Olusegun Adedayo Yerokun v Zambian Open University Limited (2018/HP/A023) (6 February 2025) – ZambiaLII

IN THE IDGH COURT FOR Z -:Ll.1'.LJI<'~ AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) flf.CliSTIW l X 500tl>7, L. IN THE MATTER OF: SECTION 33 OF THE IDGHER EDUCATION ACT NO. 4 OF 2013 BETWEEN OLUSEGUN ADEDAYO YEROKUN APPELLANT AND ZAMBIAN OPEN UNIVERSITY LIMITED RESPONDENT Before the Honourable Lady Justice C. M. Lombe in Open Court For the Appellant: Mr. N Ngandu ofM essrs Shamwana and Company. For the Respondent: Mrs E. Chiyenge ofM essrs Mbalashi C. Associates. JUDGMENT CASES REFERRED TO: 1. Indo Zambia Bank Limited v Mushaukwa Muhanga (2009) ZR 266 at 277 2. Power Equipment Limited v Goldtronics Limited and Barclays Bank Zambia Pk 1998/HP/1964 (unreported) 3. Krige and Another v Christian Council of Zambia (1975) ZR 152 4. Aristogerasimos Vangelatos and Vasiliki Vangelatos v Metro Investment Limited and King Quality Meat Products Limited (Selected Judgment No. 35 of2016) S. Zinka v The Attorney-General (1990 - 1992) ZR 73 6. Van Boxtel v Gerardus Adrians van Boxtel v Rosalyn Mary· Kearney (a minor by Charles Kearney her father and next friend) (1987) ZR 63 7. John Paul Mwila Kasengele and Others v Zambia National Commercial Bank (2000) ZR 72 8. Chansa Ng'onga v Alfred H. Knight (Z) Limited (Selected Judgment No. 26 of2019) 9. Ridge v Baldwin [1964] AC 40. 10. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002] IDCA 11. 11. Shamwana and Others v. The People (1985) ZR 41. 12.Zambia National Provident Fund v Chirwa (1986) ZR 70 13. ANZ Grindlays Bank Limited v Kaona (1995-1997) ZR 85 14. New Plast Industries Limited v Commissioner of Lands and Another (2001) ZR 51 15. B.P. Zambia Plc v Zambia Competition Commission, Total Aviation Export Limited (SCZ Appeal No. 22 of 2011) 16. Chisanga Mushili Mulenga vs ZESCO Limited [2015] ZMHC 116 17. Antonio Ve ntrigilia and Emmanuela Ventrigilia v Finsbury Investments Ltd (SCZ Appeal No. 2 of2019) 18. Morgan Naik v Simon David Burges and 5 others (CAZ Appeal No. 45/2000) 19. Pius Kasolo v ZCCM Investment Holding (CAZ Appeal No. 185/2022) 20. Bupe and Another v Zambia National Commercial Bank (SCZ Appeal No. 27 of 2000)(unreported) 21 Chilanga Cement v Kasote Singongo (SCZ Judgment 13 of 2009) J2 I Page LEGISLATION REFERRED TO: 1. Higher Education Act, No. 4 of2013 2. Companies Act No. 10 of2017 3. University Act No. 11 of 1999 (Repealed) 4. Interpretations and General Provisions Act Chapter 2 of the Laws of Zambia 5. High Court (Appeals) (General) Rules, Statutory Instrument No. 6 of 6. High Court Rules, Chapter 27 of the Laws of Zambia OTHER MATERIALS REFERRED TO: 1. Black's Law Dictionary 9th Edition 2. Concise Oxford English Dictionary (12th Edition, Stevenson and Waite - Oxford University Press) 1. INTRODUCTION 1.1 This is an Appeal by the Appellant against the decision of the Board of Directors of the Zambian Open University Limited (t he Board), dated 12th June 2018. The appeal was heard and reserved for Judgment on 3rd November 2022. 2. THE RELIEFS SOUGHT 2.1 The Appellant sought the following reliefs: 1. Payment ofs alary arrears inclusive ofa pplicable allowances from 8fh June 2018, to the date oft he purported dismissal, up to 3P March 2021. J3 I Pa ge !. ' 11. Payment of all contractual benefits that accrued to him as at 3 JS' March 2021. 111. Payment of3 6 months' salary in damages for unfair and wrongful dismissal. 1v. Interest. 3. BACKGROUND AND DECISION OF THE COUNCIL (BOARD OF DIRECTORS) 3 .1 The genesis of this Appeal is that on 31st March 201 7, the Appellant was appointed as Vice Chancellor for the Respondent University, for 4 years effective pt April 2017. During his tenure, the Appellant submitted a proposal for the construction of pre fabricated classrooms by ABACUS Space Solutions for the sum of K 2,400,000.00. The proposal was approved by the Respondent's Board of Directors led by Professor Jotham Moomba at the time. 3 .2 A contract was entered into between ABACUS Space Solutions and the Respondent (represented by the Appellant as Vice Chancellor) for the sum of US$466,404.37. Thereafter, on 18th September 201 7, the Respondent's Board of Directors issued a memorandum alleging irregularities in the award of the contract to ABACUS Space Solutions. 3. 3 On 10th October 2017, at a Board meeting, the Appellant explained the alleged irregularities surrounding the a ward of the contract. Based on the Appellant's explanation, the Board found the Appellant guilty of negligence and abuse of authority and proceeded to issue the Appellant with a final warning letter. J4 I Page 3.4 The Appellant requested the Board to withdraw the final warning letter as he was neither charged nor afforded an opportunity to be heard. By a letter dated 18th March 2018, the Board withdrew the final warning letter but charged the Appellant with incompetence and abuse of office. The Appellant refused to exculpate himself alleging inter alia bias on the part of the Chairperson. The Board proceeded to find the Appellant guilty as per the charge and dismissed him from employment. 4. GROUNDS OF APPEAL 4.1 Aggrieved by the decision of the Board, the Appellant launched this Appeal advancing (6) six grounds of appeal couched as follows: 4.2 GROUND 1 4.2.1 That the Respondent's Board of Directors erred in law and in fact when it charged the Appellant with the offences of incompetence and abuse of office, after having earlier found the Appellant guilty of the offence of negligence and abuse of authority on the same subject matter. 4.3 GROUND2 4. 3 .1 That the Respondent's Board of Directors erred in law and fact when it charged the Appellant with the offence of abuse of office, which offence was non-existent in the Respondent's Code of Conduct. JS I Page 4.4 GROUND3 4.4.1 That the Respondent's Board of Directors erred in law and fact when it proceeded to hear and determine the disciplinary case against the Appellant as Vice Chancellor, contrary to the provisions of the law. 4.5 GROUND4 4.5.1 That the Respondent's Board of Directors erred in law and fact when they failed to observe the rules of natural justice. 4.6 GROUNDS 4. 6 .1 That the Respondent's Board of Directors erred in law and fact by ceding authority to the Respondent's shareholders and allowing the said shareholders to participate in the disciplinary proceedings contrary to the provisions of the law. 4.7 GROUND6 4. 7 .1 That the Respondent's Board of Directors erred in law and fact when they resolved to dismiss the Appellant, after finding the Appellant guilty of the offence of incompetence and alleged offence of abuse of office, which was not dismissible. 5. HEADS OF ARGUMENT 5.1 APPELLANT'S HEADS OF ARGUMENTS 5.1.1 In support of the first ground of appeal, it was stated that the Record of Appeal revealed that the Respondent's Shareholders sent a memorandum to the Board alleging irregularities in the award of a contract to ABACUS Space Solutions for the construction of prefabricated classrooms. J6 I Page 5.1.2 It was further stated that the Appellant, as Vice-Chancellor, explained the alleged irregularities after which, the Board found the Appellant guilty of negligence and abuse of authority. That they issued the Appellant a final warning letter dated 12th October 2017. 5.1.3 It was also stated that the Appellant protested against the final warning letter, resulting in the Board not only withdrawing the final warning letter but charging the Appellant for the offences of incompetence and abuse of office. 5.1.4 The Appellant argued that whilst it was accepted that his actions as Vice-Chancellor were subject to scrutiny, it did not mean that the Board was free to discipline him in a way that was oppressive. That under the Respondent's Code of Conduct the disciplinary process was subject to the rules of natural justice. 5.1.5 It was submitted that it was unfair for the Board to discipline the Appellant a second time when they had previously done so on the same set of facts. 5.1.6 It was further submitted that by charging the Appellant after withdrawing the final warning letter, the Appellant was a victim of "double jeopardy" as he had been disciplined twice for the same alleged wrongdoing. It was stated that the withdrawal of the final warning letter served as an absolute bar to proceeding with fresh disciplinary proceedings against the I J7 Page Appellant. That by doing so the Respondent failed in its duty to act fairly towards the Appellant. 