Zambia Telecommunications Company Limited v Chipowe (Appeal 207 of 2008) [2012] ZMSC 74 (26 September 2012)

J 1 IN THE SUPREME COURT OF ZAMBIA 207/2008 HOLDEN AT NDOLA (Civil Jurisdiction) B E T W E E N: Appeal No ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED APPELLANT AND AMBROSE CHIPOWE RESPONDENT Coram: Sakala, CJ., (RTD), Chirwa and Chibomba, JJS. On 2nd June, 2010 and on 27th September, 2012. For the Appellant: Mrs S. P. Luwisha, Acting Company Secretary, ZAMTEL. For the Respondent: Mr. P. Mulenga, Legal Resources Foundation (Standing in For Mr. F. Nsokolo). J U D G M E N T Chibomba, JS, delivered the Judgment of the Court. Cases and Other Materials referred to:- Halsbury’s Laws of England, Volume 17, 4 1. Attorney General vs. Marchus Achiume (1983) Z. R. 1 2. Attorney General vs. Peter Njovu (1986) Z. R. 12 3. th Edition, Paragraph 18 The appellant appeals against the Judgment of the Industrial Relations Court, at Lusaka in which the Court below held that the respondent was wrongfully dismissed from employment by the appellant. The facts of this case were that the respondent was an employee of the appellant, having been employed as a General J 2 Worker on 27th June, 2001. He was posted to Chirundu. He was however, transferred back to Lusaka when the respondent developed a skin condition which prevented him from working in the sun. The Doctors who were treating him at the University Teaching Hospital recommended that he should apply a certain skin lotion to ease the skin irritation. In accordance with the respondent, the appellant had a Medical Scheme through which they would pay for the skin lotion or reimburse him the cost. Pursuant to this arrangement, the respondent procured 15 tubes of the lotion at the cost of K1,123,000 at K86,000 per tube from “a certain lady” at the Chemist. The lady then issued him with a receipt which he submitted to the appellant for reimbursement of the purchase price of the lotion of K1,123,000. The appellant, through the Assistant Commandant, questioned the respondent about the receipt. Subsequently, upon his return from sick off, he was informed about a case hearing before the Assistant Human Resource Manager on 22nd December, 2004. The respondent attended the case hearing. He said he was asked if he knew why he was before the panel. And that he had J 3 responded in the negative as he had not received a charge. He was then told that the charge was dishonest conduct, fraud and forgery. When the respondent asked why he had not been afforded an opportunity to exculpate himself, the panel told him that it was normal. He then proceeded to explain to the panel about the procurement of the 15 tubes of lotion. When he finished, he was told to go outside. A few minutes later, he was called back and advised that he would be communicated to in due course. On 5th January 2005, he wrote to the Assistant Commandant but there was no response until 30th January, 2005 when he received a letter of transfer to the motor vehicle workshop. In February, he was called to the District Commandant’s Office at Lamya House where he was taken to Zambia Police Headquarters where he was asked to write on a piece of paper to ascertain if he had written on the receipt for the Lotion. On 17th March, 2006 a second case hearing was constituted. When the respondent asked if one of the panelists’ brother had a similar skin condition to his, he was asked to go outside. In March, 2005 he received a dismissal letter and his appeals to Senior Management failed. J 4 The respondent then filed a Complaint in the Industrial Relations Court in which he claimed that he was wrongfully dismissed from employment and that accordingly, the Court should declare his dismissal null and void and order the appellant to reinstate him. He also claimed that he should be paid damages for wrongful dismissal and any other relief the Court may deem fit, costs and interest. After hearing the evidence from both parties, the Court below came to the conclusion that the respondent was wrongfully dismissed on ground that since no identification parade was conducted to identify the sales lady who sold him the lotion and issued him with the receipt in question, the respondent was wrongfully dismissed. Dissatisfied with this decision, the appellant appealed to this Court advancing two grounds of appeal as follows:- “1. The learned Judge erred in law and in fact in holding that because there was no identification parade then the respondent was not properly dismissed. 2. The learned Judge erred in law and in fact in finding for the Complainant who did not deny the offence as charged.” J 5 The learned Counsel for the appellant, Mrs Luwisha, relied on the appellant’s Heads of Argument that were filed into Court on 19th March, 2009. In support of the first ground of appeal, it was contended that an identification parade is not mandatory in a civil matter. And that the degree of proof applied by the Court below in requiring an identification parade was too high for a civil matter as the applicable standard is on the balance of probabilities. Further, that even in more serious allegations such as fraud, crime or professional misconduct, where a higher degree of proof is required, it does not reach the criminal standard of beyond reasonable doubt. Paragraph 18 of Halsbury’s Laws of England1, was cited as authority. (However, our research showed that it is infact paragraph 19 and not 18.) It states:- “19. Standard of Proof. To succeed on any issue the party bearing the legal burden of proof must:- … In civil cases the standard of proof is satisfied on a balance of probabilities. However, even within this formula variations in subject matter or in allegations will affect the standard required; the more serious the allegations, for example fraud, crime or professional misconduct, the higher will be the required degree of proof, although it will not reach the criminal standard.” J 6 It was pointed out that in this case, the investigations carried out by the appellant were adequate and sufficiently concluded. Hence, the appellant was justified in dismissing the respondent as the receipt submitted by the respondent was compared to the duplicate at the Lusaka Chemist. And that RW2’s evidence was that the receipt submitted by the respondent did not tally with the duplicate receipt at Lusaka Chemist as the colour scheme and the Logo were different. Also that