Bwalya v Attorney-General (Appeal No. 062/2012) [2014] ZMSC 38 (20 March 2014);

IN THE SUPREME COURT OF ZAMBIA            APPEAL NO. 062/2012

HOLDEN AT LUSAKA

(Civil Jurisdiction)

BETWEEN:

MUKOBE MUSA BWALYA                                      APPELLANT                                                                                       

AND

THE ATTORNEY-GENERAL                                    RESPONDENT

CORAM: Chibomba JS, Kaoma and Hamaundu, Ag JJS

On the 9^th day of April, 2013 and 21^st March, 2014

For Appellant: In person. 

For Respondent: Ms. C. Mulenga - Assistant Senior State Advocate.

Kaoma, Ag JS, delivered the Judgment of the Court.

Cases referred to:

1. Bank of Zambia v Joseph Kasonde(1995/97) Z.R. 230.
2. Zambia Airways Corporation v Gershom Mubanga  (1990/92) Z.R. 152
3. Zambia Electricity Supply Corporation v Mukupa Mwila SCZ No. 14 of 2002.
4. The Attorney v Richard Jackson Phiri (1988/89) Z.R. 121.
5. Undi Phiri v Bank of Zambia (2007) Z.R. 186.
6. National Breweries Limited v Phillip Mwenya (2002) Z.R. 118
7. Zambia National Provident Fund v Yekweniya Mboniwa Chirwa (1986) Z.R. 70.
8. Zambia Electricity Supply Corporation v Muyambango (2006) Z.R. 22

Other Works referred to:

1.    Service Commission Disciplinary Code & Procedures for Handling Offences in the Public Service

2.   Labour Law and Industrial Relations by Arrigo & Casale, 2005

This is an appeal against the Judgment of the Industrial Relations Court dated 24^th February, 2012, dismissing the appellant’s claim for a declaration and damages for unlawful and unfair dismissal.

The case for the appellant was that he was an employee of the respondent, from 28^th August, 2007, when he was seconded from Ministry of Legal Affairs by the Public Service Commission to the Judicial Service Commission as a registry clerk on permanent and pensionable terms of employment. On 15^th April, 2008, he was served with a letter by the then Principal Resident Magistrate, Mr. Charles Kafunda (RW1), alleging that he and his colleague, Mr. Sinyangwe, had visited Mr. and Mrs. Haangala and solicited from them a sum of K8,000,000.00 (now K8,000.00). He was asked to exculpate himself. He did so by letter dated 18^th April, 2008. On 14^th May, 2008, he was put on suspension. On 7^th August, 2008, he appeared before the Disciplinary Committee of the Judiciary. This culminated into his dismissal on 16^th March, 2009, by the Judicial Service Commission. He was informed in the dismissal letter that he was entitled to accrued leave days and his pension contributions.

Being unhappy with the dismissal, he filed a complaint seeking the following reliefs:-

1.  A declaration that the dismissal was unlawful and

 unfair                                   

2.  Damages for unfair dismissal

3.  Payment of service benefits and accrued leave     

 days

4.  Costs

5.  Any other remedy the court may deem fit

The respondent’s case was that Mr. Swithin Haangala (RW3), the Managing Director of Lantana Communications Limited, received summons to an accused on 20^th February, 2008, for his company from National Pensions Scheme Authority (NAPSA). On the same day, he was approached by a son to his friend, Mr. Sinyangwe, who informed him that he had seen his company’s name at the magistrate’s court and that if he could be given K8,000,000.00, he would do something. Mr. Sinyangwe went back to Mr. Haangala’s company with a colleague where the discussion continued on the court case. The colleague who accompanied Mr. Sinyangwe merely sat and did not say anything, but they both confirmed that they were working together with Mrs. Mulengela of NAPSA. Mr. Haangala concluded that both confirmed because when Mr. Sinyangwe spoke, the colleague nodded in agreement.