5.1.7 Concerning ground two, it was argued that the charge letter dated 18th March 2018 charged the Appellant with the offence of misconduct by abuse of office, (offence number l 7(iv) in the Code of Conduct). It was stated that a perusal of the Code of Conduct revealed that there was no offence number 17(iv) or reference to an offence, of "abuse of office." 5.1.8 It was submitted that the Appellant could not be charged with the offence of abuse of office. It was pointed out that whilst the Code of Conduct contained offence number 18(iv) described as "abuse of offence", the same could not be construed to be "abuse of office." 5.1.9 It was argued that words ought to be given their natural and ordinary meaning unless there was an ambiguity. Reference was made to the case of lndo Zambia Bank Limited v Mushaukwa Muhanga < 1>, regarding the interpretation of legally binding instruments. 5 .1.10 It was stated that the literal interpretation would not aid this Court in any way concerning what the offence "abuse of offence" actually entailed. The Court was therefore invited to consider the contra proferentum rule, a doctrine which called for ambiguities in interpreting documents to be construed unfavourably to the drafter. Solace was found in the cases of Power Equipment Limited v Goldtronics Limited and JS I Page Barclays Bank Zambia Pie <2> and the Indo Zambia Bank v Mushaukwa Muhanga 1>. < 5 .1.11 It was submitted that the Code of Conduct which formed part of the Conditions of Service was not prepared by the Appellant but availed to him by the Respondent therefore should be construed in his favour. It was submitted that the offence of "abuse of offence" cannot be taken to mean "abuse of office." 5.1.12Tuming to ground three, it was submitted that as at the Appellant's date of appointment, the Higher Education Act was in effect. It was pointed out that as per this Court's Ruling dated 31st March 2022, the Board were the de facto Council of the Respondent, with its functions being prescribed under the Higher Education Act. (notable of which is section 25 of the Higher Education Act) 5 .1.13 It was stated that the power to dismiss an employee was not absolute. It was further stated that the Board were to act in accordance with the Higher Education Act and under paragraph 22 of the third schedule to the Higher Education Act. That was mandatory for the Respondent, to establish a Staff Tribunal. 5 .1.14 It was argued that although the power to dismiss rested with the Board, they were in essence carrying into effect the decision of a Staff Tribunal, which decision the Board was bound by. 5.1.15 It was submitted that the Record of Appeal would show that the Board did not refer the matter to a Staff Tribunal, as J9 I Page required by law. Further that the decision to dismiss the Appellant by the Board was arrived at without a hearing and determination made by the Staff Tribunal. 5 .1.16 It was stated that the Record of Appeal revealed that the Board contemplated the withdrawal of the final warning letter dated 12th October 2017 but resolved not to withdraw the letter as this would result in the setting up of a Tribunal. 5 .1.17 It was argued that the Board of Directors were aware that a Tribunal and not itself, could proceed to hear and determine any grievance raised against the Appellant. Reliance was placed on the case of Krige and Another v Christian Council of Zambia < 3>, in that there can be no estoppel against statute therefore the Board should have referred the Appellant's disciplinary case to a Tribunal. 5.1.18It was submitted that the Board had no jurisdiction to hear and determine the Appellant's disciplinary case as a result the decision to dismiss the Appellant was tainted with illegality. The Court's attention was drawn to the case of Aristogerasimos Vangelatos and Vasiliki V angelatos v Metro Investment Limited and King Quality Meat Products Limited on the need for jurisdiction to be acquired before judgment ® could be given. 5 .1.19 It was argued that if the Court was disinclined to accept that the Staff Tribunal was the appropriate adjudicative body to hear JlO I Pa g e and determine the fate of the Appellant, then the Board was not clothed with the requisite jurisdiction. 5.1.20The Court's attention was drawn to the Respondent's Articles of Association, which were adopted in 2007 before the enactment of the Higher Education Act. It was stated that the Article which specifically provided for the removal of a Vice Chancellor under Article 30(xi). (see page 35 of the Record of Appeal). It was stated that although the Articles of Association empowered the Board to remove the Appellant as Vice Chancellor similar to Section 25 of the Higher Education Act, the said Articles were silent on the procedure to be followed. 5.1.21 It was pointed out that upon consideration of the Conditions of Service, in particular, Appendix A of the Code of Conduct (see pages 67-69 of the Record of Appeal) the Court would observe that there was a procedure specified for the removal or dismissal of a Vice-Chancellor. 5.1.22It was submitted that although the Articles of Association and the Conditions of Service were silent as to who should hear and determine the Appellant's disciplinary case, nothing gave the Respondent's Board of Directors the right to proceed in the manner that it did. 5.1.23In relation to ground four, it was argued that the Board were not the appropriate body to hear and determine the disciplinary case against the Appellant, and in the event that it was then it heard the case against the Appellant in total disregard of the IP J11 age rules of natural justice. Reference was made to the case of Zinka v The Attorney-Genera < 5 > on natural justice. 5. l.24It was stated that the Respondent's Shareholders sent a Memorandum to the Board Chairperson alleging irregularities in the award of a contract to ABACUS Space Solutions for the construction of prefabricated classrooms. It was pointed out that the shareholders who signed the Memorandum, were Professor Dickson Mwansa, Mr Jonam Mwansa and Dr Salome Katwishi. It was stated that the said individuals also formed part of the Board. It was further stated that the said Board was later led by Professor Dickson Mwansa as Chairperson. 5 .1.25 It was submitted that the dismissal of the Appellant was orchestrated by the Board Chairperson, acting together with other shareholders, namely Mr Jonam Mwansa and Dr Salome Katiwishi, who collectively initially raised a complaint of financial irregularities to the Board. 5 .1.26 It was stated that upon being dissatisfied with how the then Board handled the Appellant's disciplinary matter, the above named directors reopened the disciplinary matter when they were appointed to the Board and dismissed the Appellant. It was submitted that this made them judges in their own cause, contrary to the rules of natural justice. 5.l.27The Appellant submitted that the perceived bias against him was raised during the Board meeting held on 26th January 2018 J12 I Pa ge where several directors failed to declare interest and took part in the deliberations which decided the Appellant's fate. 5.1.28It was stated that the Appellant was not going to be subjected to a fair hearing, as there was already prejudice in the minds of the named Board Directors, who had previously concluded that the Appellant had misconducted himself, regardless of the withdrawal of the final warning letter dated 12th October 2017. 5.1.29Under ground five it was submitted that prior to the enactment of the Companies Act No. 10 of 2017, the Courts were of the considered view that shareholders could override the decisions of directors as per the case of Van Boxtel v Gerardus Adrians van Boxtel v Rosalyn Mary Kearney (a minor by Charles Kearney her father and next friend) < 6>. This principle was underscored in the case of John Paul Mwila Kasengele and Others v Zambia National Commercial Bank < 7>. 5.1.30It was submitted that the above position of the law was inapplicable to the Respondent as the Respondent's Council, (Board of Directors) was vested with the jurisdiction to dismiss the Appellant subject to the hearing and determination of the disciplinary case by a Tribunal, as prescribed by the Higher Education Act. 5 .1. 31 It was further submitted that in exercising its power to dismiss the Appellant, the Board was not bound by the direction of the Respondent's Shareholders, more so that the Articles of I J13 Pa g e Association were explicit insofar as the discipline of a Vice Chancellor was concerned. 