the duplicate was issued to “Ibrahim” and it had a different amount. Further, that the investigations also revealed that the Lusaka Chemist did not at all stock SPF 30 Sunscreen lotion as alluded to by RW2 in his evidence. It was argued that the respondent also had a chance to identify the sales lady who issued him with a receipt. Therefore, that the only person who could account as to where the disputed receipt came from is the respondent himself. And that the specimen handwriting did not need to be complimented by an identification parade as it complimented the appellant’s investigations. J 7 Therefore, that there was overwhelming evidence that showed that the respondent had intended to defraud the appellant and that an identification parade was not necessary to prove the respondent’s misconduct and/or to prove that the disputed receipt was not genuine or was forged. In support of the second ground of appeal, it was submitted that the evidence against the respondent was overwhelming and hence, the appellant had reasonable ground for believing that the respondent had attempted to defraud the appellant. It was pointed out that the evidence showed that:- “(a) The receipt tendered by the complainant numbered 1193 and dated 23rd October, 2004 was blue in colour of the logo, while that number 1193 and dated 3rd October, 2004 had blue and red colours in the logo. (b) Receipt No. 1193 in the sum of K1,293,000.00 presented by the respondent did not correspond with the duplicate copy of the receipt obtained from Lusaka Chemist which had a figure of K117,500.00. (c) Lusaka Chemist did not stock sunscreen SPF 30 where the respondent claims to have bought this. (d) The respondent was advised by his Doctor to purchase the lotion from Manda Hill or Cairo Chemist and not Lusaka Chemist which did not even have the lotion. (e) The prescription was for 1-2 tubes a month then go for review. It was thus irregular and highly suspicious for the respondent to have purchased J 8 over a years supply from a Chemist that did not even stock the commodity.” Therefore, that the appellant’s decision to dismiss the respondent was justified and that the respondent did not dispute the offence as charged nor did he disown the receipt he submitted for reimbursement. Hence, that the Court below erred in finding for the respondent. And that this appeal should, therefore, be upheld and the decision of the Court below should be set aside. Although the learned Counsel for the respondent, Mr. Mulenga, had sought an adjournment, this Court rejected the application and ordered that the matter be reserved for Judgment. The respondent was, however, ordered to file his Heads of Argument within a reasonable time. More than two years has since elapsed without this being done. We therefore, decided to go ahead and write the Judgment. We have seriously considered the grounds appeal filed together with the arguments advanced in the appellant’s Heads of Argument and the Judgment by the Court below. It is our considered view that this appeal raises the question whether in J 9 the circumstances of this case, the respondent was wrongfully dismissed from employment. We shall deal with both grounds of appeal together. It is undisputed that the respondent submitted the receipt in question to his employers with the intent of being reimbursed the sum of K1,123,000 being the purchase price of the skin lotion prescribed to him by his Doctors. The appellant questioned the authenticity of this receipt. Investigations were carried out which revealed that the receipt may not have been genuine. The outcome of the investigations showed that Lusaka Chemist did not infact stock this type of lotion in its shop. The receipt submitted by the respondent was also at variance with the duplicates at Lusaka Chemist. The respondent was charged and he appeared before the Assistant Human Resource Manager. The respondent is also on record that he had refused to receive the Charge Letter when it was delivered to his residence. Therefore, his claim that he was not given an opportunity to prepare his defence cannot stand. In our view, the appellant had reasonable cause to charge the respondent and to dismiss him for dishonest conduct. J 10 On the issue of the Sales Lady who is alleged to have sold the lotion and issued the receipt in question to the respondent, it is our considered view that only the respondent knows this lady. So, it was up to the respondent to identify the lady and/or call her to testify either in the Court below or before the panel that heard his case. In view of this clear evidence, we are satisfied that it was a misdirection on the part of the Court below to find and rule in favour of the respondent as doing so was contrary to the evidence on record. We are also satisfied that had the Court below properly directed itself, it could not have decided as it did. In the case of Attorney General vs. Marcus Achiume2 and in the case of Attorney General vs. Peter Njovu3, we made it clear that the appellate Court will not reverse the findings of fact made by a trial Court unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial Court acting correctly can reasonably make. J 11 In the current case, it is patently clear that the Court below did not properly evaluate the evidence on record nor did it have a proper view of the evidence before it. This, therefore, entitles us to reverse the findings made by the Court below as the evidence before it clearly showed that the respondent was not wrongfully dismissed as the appellant had properly investigated the authenticity of the receipt in question before dismissing the respondent. The evidence showed that the respondent had by submitting that receipt, attempted to defraud his employers. We also agree with Mrs. Luwisha’s submission that since this was a civil matter, an identification parade was not required. We, therefore, have no doubt that the Court below misdirected itself in holding that because there was no identification parade, then the respondent was not properly dismissed. Both grounds of appeal having succeeded, this appeal has merit. We, accordingly, set aside the Judgment of the Court below in its entirety. J 12 In the circumstances of this case, we order that each party bears own costs. ………..………………………. E. L. SAKALA CHIEF JUSTICE (RTD) ………..……………………….. D. K. CHIRWA SUPREME COURT JUDGE ……………………………….. H. CHIBOMBA SUPREME COURT JUDGE