounds of appeal is -Jll- whether the appellant was unfairly dismissed from employment by the respondent. It is trite law that unfair dismissal is not tied to common law contract-based concepts, but that it looks at the substance and fairness of a dismissal. In so doing, the reason for the dismissal should be considered. Further, where the reason for a dismissal relates to the alleged conduct of an employee as happened in this case, the law in Paragraph 335 of Halsbury’s laws of England, Vol. 16, 4th Edition Re-issue, at Page 349, states that: “335. In general, a dismissal is not unfair if it is shown by the employer to have been imposed for a reason related to the conduct of the employee and if it was reasonable in the circumstances.” Since it is common cause that the appellant was dismissed from employment on account of his alleged dishonest conduct, the critical issue which arises is whether the respondent acted reasonably when it dismissed the appellant from employment. The key consideration in cases of unfair dismissal, is the reasonableness of the employer’s decision to dismiss an employee and not the injustice to the employee. To determine the reasonableness of. a decision to dismiss an employee, regard must be had to the principles set out in Paragraph 325 of Halsbury’s laws of England, Vol. 16, 4th Edition Re-issue, at Page 338-339, which states as follows: '325. Whether employer acted reasonably. Whether an employer acted reasonably or unreasonably in treating a reason as a sufficient reason for dismissing an employee must be -J12- determined in accordance with equity and the substantial merits of the case. The key consideration for the tribunal is therefore the reasonableness or otherwise of the employer’s conduct, not the injustice to the employee. In adjudicating on the reasonableness of the employer’s conduct, an industrial tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry, to determine whether a reasonable employer could have decided to dismiss on those facts. The basis of this approach {the ‘range of reasonable responses test} is that in many cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; but, if the dismissal falls outside the band, it is unfair.” In considering whether the respondent acted reasonably when it treated the appellant’s alleged misconduct as a sufficient reason for dismissing him from employment, we have seriously considered the evidence on record. It shows that following a complaint from the family of Mr. and Mrs. Chumya on the erratic water supply to their premises, the appellant was formally charged with the offence of dishonest conduct on 29th -J13- September, 2010. In response, he wrote an exculpatory statement denying the charge. On 4th October, 2010, he appeared at a disciplinary hearing where he was given an opportunity to be heard. The minutes of the disciplinary hearing show that, he was jointly charged with Mr. Alfred Anandala who appeared before the Disciplinary Committee, before the appellant did. The minutes further show that Mr. Anandala acknowledged the participation of the appellant in the transaction involving the sum of K500.00 from Mrs. Chumya, and confirmed that the appellant got a K300 from that amount. For his part, Mr. Anandala admitted the charges against him and asked for lenience. He even wrote an exculpatory statement in which he admitted that he and the appellant had received the sum of K500.00 from the client to. buy materials for water connection, but they shared the money. We have also noted that although there is no evidence on record to show that Mrs. Mabie Chumya testified before the Disciplinary Committee, she made a statement which is on record, in which she confirmed that she gave the appellant and Mr. Anandala a sum of K500.00 for purposes of connecting water to her premises but the duo did not give her receipts. At the end of it all, the Disciplinary Committee found the appellant guilty even though he denied the allegations. A perusal of the respondent’s Disciplinary and Grievance Procedures Code -J14- of Conduct shows that the offence of dishonest conduct carries a penalty of dismissal for a first breach. The respondent accordingly dismissed the appellant from employment. On 6th October, 2010, he appealed against his dismissal but the Appeals Committee upheld the decision of the Disciplinary Committee. From this evidence, if we are to apply the Tange of reasonable responses test’ that we have discussed from Halsbury’s Laws of England above, would a reasonable employer have decided to dismiss the appellant based on the facts revealed in the evidence? In our view, the answer is in the affirmative. The circumstances of this case, and in particular the evidence of Mr. Alfred Anandala and Mrs. Chumya, places the respondent’s decision to dismiss the appellant within the band of reasonable responses which a reasonable employer would have adopted in this case. We therefore take the view that the respondent acted reasonably when it dismissed the appellant from employment. As such, we do not think that he was unfairly dismissed. In our view, there was sufficient evidence which linked him to the offence with which he was charged and this supports the disciplinary measures which the respondent took. It is also abundantly clear from the steps that were taken by the respondent in disciplining the appellant that, it went through the motions to hear him and generally, the normal disciplinary procedures were followed. -J15- From the foregoing, we do not agree with the submission by counsel for the appellant, that the allegations against his client were not proved because Mr. Alfred Anandala and Mr. and Mrs. Chumya were not called to testify at the disciplinary hearing. As we have already indicated above, there was sufficient evidence in on which a reasonable employer would have dismissed an employee in this case. The mere fact that Mr. Anandala and Mrs. Chumya did not testify in the appellant’s presence and that he did not ask them questions, does not mean that the allegations against him were not proved. In any case, he was at liberty to call Mrs. Mabie Chumya and Mr. Alfred Anandala to testify on his behalf during trial in order to prove his innocence, but he slept on his rights. This was particularly important because Mrs. Mabie Chumya and Mr. Alfred Anandala were the ones who implicated the appellant. We are in fact startled by the submission by counsel for the appellant, that neither the trial Judge nor the respondent called the two individuals to prove the allegations against the appellant. We would like to remind counsel that the onus was on the appellant to prove his case. In Wilson Masauso Zulu v Avondale Housing Project Limited*81, it was held that: "... where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed any other case where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent’s