5 .1. 32 Lastly, under ground six it was stated that under the offence of incompetence, an employee could be dismissed from employment on condition that the employee had committed a second breach. It was further stated that there was no evidence to suggest that the Appellant had previously been charged with the offence of incompetence and accordingly found guilty. 5 .1. 33 It was stated that the alleged offence of abuse of office, was non-existent in the Respondent's Code of Conduct therefore the Respondent could not dismiss the Appellant for a non-existant offence. It was further stated that even assuming that the alleged offence of Abuse of Office was erroneously referenced in the Respondent's Revised Conditions of Service as "Abuse of Offence"," the same could not have been a dismissible offence as there was no punishment prescribed in the Conditions of Service for the offence of "Abuse of Offence." 5. l.34It was submitted that the Appellant's dismissal was in breach of his contract of employment therefore he was entitled to be compensated with damages arising from his unfair and wrongful dismissal. Refuge was found in the case of Chansa Ng'onga v Alfred H. Knight (Z) Limited regarding the <&> normal measure of damages m wrongful/unlawful dismissal/ termination cases. J14 I Page 5 .1. 35 It was stated that in this case there were compelling reasons to award damages beyond the normal notice period, as the Appellant's dismissal was characterized by malice on the part of the Respondent. 5.1.36The Appellant prayed that this Appeal be determined in his favour with costs. It was reiterated that the Appellant's dismissal was not only in defiance of the rules of natural justice but also unfair and wrongful leaving the relationship between the Appellant and the Respondent broken down. It was noted that an order of reinstatement would not be tenable owing to the fact that the Appellant's contract of employment came to an end on 3pt March 2021. 5.2 RESPONDENT'S HEADS OF ARGUMENTS 5.2.1 In response to the Appellant's Heads of Arguments, under ground one, it was stated that it was not in dispute that the Appellant protested against the final warning letter through his lawyers. In tum the Board withdrew the final warning letter and instead charged the Appellant with the offences of incompetence and abuse of office. It was submitted that the Appellant was asked to exculpate himself. It was stated that the Respondent was at a loss as to how it erred when it withdrew the final warning letter. 5.2.2 It was further stated that the withdrawal of the final warning letter did not close the case, but altered the decision earlier JlS I Pa g e arrived at by the Board therefore the Appellant was still accountable for his alleged conduct. 5.2.3 The Respondent submitted that some labour laws and other laws of general application may make detailed provisions for the conduct of disciplinary proceedings in the workplace. It was argued that the Higher Education Act was an example of a sectoral or special law not of general application that had provisions regulating the conduct of the affairs of institutions in the affected sector. It was stated that the Higher Education Act provided for procedures for specified staff which did not include a Vice Chancellor of a private higher education institution. 5 .2.4 It was submitted that Section 29 of the Higher Education Act, which was said to be a re-enactment of Section 45 of the University Act No. 11 of 1999 (As repealed), emphasised that the conduct of the affairs of the Respondent, including disciplinary proceedings pertaining to a Vice Chancellor, were governed by Articles of Association and subordinate documents such as the Financial Regulations and Conditions of Service. 5.2.5 It was submitted that there was no prohibition relating to the review of the Board's decision whether in the Higher Education Act or any other law or the Respondent's Articles of Association or the Conditions of Service. Therefore in the absence of a statutory prohibition or a self-imposed restriction, the common law principles of res judicata and functus officio, by which judicial and quasi-judicial adjudicating bodies were J16 I Page barred from revisiting their decisions in their discharge of a public function, did not apply to this case. 5.2.6 It was further submitted that the Respondent was not a public body but a private higher education institution conducting internal proceedings, that could revisit any of its decisions as it saw fit. It was stated that the position that administrative decisions could be revisited to correct errors had been held and upheld by appellate Courts. Reference was made to the English case of Ridge v Baldwin < 9 > a nd the Australian case of Minister for Immigration and Multicultural Affairs v Bhardwaj <10>. 5.2.7 In relation to double jeopardy, it was submitted that on review of the case, it was open to the Board to formulate charges on the same facts or substantially the same facts and in doing so to prefer charges that were in the Code of.Conduct. It was stated that this was the case especially so where the Appellant's complaint was that he had not been charged and given an opportunity to defend himself and that he was found guilty of offences that were not in the Code of Conduct. 5.2.8 It was submitted that additional facts relating to the case against the Appellant had emerged, following further inquiries and searches conducted at the National Council for Construction and the Patents and Companies Registration Agency. It was stated that the case against the Appellant was reconsidered on the full facts and circumstances (including new J17 I Pag e facts), therefore the assertion that the Appellant was subjected to double jeopardy was misconceived. 5.2.9 It was submitted that in some jurisdictions, the doctrine of double jeopardy applied to both criminal and civil procedures by constitutional provision or other legislation. It was stated that the doctrine provided for a person not to be subjected to a multiplicity of proceedings and penalties for the same or substantially the same alleged offence. 5.2.10 It was further submitted that there was no basis for the unsubstantiated proposition that the doctrine of double jeopardy applied to labour law in our jurisdiction, let alone to facts and circumstances in the present case. The Respondent referred to various South African cases, on the doctrine of double jeopardy. 5.2.11 In addressing ground two, it was stated that the Appellant's reference to the basic rule of interpretation of statutes and contra proferemtem doctrine could not aid his case as none of the Appellant's arguments were applicable in terms of the law as well as the context of the facts of this case and the circumstances of the Respondent's employment. 5.2.12It was stated that the Appellant was not employed as a general worker or low-level staff in the Respondent institution. It was stated that the Appellant, as the Vice Chancellor, was a well educated professor and the academic and administrative head of the Respondent institution . It was further stated that having J18 I Page such a qualification and position, it would be reasonable to assume that the Appellant read and understood the Articles of Association and the Conditions of Service. 5.2.13 The Respondent argued that there was no evidence before the Court pointing to the Appellant having had a problem with, or questioning, the interpretation and application of the offence that appeared in the Code of Conduct as "abuse of offence". It was stated that even when the Appellant was charged with the offence, the Appellant did not question the meaning of the said alleged offence or allege any ambiguity which has only now been raised in this appeal seeking the Court to hold in his favour. 5.2.14 The Respondent submitted that it was recognized that the offence that appeared in the Disciplinary Code as "abuse of offence,, should have read "abuse of office". It was further submitted that this was evidenced by several Court records, to which this Court was invited to take judicial notice of as per the case of Shamwana and Others v The People <11>. 