Sometime in April, 2008, Mr. Kafunda received a letter of complaint from Lantana Communications that two Judiciary officers had approached them soliciting for K8,000,000.00 in relation to a matter that the company had been indicted for by NAPSA. Mr. Kafunda asked Mr. Sinyangwe about the allegation. He was informed that it was the appellant who accompanied him to Lantana Communications. Mr. Kafunda then held discussions with the two officers.

On 15^th April, 2008, Mr. Kafunda asked both officers to exculpate themselves over their dealings with the Haangalas. On 18^th April, 2008, the appellant exculpated himself. Mr. Kafunda responded by letter dated 21^st April, 2008 and charged the appellant with soliciting money from an accused. Later, Mr. Kafunda informed the Chief Administrator about the matter. He was given authority to suspend the appellant. On 7^th August, 2008, the appellant attended a disciplinary hearing. He was subsequently dismissed by the Judicial Service Commission. He was informed of the dismissal by letter.    

After considering the evidence and submissions, the learned trial Court dismissed the appellant’s complaint as he had not established his case on a balance of probabilities. It is against this judgement that the appellant now appeals. He has raised twelve grounds of appeal as follows:

1.  The trial court misdirected itself when it held that “ we have carefully examined the following clause of the respondent’s disciplinary code marked ‘MM9’ of the affidavit in support of Complaint namely clause 5(a) dealing with Basic Principle of the Code, Clause 22(a) and (b) dealing with procedure for handling ordinary offences for division II and III officers, clause 27(a) dealing with investigation of cases by Human Resource Management Officer, clause 28(b), (d)(i) and (f) dealing with hearing of disciplinary case, clause 29 dealing with the right of appeal, clause 61(i)–(f) dealing with the role Human Resource Management  Officer and trade Union representative in handling disciplinary cases and find that the respondent fully complied with the procedure requirement in handling the Complaint’s case” when in fact the disciplinary code which have been strictly followed was not followed in substance and in spirit.

2.  The lower court misdirected itself when it failed to carefully examine the respondent’s bundle of documents when it shows that the disciplinary committee reported their finding direct to the Judicial Service Commission.

3.  The lower court misdirected itself at page 31 when it stated that “complainant testified that on 15^th April 2008, he was charged with the offence of inappropriately meeting with an accused person and soliciting for money”

4.  The lower court contradicted itself at page 34 lines 18-24 when it held that there was evidence from RW3 that the appellant nodded in agreement when Mr. Sinyangwe informed him that they were working together with Ms. Mulengela of Napsa and yet on page 205 of the record RW3 testified that the gentleman who accompanied Mr. Sinyangwe to my office merely sat in my office and said nothing.

5.  The lower court erred in law and in fact to hold that the allegation against the appellant that is soliciting money is under 21(a)(v) when the said provision talks about offences of a serious nature

6.  The lower court misdirected itself on page 34 lines 3-8 when it held that its considered view was that the respondent had reasonable grounds for believing that the complainant committed the offences of inappropriately meeting an accused person and soliciting for money from him and that the respondent acted reasonably in dismissing him.

7.  The lower court misdirected itself when it held that RW3 was an accused person before court at the time the appellant and his colleague visited him when the record shows that there was no record for any cause in the style of The People v Lantana Communications

8.  The lower court erred in law and in fact to hold that the appellant was alleged to have committed several offences when in fact the appellant was only alleged of committing one offence of soliciting money from the accused

9.  The lower court misdirected itself in law when it failed to carefully examine the letter marked ‘BMM1’ at page 90 of the record and held that RW1 had the said letter in his possession when the appellant and his colleague had a meeting with RW3

10.The lower court erred in law and fact when it held that     there was a complaint before RW1 that the appellant had solicited for money from RW3.