case.” -J16- We entirely agree with the trial Judge that the appellant in this case failed to prove that he was unfairly dismissed. He failed to convincingly show that he and Mr. Anandala did not receive the K500.00 from Mrs. Marble Chumya. We are not persuaded by the submission by counsel for the appellant that the evidence of Mr. Alex Chumya should have been considered. In our view, the evidence of Mr. Alex Chumya was not so relevant to this case, because he was not the one who was said to have given the appellant and Mr. Anandala the sum of K500.00 in issue. We have in fact noted that the trial Judge made an important observation that the appellant had great difficulties during trial in justifying why he made a refund of KI20.00 to Mrs. Chumya. The record confirms the Judge’s observation, since it clearly shows that the appellant gave contradictory answers when he was asked as to why he refunded the K120.00. We are therefore convinced that the trial Judge was entitled to make the finding that the appellant and Mr. Alfred Anandala, indeed obtained money from Mrs. Chumya without applying it to the intended purpose and they were later forced to refund it. We have not seen any basis on which these findings of fact can be overturned. We instead agree with the trial Judge that there were grounds, namely dishonest conduct, on which the respondent could dismiss the appellant. -J17- It follows from what we have stated above that the appellant was fairly dismissed from employment and we confirm the decision of the trial Judge to dismiss his claim for damages for unfair dismissal. Grounds one to three have no merit. We hereby dismiss them. We will now address ground four. In support of the fourth ground of appeal, counsel for the appellant submitted that the trial Judge failed to exercise his discretion judicially, when he awarded costs to the respondent, because he failed to consider the circumstances of the case and the fact that the appellant had partially succeeded. He referred us to Order 40 rule 6 of the High Court Rules, and argued that the court must not order a successful party to pay the costs of the whole suit to the unsuccessful party, even though costs are in the discretion of court. He submitted that a trial Judge should, as a matter of principle in exercise of his discretion to award costs, view the litigation as a whole and see what the substantial result was. Counsel argued that where the Judge does not do so, an appellate court is entitled to review the exercise of his discretion. For this submission, he relied on the cases of Collett v Van Zyl Brothers Limited191 and General Nursing Council of Zambia v Ing’utu Milambo Mbangweta*10). He pointed out that the trial Judge should have considered the fact that the appellant was unemployed at the time of trial and also that the respondent did not attend the entire trial of the action in the court below. He further contended that the Judge -J18- ought to have considered that the appellant partially succeeded in this matter. We were urged to review the order so that the respondent should bear the costs since the appellant partially succeeded. Counsel also urged to allow this appeal. In response, counsel for the respondent opposed ground four. He submitted that the trial Judge exercised his discretion judicially when he ordered the appellant to pay costs to the respondent. He agreed with counsel for the appellant that the award of costs is purely in the discretion of the court which should be judicially exercised. To support this argument, counsel referred to a number of authorities including the case of General Nursing Council of Zambia v Ing’utu Milambo Mbangweta( 10). His argument was that the reasoning adopted by the appellant is not in line with the principles which should be considered by the court when awarding costs. He stated that the financial status of a party is not a basis for the exercise of the court’s discretion in awarding costs. In counsel’s argument, it is not the duty of the court to either enrich or impoverish any party to a case. It was his further submission that the court usually considers the merits and demerits of case and in vexatious and frivolous litigation such as this one, the court must order busy bodies to pay costs. He stressed that his client is content with the manner in which the trial Judge exercised his discretion to -J19- award costs in this case. He urged us to dismiss this appeal with costs. We have anxiously considered the submissions made by counsel for both parties on ground four. From the outset, we must say that we entirely agree with both counsel that the award of costs in any action is in the discretion of the court. We also agree that such discretion should be exercised judicially. As a matter of principle, the court in exercising its discretion to award costs should consider all the circumstances of a particular case and view the litigation as a whole. It must then establish what the substantial result is because a successful party is ordinarily entitled to costs. See:- (a) Collett v Van Zyl Brothers Limited*9* (b) General Nursing Council of Zambia v Inq’utu Milambo Mbangweta(10) In this case, we agree with counsel for the appellant that the trial Judge did not exercise his discretion judicially when he awarded costs to the respondent. In our view, there are two striking factors that he ignored which were supposed to inform his decision to award costs in this matter. The first is that the appellant partially succeeded in respect of his claims for salary arrears, overtime allowances and leave pay. The second is that the respondent did not fully defend this matter at trial. The record shows that the respondent’s counsel abandoned this matter midstream after cross examining the appellant’s first witness. From that time, the respondent ignored these -J20- proceedings and never even appeared at the hearing of this appeal. It only re-surfaced by filing heads of argument after we gave it 21 days to do so. Quite clearly, the respondent adopted a lackadaisical approach in defending this matter and we are of the firm view that it was inappropriate to award it costs. Contrary to the decision of the trial Judge, the proper order in this case should have been to award the appellant costs, since he partially succeeded, and the respondent did not fully defend this matter. We will in the circumstances allow ground four and set aside the trial Judge's order on costs. We shall accordingly award the costs of both the trial and the assessment, to the appellant. These are to be taxed, in default of agreement. The corollary of what we have stated above is that this appeal partially succeeds in respect of ground four only and it fails in respect of grounds one to three. For these reasons, we will order the parties to bear their respective costs for this appeal.