5.2.15 It was further argued that in the interpretation of statutes and documents, a provision is said to be "ambiguous" when it is capable of more than one meaning or is so obscure that it cannot be reasonably assigned a meaning. Reference was made to Black's Law Dictionaey 9th Edition c1 > on the definition of the word ambiguity. I J19 Page 5.2.16It was stated that in the present case, the purported offence of "abuse of offence" could not be said to be capable of being understood differently or as having any interpretation other than the offence of "abuse of office" in the mind of a reasonable person living in our modem society, especially the Appellant. 5 .2.17 The Court was further invited to take judicial notice of the fact that the offence of abuse of office was a common subject of discussion in our society and universally. It was stated that a reasonable person could conclude that the phrase "abuse of offence" was a typographical error as it was intended to read "abuse of office". Further that it had been erroneously placed. It was further stated that there was no ambiguity but mere typographical errors which were capable of and were in fact, addressed administratively. 5.2.18 The Respondent stated that the Appellant had a duty during his tenure to construe the rules and regulations of the Respondent institution. Further, that given the Appellant's level of education and position held the Appellant should be precluded from benefitting from his omission in not addressing the obvious error, given his level of education and responsibilities placed upon him as the academic and administrative head of the Respondent institution. It was argued that the Appellant could not be a beneficiary of his own wrong. 5 .2.19 It was further argued, in the alternative, that should the Court be inclined to find that indeed the offence of "abuse of office" I J20 Page did not exist in the Terms and Conditions of Service and the Disciplinary Code, then under common law the Appellant was amenable to be, and was properly, charged with the offence, as the particulars thereof constituted gross misconduct. 5.2.20Tuming to ground three it was argued that the fact that the Respondent did not establish a tribunal as required had no bearing on the Appellant's disciplinary proceedings as there was no provision in the Act or the Respondent's statutes requiring the removal of a Vice-Chancellor of the Respondent institution to be subjected to proceedings of a Tribunal. 5.2.21 The Respondent submitted that the Higher Education Act did not call for the removal of a Vice-Chancellor and Deputy Chancellor, whether of a public or private higher education institution, to be subjected to a Tribunal set up under the Higher Education Act. 5.2.22It was stated that while the Higher Education Act did provide for a different procedure for the removal of a Vice-Chancellor and Deputy-Chancellor of a public higher education institution, the same was different with a Vice-Chancellor and Deputy Chancellor of a private higher education institution as the removal of a Vice-Chancellor and Deputy-Chancellor of a private higher education institution was left to the Council of each private higher education institution, in accordance with its governing rules. J21 I Page 5.2.23 In direct response to the Appellant's Argument, that the Respondent's Board of Directors in their refusal to withdraw the final warning letter, would result in the setting up of a Tribunal, which would not be in the best interest of the institution, the Respondent argued that the same response was based on an erroneous interpretation of the Higher Education Act, on which the Board laboured under the belief that removal of all senior members of staff, including the Vice-Chancellor, was to be conducted by a Tribunal. 5.2.24 The Respondent maintained that the Appellant's Argument that there could be no estoppel against statute and the cited cases thereof in support were misconceived and misplaced in this case. 5.2.25It was stated that the Appellant's stance that there was a procedure specified for the removal of a Vice-Chancellor in Appendix A of the Conditions of Service could not be gleaned from the Record of Appeal as such the Respondent maintained that the rules and conditions of service of the Respondent institution, left it open to the Board to determine the procedure for the conduct of proceedings for the removal of a Vice Chancellor. 5.2.26In relation to ground four, it was argued that the Board observed both rules of natural justice - audi alteram partem and the nemo judex in causa sua - given the circumstances of the institution and the position of the Appellant in the institution. J22 I Page 5.2.27It was submitted that the reconsideration of the case was prompted by the Appellant's persistent letters seeking withdrawal of a final warning letter issued to him on account, inter alia, that he had not been charged and given an opportunity to defend himself. 5.2.28It was further submitted that the Board decided to withdraw the warning letter and instead charge the Appellant with the offences that the Board considered to be in the Code of Conduct therefore the allegation that the Board Chairperson and the other two Directors on their own decided to reopen the case was contrary to the evidence on the record. 5.2.29It was also submitted that the Appellant was of the view that seven of the ten Board Directors were disqualified from hearing and determining his case. It was stated that according to the Respondent, the net effect of the manner of the appointment of the Board could have disqualified it from hearing and determining the Appellant's case. It was argued that this position would result in the Board abdicating its statutory duty of disciplining the Appellant per section 25 (2) (d) of the Higher Education Act, and Article 30 (xi) of the Articles of Association. Reference was also made to the statutory duty vested in the Board as supported by the Interpretation and General Provisions Act. 5 .2.30 It was submitted that the Appellant was invited to exculpate himself but opted to respond through his lawyers. That in his J23 I Page response the Appellant alleged that the same Board that had charged him would sit in judgment over his case and in essence negotiated an exit from the institution. Further that he alleged that the environment was hostile. 5.2.31 It was stated that the Board proceeded to conclude the proceedings, having warned the Appellant that it was open to the Board to proceed and conclude the case. It was further stated that the circumstances, as the evidence on the record would show, were that the Appellant used every excuse he could to sabotage the disciplinary proceedings to avoid being held accountable. 5.2.32 The Respondent argued that the law on employment at the time of this case was the Employment Act which had no statutory requirement for an employee to be given an opportunity to be heard before being dismissed. 5.2.33It was submitted that the Courts upheld the view that where it is not in dispute that an employee had committed an offence for which the appropriate punishment was a dismissal and was dismissed, no injustice arose from the failure to comply with the laid down procedure in the contract. Reliance was placed on the case of Zambia National Provident Fund v Chirwa < 12>. 5.2.34In addressing ground five, the Respondent denied that its shareholders participated in the disciplinary proceedings and that its Board ceded its authority to the shareholders. It was stated that the Board was not an island, and existed as part of I J24 Page the larger university community that it served. The Board, as council of the Respondent institution, was enjoined in mandatory terms by section 25 (1) of the Higher Education Act to at all times act in the best interest of the institution. 5.2.35 It was further stated that given the functions of the Board, it could not be insulated from all other stakeholders. The record would also show that the Board was oblivious to what was transpiring until the Board Chairperson received a memorandum from shareholders. 5.2.36The Respondent invited the Court to take judicial notice of the fact that in any workplace or institution, the format of how its branches, divisions, or units related could not be prescribed and controlled to the last detail. 5.2.37It was submitted that the shareholders' memorandum was written in good faith, prompted by genuine concerns based on real happenings at the institution under the management of the Appellant. Further that there was no evidence to suggest that the changes to the Board were designed to fit into the Appellants on-going disciplinary proceedings. 