11.The lower court erred in law for failing to make the court room environment as user friendly as possible

12.The lower court erred in law and fact to hold that “there is also evidence on record that the offences were committed by the complainant were serious offences bearing on the integrity of Judiciary

The appellant relied solely on his Heads of Argument. He argued grounds 1, 2, 3, 5 and 8 together. In brief, he submitted that had the trial court carefully examined the relevant clauses of the Service Commission Disciplinary Code & Procedures for Handling Offences in the Public Service, it would have come to only one conclusion that he was unlawfully and unfairly dismissed and thereby declared his dismissal so.

He submitted that instead the lower court made an interpretation that is not only erroneous, but illogical and contrary to all relevant principles. He contended that the testimonies of Mr. Kafunda and Ms. Petronella Mulenga (RW2) show that the disciplinary code was not followed in substance and in spirit.  He said he had no previous warnings and Mr. Kafunda was not his immediate supervisor, but overall station supervisor. He cited Bank of Zambia v Kasonde¹ and Zambia Airways Corporation v Gershom Mubanga².

He submitted further that there were contradictions in the respondent’s case.  For instance Mr. Kafunda testified that he received a complaint from Mr. Haangala while the latter refused in cross examination that he complained to Mr. Kafunda that the appellant solicited for money from him.  He said having failed to examine this contradiction; the trial court played the role of prosecutor on behalf of the respondent.

It is also the appellant’s argument that the lower court did not consider the fact that he was not charged with any offence in accordance with the disciplinary code, but was merely handed a form of disciplinary charge pursuant to clause 22(a)(iii). That “MM3” is not a charge letter, but a request for the appellant to give reasons why he should not be charged, so the trial court erred in holding that it was a charge letter when he had refuted in his testimony that he was ever charged with any offence even at the time he appeared for the disciplinary hearing.

He referred us to Zambia Electricity Supply Corporation Limited v Mukupa Mwila³ and The Attorney v Richard Jackson Phiri⁴ and urged us to carefully examine the procedure undertaken by the employer when dismissing him. He also urged us to interfere with the wrongful use of discretion by the trial court.

He argued that correspondence regarding his case was copied to other senior officers who were among those who should determine the case at its final stage which made his disciplinary case discriminatory and prejudicial. That clause 22(a)(ii) of the Code has no provision for giving copies of a charge letter to any officer, but Ms. Mulenga’s evidence is that Mr. Kafunda reported to the Chief Administrator, the responsible officer of the Judiciary, that he had been charged, so his case was predetermined.

To further prove that the respondent did not follow the disciplinary code, the appellant referred us to Ms. Mulenga’s evidence that Mr. Kafunda consulted a human resource management officer on phone. He said Mr. Kafunda instructed Ms. Mulenga on what to do instead of letting her investigate the matter  which was contrary to clause 61(1) of the disciplinary code.  

The appellant further contended that the court below acted irresponsibly by not comparing the testimony of the respondent’s witnesses with the provisions of the disciplinary code. He cited clauses 27(a) and 28(b) of the Code and said these should not be read in isolation. That he was inhibited from calling witnesses due to the lack of a charge sheet. Therefore, the court was unfair in determining the dispute.

Further argument advanced by the appellant is that clause 21(a)(v) does not relate to corrupt practices, so his dismissal by the respondent pursuant to that clause was procedurally wrong. That the appropriate clause would have been clause 18(iii), but under that clause, he ought to have been warned before punitive action was taken. He further contended that his colleague, Mr. Sinyangwe, had a more serious case involving K2,000,000.00 but he was not punished until he was involved in the present case with him. He argued that the preamble to the disciplinary code demanded fairness, just and uniformity in administering treatment.

The appellant also referred us to clause 101(a) to (c) of the General Orders and submitted that the lower court failed to distinguish and reason on these provisions; and that evidence on record shows that the respondent did not comply with the said clause. The appellant also argued grounds 4, 6, 7, 9 and 10 together. Firstly, he submitted that the trial court deliberately concocted ideas that he was present when the issue of K8,000,000.00 was mentioned to Mr. Haangala by his colleague. He said that this was against the evidence of Mr. Haangala that Mr. Sinyangwe mentioned the money issue when he was alone. 

