Elton H. Nkhata v Niecos Overseas (Z) Ltd (Appeal 143 of 2004) [2007] ZMSC 132 (5 September 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 143/2004 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ELTON H. NKHATA Appellant AND NIECOS OVERSEAS (Z) LIMITED Respondent Coram: Sakala, CJ, Mumba and Chitengi, JSS on 6lh March, 2007 and 5th September, 2007. For the Appellant : In Person For the Respondent: Not Present JUDGMENT Chitengi, JS, delivered the Judgment of the Court. Case referred to: - 1. Zulu and Avondale Housing Project Limited (1982) ZR172 This is an appeal against the decision of the Industrial Relations Court sitting at Ndola dismissing the Appellant’s complaint alleging that he was victimized by his employer and dismissed for something he had not done. Reduced to a narrow compass for the purpose of this appeal, the facts are very brief indeed. The Appellant, who was appearing pro se both in this court and in the court below, -J2- was employed by the Respondent as a supervisor receiving bay and stock room. Sometime on 5th December, 1990, a customer bought three television sets and one video recorder with a cheque for £1,500 (sterling pounds), a cheque which turned out to be dud as it was a stolen cheque. According to the Appellant, sometime between April and June 1990, one Mr. Mhango, the shop manager, took three television sets and one video recorder to the Appellant which Mr, Mhango said he had retrieved from the customer. The Appellant put the three television sets and video recorder in the warehouse without writing a goods received voucher because the goods came from a customer. In August 1990, a stocktaking was done and it revealed a shortage of the three television sets and one video recorder, Mr. Mhango then told the Appellant to issue a goods received invoice for the three television sets and one video recorder which he had brought to him. The Appellant did not know anything about the charge of falsifying company documents for which he was dismissed. According to the Appellant, his dismissal was as a result of hatred, victimization etc because he caught some senior managers stealing on some occasions. But according to the evidence given on behalf of the Respondent by its Human Resources Manager, Mr. Adrian Kansungu, the three television sets and one video recorder were not recovered. To cover up the shortage the Appellant -J3- issued a goods received invoice purporting that the goods had been retrieved from the customer. As a result of this, the Appellant and Mr. Mhango, the shop manager, were summarily dismissed for dishonest conduct in accordance with clause 7 of the Respondent’s Disciplinary Code. On this evidence, the court below found that the Appellant issued the ‘goods received’ invoice to cover up the shortage and mislead the management as to the actual stock position. For this reason the court below found that the Respondent was justified to dismiss the Appellant and that the Appellant’s complaint had no merit and dismissed it. When we heard the appeal the Respondent was not present. The Appellant, as we have said, appeared in person. The Appellant wholly relied on his filed heads of written argument and made no oral submissions. The Appellant advanced four grounds of appeal. The first ground of appeal is that the Industrial Relations Court erred in law and fact by upholding that the Appellant was lawfully dismissed. -J4- The second ground of appeal is that the Industrial Relations Court erred in not considering that we were working under the orders of the Manager who was there to instruct (sic). Grounds three and four which deal with theft of company property have no bearing on the judgment of the court below. The court below did not in its judgment deal with any theft. Indeed the evidence is that some rogue bought the television sets and video recorder using a stolen cheque. The Appellant devoted his written heads of argument denouncing his workmates, some of whom he accused of having been stealing from the Respondent, and the problems he is now facing as a result of his dismissal. The tone of the Appellant’s written heads of argument reveals that the Appellant is a very bitter man. His bitterness probably explains his failure to focus to the facts of this case. We propose to deal with grounds one and two together. We have considered these grounds of appeal and the judgment appealed against. This appeal is basically against findings of fact. The court below found that the Appellant issued goods received invoice to cover up the shortage and that the Respondent was justified when it dismissed the Appellant for that act. Acting according to Clause 7 of the Respondent’s -J5- Disciplinary Code dishonest conduct attracts summary dismissal. It has not been argued, but we have considered whether the findings of fact made by the court below are ones which we can interfere with. As we said in Zulu Vs Avondale Housing Project Limited!1*, an appellate Court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either per verse or made in the absence of any relevant evidence or upon a misapprehension of the facts. In this case, we are satisfied that the court below properly evaluated the evidence and none of the grounds upon which we can reverse a finding of fact made by the trial court exists. The trial court having found that the Appellant issued the goods received invoice to cover up the shortage, the Respondent made out the dismissible offence of dishonest conduct against the Appellant. The complaint that the court below did not consider that the appellant was acting under instructions of his shop manager is neither here nor there. If there were such instructions, they were unlawful instructions which cannot absolve the Appellant of blame. Indeed, the shop manager was also summarily dismissed for the same act. -16- Similarly, the allegations of hatred and theft by some managers are irrelevant to this appeal. On the evidence we are satisfied that none of the accused managers issued the goods received invoice in question in order to falsely implicate the Appellant. The goods received invoice was issued by the Appellant himself. All in all, we are satisfied that the Appellant was properly dismissed. There is no merit in this appeal and we dismiss it. We make no order as to costs. E. L. SAKALA CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE PETER t^llENGI SUPREME COURT JUDGE