5.2.38It was submitted that the shareholders were of the view that the disciplinary proceedings should be referred to a Tribunal. It was stated that this was based on a misunderstanding of the provisions of the Higher Education Act, to which the Board chaired by Professor Jo tham Moomba simply decided m a Board meeting without referring the matter to a Tribunal. I J25 Page 5.2.39lt was submitted that the Appellant's reference to cases m which the Supreme Court held under the now repealed Companies Act, which was in force at the material time, that shareholders could override decisions of directors had no relevance to the case at hand as the statute subject of this case was the Higher Education Act. 5.2.40It was further submitted that in no way could it be said that the Board ceded its authority to the shareholders. Reference was made to Black's Law Dictionary 9th Edition < 1 > on the definition to cede as to surrender, relinquish, assign or grant. 5.2.41 Lastly, under ground six, it was stated that in respect of all the offences in the Code of Conduct, the penalties indicated were not cast in concrete as the Board could impose a less or more severe punishment as the circumstances of a case warranted. It was further stated that the offence of abuse of office penalty was not prescribed, leaving it open to the Board to determine as it saw fit. 5.2.42lt was stated that when scrutinised the Code of Conduct made it clear that removal from office on disciplinary grounds, which included misconduct such as incompetence in the discharge of one's duties or other misconduct constituting failure or inability to perform duties of an office, may be effected without rigidity. 5.2.43It was submitted that a proper interpretation of the Code of Conduct, Article 30 (xi) of the Articles of Association which stated that a Vice-Chancellor could be removed from office for I J26 Pag e incompetence or other conduct that was incompatible with the office of Vice Chancellor made no qualifications. 5.2.44 The Respondent pointed out that at common law, in the case of serious misconduct, the list of which was not exhaustive, an employee could be dismissed summarily, if a serious misconduct constituting incompetence and abuse of office had been demonstrated as outlined by the Respondent in relation to the Appellant in the Record of Appeal. 5.2.45It was submitted that nowhere was it indicated that a member of staff dismissed ought to remain on suspension for the duration of the appeal as the same would be absurd to expect an employee to remain suspended and on the payroll for the duration of an appeal which could go on for years. 5.2.46The Respondent submitted that on appeal, the Appellant ought to have been aware that they were in essence seeking reinstatement. That where this relief was not feasible, having asserted that the relationship between the parties had broken down, other relief should have been sought such as wrongful or unfair dismissal in the Industrial Relations Court. 5.2.47It was argued that there was no other jurisdiction conferred on the Court, contrary to what was purported by the Appellant in the award of damages and interest as the notice of appeal filed had no provision for reliefs and therefore the Appellant was not entitled to any. I J27 Page 5 .2.48 It was also stated that no authority had been advanced in terms of the law for the kind of compensation package that the Appellant was seeking. 5.3 APPELLANT'S HEADS OF ARGUMENTS IN REPLY 5.3.1 The Appellants filed a Reply to the Respondent's response. In reply, under ground one it was submitted that the withdrawal of the final warning letter closed the whole matter against the Appellant. It was stated that the Board could not review their decision, finding the Appellant guilty of negligence and abuse of authority, only to later charge the Appellant for incompetence and the alleged offence of abuse of office. 5.3.2 The Appellant submitted that the review was oppressive. It was stated that this was underscored by the fact that the fresh charges were only laid by the Board following the appointment to the Board of the shareholders. It was further stated that they not only signed the memorandum citing the irregularities but also expressed their displeasure with the action taken by the Board. It was submitted that these actions were deemed by the Appellant to not be good faith. 5.3.3 In relation to ground three, it was submitted that the Respondent asserted that the offence of "abuse of offence" in the code of conduct could not be capable of being understood differently or as having any interpretation other than that of "abuse of office" of which the Respondent asked the Court to take judicial notice of other Court cases. It was stated that the I J28 Page Court was not being called upon to pronounce itself on the interpretation of "abuse of offence" to mean "abuse of office" or the existence of the offence of "abuse of office" in the Respondent's Code of Conduct. 5.3.4 It was stated that the assertion that the bonam partem rule of interpretation should be applied against the Appellant as he was precluded from benefiting from his omission in not addressing the obvious error of "abuse of offence" in the Code of Conduct did not apply to this matter, as there was no evidence led to show that the Appellant failed to interpret the term "abuse of offence". 5.3.5 The Appellant submitted that the Respondent confirmed that the Conditions of Service which included the Code of Conduct, were in use from 2010, before the Appellant was appointed Vice-Chancellor in 2017 therefore there was no way that the Appellant could have prepared the Conditions of Service. In that regard the contra proferentum rule was applicable. 5.3.6 It argued that the Appellant was amenable to be, and was therefore, not properly charged with the offence, as the particulars constituted gross misconduct. It was stated that the Respondent, just like the Appellant, was bound by the Code of Conduct, which had a contractual effect. As a result, the Respondent could not proceed to charge the Appellant outside of the Code of Conduct, which if it did, would amount to breach of contract. J29 I Pa ge 5.3. 7 In relation to ground three, it was stated the Appellant was not questioning the power of the Board to remove the Appellant from office but rather whether a case leading to the removal was to be heard and determined by the Board. It was argued that the Higher Education Act did not limit the scope of the Staff Tribunal to exclude the Vice Chancellor, as suggested by the Respondent. It was argued that if a Staff Tribunal had no authority to hear any case against a Vice Chancellor, the law would have explicitly stated so. It was maintained that it was in order for a Staff Tribunal to hear any disciplinary case against the Appellant and not the Board. It was submitted that the Board was supposed to implement the decision of the Staff Tribunal pursuant to paragraph 22(7) of the Third Schedule of the Higher Education Act. 5.3.8 The Appellant argued that it was curious to note that only after the reconstitution of the Board, did the Board suddenly have the power to hear and determine the Appellant's disciplinary case. It was submitted that the Appellant the Board had no power to do so. 5.3.9 In reply to ground four, it was submitted that the reopened case against the Appellant had nothing to do with the withdrawal request of the final warning letter. Further that the Board found that his alleged actions did not constitute any offence in the Code of Conduct. It was stated that the reconstituted Board I J30 Page were pushing the agenda of the shareholders, which they were earlier part of. 5.3.10 It was submitted that contrary to the Respondent's argument, that the Appellant was ungovernable, the Appellant was not dismissed because he was ungovernable. Rather, he was dismissed for his refusal to participate in the disciplinary proceedings so the Board found the Appellant guilty as charged, culminating in his dismissal. 5.3.11 It was stated that in as much as the Respondent had the power to discipline the Appellant, the power was not exercised correctly as the Appellant's dismissal was contrary to the rules of natural justice. In response to ground five, it was stated that whilst the Appellant accepted that the Respondent's shareholders were not excluded from the affairs of the Respondent, they could not, however, have a say in relation to disciplinary matters, which according to Section 25(2)(d) of the Higher Education Act, are a preserve of the Council and in this case the Board. 