He further argued that the lower court had no basis to hold that the respondent had reasonable grounds to believe that he had committed the offences for which he was charged. That the lower court proceeded on a wrong premise when it agreed with the respondent and did not, therefore, base its finding on evidence from Mr. Haangala that Mr. Sinyangwe was alone when he solicited for money. He said it is clear that the trial court already had a position at the time the complaint was filed and that the evidence on record is circumstantial and full of inconsistencies.

The appellant further submitted that Lantana Communications Limited was not an accused at the time he and Mr. Sinyangwe visited Mr. Haangala on 20^th February, 2008 (not 12^th March, 2008). That there was no document filed in court in relation to the case of Lantana Communications Limited.  He said Mr. Kafunda explained that a case becomes a court matter when a charge sheet containing an offence is filed in the Criminal Registry.

He further argued that there was no complaint laid before Mr. Kafunda in relation to the K8,000,000.00. That Mr. Haangala testified under cross examination that he and the service management were summoned by Mr. Kafunda; that he did not complain that he (appellant) had solicited money from him; and that the trial court should have relied on the evidence of this witness.

Grounds 11 and 12 of the appeal were also argued together. The appellant contended that the court below did not make the courtroom user friendly to enable him express himself freely. That the Judge’s voice was not helpful and he was consistently told that the Industrial Relations Court is not an appellate court. He referred us to the mission statement and the vision of the Judiciary.

He further argued that there was no basis for the court below to hold that the offences that he committed were serious offences bearing on the ethics and integrity of the Judiciary because merely escorting a friend to see the father’s friend is not such serious offence. He concluded by drawing our attention to a definition of ‘unfair dismissal’ in a book entitled Labour Law and Industrial Relations by Arrigo G. & Casale. G, 2005 at page 257. 

In response, counsel for the respondent, also relied on his Heads of Argument. He, observed that the appellant’s grounds of appeal are repetitions of the first ground, as conceded by the appellant himself, so he would treat them as one. Counsel then argued that the trial Judge was on firm ground when he held that the appellant was lawfully dismissed and that the respondent had fully complied with the procedural requirements in handling the case and dismissing the appellant.

He submitted that the record shows that the complainant went to Mr. Haangala’s work place in the company of Mr. Sinyangwe and that later; a report was made by Mr. Haangala and his wife to Mr. Kafunda that the duo was asking for K8,000,000.00 for them to favourably dispose off the case.

Counsel for the respondent further submitted that the appellant was given a right to be heard in that he was first written to, to exculpate himself which he did, and then he was put on suspension as investigations were going on. He submitted that later the appellant appeared before a disciplinary committee which found him wanting and referred their recommendation to the Judicial Service Commission which dismissed him. That the appellant was lawfully dismissed and the court below noted that it had considered the cited clauses and found that the respondent had complied with the procedural requirement in handling the case.

It is also counsel’s contention that the General Orders and Disciplinary Code that governed the appellant’s employment were used in dealing with him. That he was charged with corruption under clause 11(a) as read with section 21(a) of the Code and was dismissed pursuant to clause 21(a)(v).

Counsel referred us to Undi Phiri v Bank of Zambia⁵, National Breweries Limited v Phillip Mwenya⁶ and Zambia National Provident Fund v Chirwa⁷. He said the respondent followed the procedure and that the appellant was not entitled to a declaration for wrongful dismissal. He urged us to dismiss the appeal with costs.   

We have examined the Record of Appeal, the judgment appealed against and the submissions of both parties.  We propose to deal with the grounds of appeal in the following manner: grounds 1 and 2 together, grounds 3, 5, 8 and 12 together, and grounds 4, 6, 9 and 10 also together as these grounds are interrelated. Grounds 7 and 11 will be dealt with separately.

We shall start with grounds 1 and 2 of the appeal. It is trite that natural justice and procedural fairness demands not only that those whose interests may be affected by an act or a decision should be given an opportunity to be heard, but it also requires that a decision maker should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the arguments advanced by the parties.  