5.3.12 It was stated that the record was clear that the Board was acting on the instruction of shareholders. It was argued that as the taking of the disciplinary action against the Appellant, following the withdrawal of the final warning letter, was not at the behest of the Board but the Shareholders, it was contrary to the law. J31 I Page 5.3.13 Lastly, under ground six, it was submitted that whilst clause 15 .2 of the Conditions of Service allowed for the removal on the grounds of misconduct including incompetence, the clause was very clear in that the application of Appendix A of the Code of Conduct was mandatory. It was stated that the argument by the Respondent that Article 30(xi) of the Articles of Association, allowed for the removal of the Vice-Chancellor for incompetence, could be read in isolation from the applicable Conditions of Service, was unfathomable 5. 3 .14 It was submitted that when the applicable provisions in the Articles, Conditions of Service and Code of Conduct were read together, it was clear that the Respondent's Board of Directors may dismiss an employee for incompetence but only for a second breach. 5. 3 .15 The Appellant argued that whilst an employee could be dismissed summarily if there was serious misconduct, the alleged incompetence and offence of "abuse of office" were not dismissible. 5. 3 .16 It was also stated that a literal interpretation of section 33 of the Higher Education Act, showed that the suspension was not tied to the period for filing a notice of appeal. However, had the period of appeal and that of the suspension been limited to the window for filing the notice of appeal, the law would have been explicit. The Appellant was therefore entitled to his salary from J32 I Page the date of his purported dismissal, as well as all other benefits that the Appellant was entitled to under his contract. 5. 3 .17 It was submitted that it was clear reinstatement was not available, as such the Court ought to consider damages. Reliance was placed on the case of ANZ Grindlays Bank Limited v Kaona (1995-1997) ZR 85<13>. It was further submitted that the Court had jurisdiction to order the relief claimed by the Appellant. Reliance was placed on Rule 15 of the High Court (Appeals) (General) Rules, Statutory Instrument No. 6 of 1984, and on interest, Order XLV II Rule 21 of the High Court Rules. Further reliance was placed on the cases of New Plast Industries Limited v Commissioner of Lands and Another (2001) ZR 51<14 and B.P. Zambia Pk v > Zambia Competition Commission, Total Aviation and Export Limited (SCZ Appeal No. 22 of 2011)<15 It was argued >_ that Section 33 of the Higher Education Act provides for an appeal to the High Court and not a complaint before the Industrial Relations Division of the High Court. 5.3.18It was prayed that the Appeal succeeds in its entirety with costs payable to the Appellant. And also that reliefs sought by the Appellant be granted. 6. ANALYSIS AND DECISION 6.1 The circumstances surrounding the Appellant's engagement by the Respondent are clearly not in dispute in this matter. The issue under contention relates to the manner in which the Appellant was I J33 Pag e dismissed from his employment. The issues for resolution, as can be deciphered from the Grounds of Appeal and attendant Heads of argument, can be summarised as follows: i) Ground 1: Was the Appellant charged twice when the Respondent dedded to withdraw the initial charge and charge him again on the same facts? ii) Ground 2: Was the Appellant charged with a non-existent charge in the Respondent's Code ofC onduct? iii) Ground 3 and 5: Was the Appellant's disciplinary case handled by the correct organ in the Respondent institution? iv) Ground 4: Were the rules of natural justice followed when the same people that drew up the charges against the Appellant also sought to preside over the hearing? v) Ground 6: Was the dismissal on the grounds of incompetence unfair as the sanction meted was not the one attendant to a first offender, as in the case oft he Appellant? 6.2 Now it must be stated from the outset that the issue as regards the applicable law in relation to the Appellant's Disciplinary process was dealt with in a Ruling delivered by this Court where the Court's jurisdiction to entertain the appeal was raised. The said Ruling was not appealed against therefore it can be deemed that the issue is settled in this matter and need not be belaboured. For the avoidance of doubt it was found by this Court that the applicable law in relation to the affairs of the Respondent institution is the Higher Education Act, Act Number 4 of 2013. It was also found in the said Ruling that the Board of Directors of I J34 Page the institution was the de facto Council of the Respondent at the time therefore amenable to Section 33 of the Act. 6.3 Was the Appellant charged twice when the Respondent decided to withdraw the initial charge and charge him again on the same facts? 6.3.1 In Ground 1 the contention of the Appellant was basically that he had been charged twice under the same set of facts. In the briefest of terms, what he was basically pleading was "double jeopardy". His argument was that the Respondent having charged him already on the same facts and then withdrawn those charges could not turn around and charge him again on the same facts as this amounted to him being charged twice. The Respondent's position in a nutshell was that they were entitled to review their own decision as the Appellant had succeeded in demonstrating to them that there had not been any hearing before the final warning letter was issued as is required by law and under the rules of natural justice. They were therefore at a loss as to how the recharging could amount to an estoppel of future disciplinary hearings. The arguments of the parties have already been summarised therefore they require no repetition. 6.3.2 It must be noted that "double jeopardy" is primarily a legal concept related to criminal proceedings, not administrative actions like employment discipline. However, while the principle of "double jeopardy" is not technically applicable to employment disciplinary proceedings, it is often used analogously to signify that an employee cannot be disciplined J35 I Page twice for the same offense, meaning that an employer cannot punish an employee for the same act of misconduct more than once, essentially upholding the principle of fairness in disciplinary actions. Fairness is an accepted concept under the rules of natural justice. 6.3.3 Now the facts in this case show that when the Appellant complained to the Respondent about the manner in which he had been dealt with, the Final W aming Letter was withdrawn. This was an indication that the Respondent rescinded its earlier decision thereby nullifying its earlier action and vacating the decision that was subsequently made. The determing factor as to whether the Appellant could be charged again on the same facts lies in whether the disciplinary action had taken its full course. In this case, it is not in dispute that by a letter dated 12th October, 2017 the Appellant was charged with "Negligence" and "Abuse of Authority". These charges were premised on a report that had been made to the Board of Directors involving the manner in which the services of Abacus had been procured. In the said letter the Appellant was then issued with a "Final Warning". Interestingly, the Respondent actually stated that the said actions by the Appellant did not fall under any of the offences laid out in the Revised Condition of Service relating to the Appellant. From the foregoing it is clear that the action of the Board constituted disciplinary action against the Appellant. J36 I Page 6.3.4 Now what is of further interest is what followed. The Appellant challenged the actions of the Respondent by demanding the withdrawal of the Final Warning Letter. The demand yielded positive fruit as the Respondent withdrew the charges and the fmal warning letter. The Respondent in so doing took what can be termed as a self correcting measure. They then proceeded to prefer charges against the Appellant on the same facts but now to charge him under the disciplinary code of conduct for "Incompetence and Abuse of Office". 6.3.5 The submission of the Appellant is that he had already undergone disciplinary proceedings when he was first charged and issued with a warning letter. However, what he conveniently neglects to advance as part of his argument is that this action was entirely to his benefit. By demanding that the Respondent "review" its decision by withdrawing the charges, instead of his appealing the decision, this was g1vmg the Respondent an opportunity to correct itself. What the Appellant did, in essence, was to give the Respondent an opportunity to deal with the issue at hand in the proper manner. Had the Appellant moved by way of appealing the decision of the Board, then perhaps the argument of fairness would have arisen. In this case it cannot be said that the review of Respondent's earlier decision and subsequent institution of disciplinary proceedings against the Appellant was unfair. Ground one of the Appeal accordingly fails. J37 I Page 6.4 Ground 2: Was the Appellant charged with a non-existent charge in the Respondent's Code ofC onduct? 6.4.1 Now in Ground 2 the contention by the Appellant is that the charge of "abuse of office" does not exist in the code of conduct therefore the Appellant was wrongly charged. In making the argument it was pointed out that what is stated in the code is "abuse of offence. The court was invited to apply the contra proferentum rule in this case as opposed to the bonam partem principle, as suggested by the Respondent. It was submitted that the Code of Conduct was not prepared by the Appellant but by the Respondent. The Appellant, as head of the institution found that the Code had already been prepared when he was engaged. The Respondent in advancing its position has also submitted that a person of the Appellant's intellect and standing ought to have known that the offence captioned as "abuse of offence" meant "abuse of office". It was stated that there was no need for any aid in interpretation but that the same should just be taken as a typographical error and logic of a reasonable person applied to correct and apply the prov1s1on. 6.4.2 Now as has already been stated, a look at Clause l 7(iv) in the Code of Conduct clearly shows that it is captioned as "Abuse of Offence". Further, on the table the said offence stands alone in a box, without any attendant sanction. Taking into account the submissions by the parties and the authorities cited and in possibly admitting that there was a clerical error, the question I J38 Page arises as to who stands to benefit from it? The Appellant seeks to benefit from this error by relying on the contra proferentum rule. On the other hand the Respondent is inviting the court to consider correcting the error by accepting it as merely a typographical one which any reasonable person would do. 6.4.3 In this case I am inclined to accept the submission from the Appellant and adopt the approach taken by Judge Mungomba in the case of Chisanga Mushili Mulenga vs ZESCO Limited<16 when she found that calling in aid ambiguity or ) linguistic error does not help the Defendant. It is asking a little too much from the Court to correct the document for the Appellant and then thereafter make an interpretation of the corrected wording and format that favours them. After all it is a principle of law that "Nemo auditur propriam turpitudinem allegans" loosely translated "one should not benefit from their own wrong doing. " The Respondent being the owner of the Code of Conduct cannot rely on an error contained in it to succeed against one whom they seek to use it against. In that regard the Appellant is correct in stating that the offence of "abuse of office" with which he was charged does not exist in the Code of Conduct therefore it was unlawful and unfair for the Respondent to charge him with the offence. The 2nd Ground of appeal accordingly succeeds. 6.5 Ground 3 and 5: Was the Appellant's disciplinary case handled by the correct organ in the Respondent institution? I J39 Page 6.5.1 In both grounds 3 and 5 the Appellant attacks the procedure adopted by the Respondent in handling of the disciplinary proceedings. In Ground 3 the Appellant argues that the process ought to have been submitted to a tribunal as is provided for in paragraph 22 of the Third Schedule of the Higher Education Act. In Ground 5, what is brought into question is the involvement of the Shareholders m the disciplinary proceedings. In response to these grounds it was argued that the Appellant being Vice Chancellor was not amenable to the provisions in the Third Schedule. That those subject to having their disciplinary issues referred to a Tribunal were provided for in paragraphs 13 and 14 of the Third Schedule. Further, in response to Ground 5 the allegation that the shareholders participated in the disciplinary proceedings was denied. 6.5.2 Now in order to understand the application of the Third Schedule to the Higher Education Act its important to go to its enabling Sections which are section 28 and 35 (2). These provide as follows: 28. A higher education institution shall have a Chancellor and staffa s specified in the Third Schedule. 35. (1) There shall be a Senate for a higher education institution which shall be the supreme academic authority of the higher education institution. (2) The Third Schedule applies to Senates. I J40 Page 6.5.3 Moving on to the Third Schedule, in paragraph 1 the definition of staff includes the Vice Chancellor, who falls under the academic staff. Now in relation to discipline Paragraph 22 of the Third Schedule provides that: 22. (I) There shall be established in each higher education institution a Higher Education Institution Staff Tribunal to investigate and consider disciplinary cases referred to it and make recommendations to the Council. (2) A Tribunal shall consist oft he following members (a) a legal practitioner with not less than ten years legal experience, who shall be the Chairperson; (b) two persons from the non-academic members of the Council appointed by the Chairperson oft he Council; and (c) two persons nominated by the academic staff of the higher education institution and appointed by the Chairperson of the Council. (3) A Tribunal may request any senior member ofa department to assist it in the assessment ofa ny particular case (4) The Council shall appoint the secretary to the Tribunal. (5) The members ofa Tribunal shall hold office for a period oft hree years and shall be eligible for reappointment for a further like period. (6) A Trz'bunal shall complete its work wdhin a period of st'x months from the date from which the suspensz'on of a member of stafft akes effect. (7) The Council shall implement the decisions oft he Tribunal. J41 I Page 6.5.4 Now from the foregoing it is pretty clear to see that there is no categorisation as to who the Disciplinary Tribunal in paragraph 22 applies. What is clear is the purpose of the Staff Tribunal is to consider cases that are referred to it by the Council. Now when one considers Paragraphs 13 and 14, these provide for disciplinary measures for the named category of staff. Paragraph 14(2) then provides that those staff that are not named will be disciplined according to the conditions and terms of service. A careful look at the provision shows that the positions of Vice Chancellor and Deputy Vice Chancellor are not named. It therefore follows that they ought to be dealt with according to the conditions and terms of service of the Respondent. 6.5.5 A perusal of the Conditions of Service of the Respondent however reveals that the procedure for disciplining the Vice Chancellor and the Deputy Vice Chancellor are not provided. This then implies that the fall back measure is Paragraph 22 of the Third Schedule to the Higher Education Act. 6.5.6 A careful consideration of Paragraph 22 shows that a Staff Tribunal must be set up in consideration of any disciplinary action against a member of staff of a Higher Education institution. It further shows that the decision of the Tribunal will then be sent to the Council who are mandated to carry out the disciplinary action. A fmding is therefore made that even in this case the correct procedure was for a Tribunal to be set up in accordance with Paragraph 22 of the Third Schedule to 142 I Page consider the case of the Appellant. It was an error on the part of the Respondent's Board of Directors to have taken the issue into their own hands. The argument that the Appellant held a very senior position therefore he could not be subjected to the Tribunal is misplaced. The Tribunal's composition includes a senior legal practitioner and two members of the Council. These are very high ranking persons who would be able to deal with a Vice Chancellor's disciplinary issues. Further, the Tribunal itself is appointed by the highest organ m the University. In view of the foregoing it is found that the Appellant succeeds on Grounds 3 and 5. 