However, in Zambia National Provident Fund v Chirwa⁷ and Undi Phiri v Bank of Zambia⁵ we held that:

“Procedural rules are part of conditions of service and not statutory and that where it is not disputed that an employee has committed an offence for which the appropriate sentence is dismissal, and he is also dismissed, no injustice arises from a failure to comply with the laid down procedure in the contract of service and the employee has no claim on that ground for wrongful dismissal or a declaration that a dismissal is a nullity”.

InNational Breweries Limited v Mwenya⁶,Mambilima, JS, when delivering the judgment of the Court said at page 123:

“The court below found that the rules of natural justice had been breached in that the Acting Brewery Manager, who was not the respondent’s immediate supervisor, charged the respondent and later chaired the disciplinary hearing.  He later served as Secretary at the hearing of the appeal.  Indeed these facts show that the acting manager was both the accuser and the Judge.

In our view, however, the act of wrongdoing was established.  The respondent admitted to having been on a final warning and the offence in question is one for which the respondent could be dismissed.  As we held in the case of Zambia National Provident Fund v Y.N. Chirwa where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure, in the contract and such and employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity”.

 Further, in Attorney General v Richard Jackson Phiri⁴ and Zambia Electricity Supply Corporation Limited v Muyambango⁸, we said that: 

“It is not the function of the court to interpose itself as an appellant tribunal within the domestic disciplinary procedures to review what others have done. The duty of the court is to examine if there is necessary disciplinary power and if it was exercised properly.” 

The gist of the appellant’s arguments in the first two grounds of appeal is that the respondent did not follow procedural rules outlined in the Disciplinary Code and General Orders.  For instance, the trial court did not carefully examine the relevant clauses of the Code and/or placed an interpretation which was erroneous, illogical and contrary to all relevant principles of disciplinary code interpretation and that the court should have upheld the principles of natural justice. 

We wish to say from the outset that we will not belabour the arguments advanced by the appellant relating to the procedures employed by the respondent in the disciplinary proceedings.  We refuse to review minute details of the rules of procedure to ascertain whether or not they were followed to the letter.  The duty of the Court, as conceded by the appellant, is to inquire, from the evidence on record whether the disciplinary committee had the requisite disciplinary power to deal with him, and if so, whether the said power was properly exercised. We propose to return to this issue later on in the judgment.  Suffice to say that we are satisfied that grounds 1 and 2 have no merit.

We now move to grounds 3, 5, 8 and 12. The evidence shows that the appellant was suspended for the offence of soliciting for money from an accused. In the letter written by Mr. Kafunda on 15^th April, 2008, the appellant was put on inquiry for soliciting K8,000,000.00 from Mr. and Mrs. Haangala. In the same letter, the appellant was informed that his presence at an accused’s premises was highly inappropriate and embarrassing to the Judiciary.  He was asked to show cause, why disciplinary action should not be taken against him.  He exculpated himself on 18^th April, 2008.  The fact that the Court said the offences committed by the appellant were serious offences does not in any way affect the outcome of the case.

 Ms. Mulenga had testified that soliciting money from an accused falls under clause 21(v) of the Code and that offences falling under category E are serious offences which attract summary dismissal.  The appellant was a registry clerk in the Judiciary.  There is no doubt that he and Mr. Sinyangwe met with Mr. Haangala and his wife, when their company had be indicated by NAPSA or that they solicited for the money.

 The appellant accepted that when he and Mr. Sinyangwe approached Mr. Haangala, the court case was discussed.  Therefore, the disciplinary committee had reasonable grounds to believe that the appellant connived with his friend to take advantage of the court case and solicit for the money. Soliciting for money from an accused person, to favourably dispose of their case, is indeed a serious offence which touches on the ethics and integrity of the Judiciary whose core function is dispensation of justice.  Therefore, grounds 3, 8 and 12 must fail.