6.6 Having found that the Board did not have the jurisdiction to conduct the disciplinary hearing and mete out the sanctions against the Appellant it is pointless to proceed to belabour the other two grounds as they relate to a procedure which was a nullity. As has been stated in a plethora of authorities - "ex nihilo nihil fit" (out of nothing comes nothing). (See the cases of Antonio V entrigilia and Emmanuela V entrigilia v Finsbury Investments Ltd (SCZ Appeal No. 2 of 2019)07 and Morgan ) Naik v Simon David Burges and 5 others (CAZ Appeal No. 45/2000)(IS) 6.7 RELIEFS 6. 7 .1 The following were the reliefs sought by the Appellant: J43 I Page t'. Payment ofs alary arrears inclust've ofa pplt'cable allowances from ffh June 2018, to the date of the purported dismissal up to ]pt March 2021. it'. Payment ofa ll contractual benefits that accrued to him as at 3pt March 2021. iii. Payment of 36 months' salary in damages for unfair and wrongful dismissal. t'v. Interest. v. Costs 6.7.2 The Appellant has argued that he is entitled to the reliefs sought in this appeal based on Rule 15 of the High Court (Appeals)(General) Rules, SI 611984 and OrderX L VII Rule 21 oft he High Court Rules. Chapter 27 of the Laws of Zambia. It is also argued that where reinstatement is not an option, when it has been found that the dismissal of an appellant was unfair, the Appellant may be awarded damages as provided for in the case of ANZ Grind.lays Bank Limtied v Kaona (1995-1997) ZR g5<13>_ 6.7.3 The Respondent argued that the Appellant was not entitled to the reliefs sought. It was submitted that there was no requirement under Section 33 for a dismissed person to be suspended and remain on the payroll for the duration of the appeal. The Court was invited to construe the phrase "period of appeal" to mean the time within which the appeal ought to be filed, being 14 days from the time of the dismissal. It was J44 I Pa ge stated that applying any other contrary interpretation would lead to an absurdity. It was argued that in order for the Appellant to get the reliefs sought he ought to have considered taking out an action in the Industrial Relations Division of the High Court for wrongful or unfair dismissal. It was further argued that the Appeal, as filed under SI 6 of 1984, did not have provision for seeking an award of damages or interest. The Court was urged to refuse the Appellant's prayer. 6. 7.4 It was argued that, even in the event that the Court finds that the Appellant is entitled to the reliefs, the Appellant had not offered up any authorities to back the sort of compensation prayed for. It was stated that the court ought to follow established principles when determing damages for wrongful or unfair dismissal. 6.7.5 It was further argued that the conduct of the Appellant was such that any compensation paid or an award for damages would amount to rewarding the Appellant who had already caused financial harm to the Defendant institution. It was argued that whether in terms of reinstatement for the remainder of the period of the contract, award of damages, or costs, such award would in the circumstances of this case be contrary to public policy and the law aimed at promoting the development of education institutions in the country. I J45 Page 6.7.6 In a recent case of Pius Kasolo v ZCCM Investment Holding (CAZ Appeal No. 185/2022)09 the Court of Appeal stated as ) follows at page J41" In awarding such damages the is Court is guided by the need to do substantial justice. The case of Bupe and Another v Zambia National Commercial Bank (SCZ Appeal No. 27 of 2000)(unreportedl20 J provides guidance; where it was employed that the granting ofr emedies is done with due regard to the need to do substantial justice. It is thus patent that when awarding damages the Court should award such damages or compensation as it considers fit in the circumstances of each case, while keeping in mind to do substantial justice" 6.7 . 7 In view of the above authority in the Kasolo case<19>, it is found that this court has the discretion to exercise its inherent jurisdiction to do substantial justice as provided for in Article 118 of the Constitution. Further, the Court is persuaded by the arguments of the Appellant that even at law the Court has the jurisdiction to award the reliefs pleaded by the Appellant. 6. 7. 8 In the case of Chilanga Cement v Kasote Singongo (SCZ Judgment 13 of 2009)<21l, the Supreme Court awarded the complainant 24 months salary as damages for malicious redundancy, and guided that enhanced damages are awarded to compensate for inconvenience and distress caused and to condemn the employer for the malicious and improper manner an employee effects dismissal. I J46 Page 6.7.9 Considering the circumstances of this case it can be stated that the approach taken by the Respondent in dismissing the Appellant was wrongful. Even when the Respondent had the opportunity to correct the dismissal procedure they still resorted to a wrong procedure. Clearly there was a deep desire to terminate the relationship with the Appellant at all costs. Such conduct by the Respondent gives rise to a situation where the Appellant ought to be compensated for the inconvenience and distress that he was put through. 6.7.l0Tuming to the interpretation of ''period of appeal" in Section 33(2). The Appellant has submitted that this period run for the duration of the Appeal, while the Respondent have argued that this was just for the period in which the Appellant was expected to lodge its appeal to the High Court. A perusal of the provision shows that it is clear and not ambiguous at all. According the Concise Oxford English Dictionary (JZ11 Edition. edited by Angus Stevenson and Naun"ce Waite. Oxford University Press) the word "period" means "I. a length or portion oft ime" 6. 7 .11 Therefore, a literal interpretation of this would entail that the provision states that the member of academic or administrative staff of a higher education institution removed from office or employment by the Council shall remain suspended until the expiration of the length or portion oft ime of appeal. There is no ambiguity here nor any need to import any other interpretation. The length of the appeal relates to the appellate procedure from I J47 Page ;; beginning to end. Had the intention been that the suspension would be for the period from the date the decision was communicated to the date of the lodging of the appeal this would have been clearly stated. Attempting to import any other interpretation, other than a literal one, would infact give rise to an absurdity. In this case the Appellant has actually been magnanimous to point out that the expiration of the Contract on 31st March 2021 actually terminated the Contract between the parties. That as the Contract expired when the Appeal was still ongoing then the effective date of the suspension should be computed only upto the date of the expiration of the Contract on 3pt March, 2021. This is a more realistic way to approach the matter. It is accordingly found that the Appellant's suspension ran from the date when the decision to dismiss him was made upto 31st March 2021. He is therefore accordingly entitled to the attendant reliefs. 6.7.12In view of the findings above the following reliefs are granted to the Appellant: i) Payment ofs alary arrears inclusive ofa pplicable allowances from gh June 2018 to 3pt March, 2021; ii) Payment ofa ll contractual benefits that accrued to the Appellant as at 3 pt May, 202;. iii) Payment of3 months salary in damages for wrongful dismissal, as there have been no aggravating circumstances demonstrated; and J48 I Page iv) Interest at the current lending rate as determined by the Bank of Zambia from the time ofe ntering up such judgment until the same shall be satisfied. 6.8 Costs are ordered for the Appellant, to be taxed in default of agreement. 6.9 Leave to Appeal is granted. !-: • -,, Delivered at Livingstone this 6th day ofFebruafy, ·202~·:'· . . . ' ~ ~ 1 ~ ~ ~ ..• ii', !. . /"'> , - "'•i (i.; ((j",J,. I ' • r. .,,_, ,' .,✓ .-~. .. . I j' ' C.M.LOMBE JUDGE J49 I Pa g e