 With regard to ground 5, the appellant has urged us to find that he ought to have been disciplined under clause 18 (iii) and to set aside the punishment under clause 21(a)(v).  As we have said the appellant was dismissed under clause 21(a)(v) of the Code which relates to the punishment for offences under category ‘E’ in the Disciplinary Code. Perhaps we should also refer to section 11(a) of the Code which defines bribery and corruption as follows:

(i)           Giving or receiving or attempting to receive any bribe or inducing or attempting to induce any person to perform any corrupt act;

The evidence on record is that the appellant and his colleague solicited for K8,000,000.00 from Mr. Haangala so they could favourably dispose of the case against Lantana Communications.  Soliciting for a bribe is a corrupt act.  Therefore, the appellant’s conduct is covered by clause 11(a) of the Code.  Annexure II, which is a summary schedule of offences and sanctions, shows at page 87 of the record, that the sanction for bribery and corruption is discharge. We find that the lower court did not err by finding that the allegation against the appellant fell under clause 21 (a)(v) of the Code. The sanction under clause 18(iii) is inappropriate for the offence that the appellant was found wanting on. Ground 5 of the appeal must equally fail.

        We now move to grounds 4, 6, 9 and 10. The appellant argued that the lower court was wrong to hold that he nodded in agreement when Mr. Sinyangwe mentioned that they were acting together with Mrs. Mulengela of NAPSA.  In our view, the money may have been mentioned by Mr. Sinyangwe in the morning, but Mr. Haangala’s evidence on this point was not challenged by the appellant in cross examination as no questions in that regard were put to him.

Therefore, the court was on firm ground to draw the conclusion that the appellant nodded in agreement with Mr. Sinyangwe on the money issue. The court’s conclusion was a finding of fact supported by evidence and no appeal lies against mere findings of fact. Accordingly, ground 4 of the Appeal fails.

As regards ground 6, we find that the lower court was on firm ground to hold that the respondent had reasonable grounds for believing that the appellant had committed the offence he was charged with. There was sufficient evidence from Mr. Haangala and from his letter of complaint to the Director General, NAPSA on which the lower court properly found that the appellant had solicited for the money from him.

The appellant also admitted in his exculpatory letter and in court that he visited Lantana Communications on 20^th February, 2008 with Mr. Sinyangwe and that the case by NAPSA was discussed. The fact that the appellant may have had a plausible explanation for his conduct did not mean that the matter should have been dropped.  

We, therefore, reject the appellant’s argument that there was no evidence before the trial court that he had solicited for money from Mr. Haangala. In light of the evidence on record, we see no basis for interfering with this finding by the lower court. We therefore, dismiss ground 6 of the appeal as it lacks merit.

In the same vein, we reject the appellant’s argument on grounds 9 and 10. We find that the date that the letter marked ‘BMM1’ was written is immaterial because it is clear upon the evidence that the appellant and Mr. Sinyangwe visited Mr. Haangala on the date that the latter received the summons and they solicited for the money.

Further, the complaint against the two officers came to Mr. Kafunda’s attention in April, 2008 and he acted on it.  There was also evidence that Mr. Haangala and services management were summoned on more than one occasion by Mr. Kafunda over the same issue.  Therefore, we find that the trial court did not err in law and in fact when it held that there was a complaint before Mr. Kafunda that the appellant had solicited for money from Mr. Haangala.  We find that grounds 9 and 10 too have no merit and must fail.  

We shall now discuss ground 7.  From the evidence, we are of the firm view that the lower court did not misdirect itself by holding that Lantana Communications was an accused at the time that the appellant and Mr. Sinyangwe visited Mr. Haangala at his office. Although the evidence shows that Lantana Communications first appeared before the Court on 26^th February, 2008 as per indictment found at page 110 of the Record of Appeal, plea was only taken on 11^th March, 2008.

However, it is clear to us that the appellant visited Lantana Communications on 20^th February, 2008 when the company had been served with summons to an accused.  The summons to accused, the certificate of service and the charge at pages 133 to 135 of the record all bear the Resident Magistrate’s date stamp of 20^th February, 2008.

When Mr. Sinyangwe first visited Mr. Haangala, he told him that he had seen the name of Lantana Communications at the court.  He returned with the appellant later the same day.  It is plain that the appellant and his colleague had become aware of the matter from the records at the registry.  We are satisfied that Lantana Communications was an accused at the time the appellant visited Mr. Haangala. This ground also fails for lack of merit.

We now turn to ground 11. We have perused the notes of proceedings before the lower court. We do not find anything on the record to suggest that the appellant was in any way discriminated against, or frustrated and oppressed or inhibited from calling witnesses, or testifying or cross examining any of the respondent’s witnesses or that the courtroom environment was not made user friendly by the Judge. We find nothing irregular in the Judge advising the appellant that it was not an appellate court. There is no merit in this ground of appeal and it accordingly fails.  

  We said that we shall return to the issue of whether the disciplinary committee properly exercised its powers in relation to the appellant. We do so now. The appellant said the disciplinary committee’s exercise of power was in excess to the extent of writing him something which did not reflect the truth.  Of course, the Industrial Relations Court is not bound by rules of evidence and it is mandated to do substantial justice between the parties before it.

However, in this case, Mr. Kafunda was the Principal Resident Magistrate, and the overall supervisor of the appellant who was a registry clerk at the Magistrates’ Court Complex. It was Mr. Kafunda that commenced the disciplinary process against the appellant upon receiving a complaint over the solicitation issue, although he was not the appellant’s immediate supervisor.  Clause 2 of the Disciplinary Codedefines ‘disciplinary authority’ as:

“the Responsible Officer, the Head of Department or Supervising Officer in a Ministry, Institution, Department Division, Province or District in which a public officer isserving”.

We are satisfied that Mr. Kafunda, as the overall supervisor, at the Magistrates Court Complex qualified to be a disciplinary authority and therefore, he had the power to discipline the appellant. Mr. Kafunda cannot be faulted for having charged, suspended and referred the appellant’s case to the disciplinary committee. In fact, there was evidence by Ms. Mulenga that he was given authority by the Chief administrator to suspend the appellant.

Further, clause 48 of the Code gives mandate to a Service Commission to determine the punishment to be imposed on an accused officer. The Judicial Service Commission was the Service Commission responsible over the appellant. We find that it had the requisite disciplinary authority to dismiss the appellant upon receipt of the recommendation of the disciplinary committee.

        On the question of whether the disciplinary power was properly exercised, we are alive to the fact that in Bank of Zambia v Kasonde¹, important invoices were never produced in the disciplinary hearing or in the High Court and the allegation of dishonesty was not proven.  In Zambia Airways Corporation Limited v Mubanga², the appellant did not comply with the correct procedure in the purported dismissal of the respondent and there were a number of unsubstantiated charges levelled against him which could only have been so levelled if there were some animosity against him which was not justified by his conduct as an employee.

However, those cases are distinguishable from this case.  Although there was no charge sheet raised against the appellant, he was given the charge letter and an opportunity to exculpate himself, which he did, and he appeared before the disciplinary committee.  Since the act of wrong doing was established and he could be dismissed for corruption under the Code, and having been properly dismissed, no injustice would arise from failure by the respondent to comply in substance and spirit with disciplinary procedures.

 We are satisfied that the respondent properly exercised its disciplinary powers against the appellant. Therefore, he is not entitled to a declaration that the dismissal was unlawful and unfair or to damages for unfair dismissal.

        All in all, we find no merit in all the grounds of appeal and accordingly dismiss the appeal. We order each party to bear own costs.

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H. CHIBOMBA

SUPREME COURT JUDGE

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R. M. C. KAOMA                                                    E. M. HAMAUNDU

ACTING SUPREME COURT JUDGE                    ACTING SUPREME COURT JUDGE