CAZ/063/2020

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 81/2020

HOLDENN AT NDOLA

(CIVIL JURISDICTION)

BETWEEN

BRIAN PHIRI APPELLANT

AND

ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED 1st RESPONDENT

VICTORIOUS MULELE 2nd RESPONDENT

RONALD CHISALA 3rd RESPONDENT

ABEDENIZE CHUMBU 4th RESPONDENT

ATTORNEY GENERAL 5th RESPONDENT

MEMORANDUM OF APPEAL TO THE SUPREME COURT

The appellant above named, appeal to the Supreme Court against the Judgment of cause No.
81/2020 in the above-mentioned matter on the following grounds:-

GROUND ONE
The learned judges misdirected themselves in their judgement by dismissing my grounds of appeal
without a due diligence consideration and while the awarded damages were totally inadequate
having regard to the aggravating circumstances and awarded against people who were the
informers/agents of the 1st respondent.

GROUND TWO

The learned judges infringed the rules of natural justice by not awarding any relief for the claim of
Damages for slander, unlawful/illegal and wrongful detention, Damages for humiliation
embarrassment, torture and mental anguish and yet the Appellant adduced enough evidence on
records.
GROUND THREE

The lower court erred in law and facts when it took a narrow view by not awarding the Appellant
damages as claimed as the arrest of the Appellant without a warrant and subsequent detention for
two days by Masala Police Station on suspicious grounds which were not substantiated amounted
to false imprisonment.

GROUND FOUR

The Judges in the court of Appeal erred in law and facts by omitting and not to peruse the whole
records of Appeal, neither the high court Judge didn’t do so because she didn’t peruse the whole
plaintiff bundles of pleadings of documents

GROUND FIVE

The Judges in the court of Appeal erred in Law and facts by not noticing that it was a great gross
mistakes for the respondents or defendants not to appear in court while been saved the notices of
hearings, summons, and all the documentations for court proceedings. And surprising the 1 st
respondent counsel failed the respondent’s heads of arguments when it was a statute barried. And
not even to follow lay-down procedures and the court of Appeals rules or Supreme court rules and
it was accepted even to refer to it by the court of Appeals Judges which was abusing the court
authorities been given on to them by not dismissing that 1st respondents Heads of arguments
according to orders, procedures and courts rules.

GOUND SIX

The Judges in the court of Appeal erred in Law and facts by saying that they scrutinised the whole
documents in the records of Appeal which is misleading this court because they misapprehended
and misconceived the whole matter, by dismissing the whole valuable claims.

GROUND SEVEN

The Judges in the court of Appeal erred in Law and facts by seriously not noticing that the 2nd
respondent was chief security officer for Zamtel as employee and the 3rd and the 4th was the
informers of Zamtel or agents to it. Surprisingly there is no dispute that the 2nd respondent is the
one who reported the matter of theft by savant to Zambia police KX police post.
After being detained first for two days the whole the whole two days in the office of the second
respondent for his investigation on 26th and 27th April, 2004. And there is no dispute that I was
released on police Bond. And after 12 days on 10th May, 2004 and Zamtel management through
the some 2nd respondent withdrawn the matter from the subordinate court and the state police.
Also the Judges didn’t noticed on the records of Appeal that I was officially again charged the same
case in the company and I challenged the same report which the high court Judge relied on her
Judgement and I was re-instated in the company and save for 8 years.

Also as captioned above in whole the submissions of the material evidence filed on the records of
appeal and the affidavit in opposition filed on 17th November 2021 to the 1st respondent Heads of
augments on this matter, Supreme Court shall come to see that the Zamtel Company Limited and
the Attorney General as masters of their employees and agents are Vicariously liable to pay for any
awards given to the appellant from this Court and the Courts below with the whole incidentals and
costs thereof.

8.0 MISDIRECTIONS IN LAW AND FACTS

8.1 THE MISDIRECTIONS OF THE LAW AND FACTS FROM ZAMTEL

The 2nd respondent on behalf of the 1st respondent withdraw the case of the criminal
proceedings from the subordinate court, deciding for administration purposes.
On 10th May I was officially given a notice of suspension in order to facilitate investigation of
theft of 20 litres fuel (petrol) from Zamtel motor vehicle registration number AAX6707. On 11
May, 2004 I myself I went to police and make a formal request of the police report to be given
to me on this matter of which the KX police post did.
On 28th July, 2004 I was officially submitted my written exculpatory statement to Zamtel
management.
On 6th August I was officially given a callout to attend the case hearing without fail around
14:30hrs in the managing director s conference room on 7th floor.
On August 26th 2004 I was officially re-instated by the Zamtel management because they
didn’t found me guilty to the allegations of theft by servant case.
On September 4th 2004 the 2nd respondent gave back the same 20 litres of fuel (petrol) to the
owner Mr. Angel Museke.
 On 17th November 2004 I bought a summon for Zamtel and three (3) others namely Victorious
Mulele employee for Zamtel and Ronald Chisala and Abedenize Chumbu who were agents for
the 1st respondent. This was the greatest gross error in law and facts.
8.2 THE MISDIRECTIONS IN LAW AND FACTS FROM JUDGE YVUNNE CHEMBE HIGH
COURT JUDGE IN NDOLA.
First and foremost this matter was dragged for 14 years even the file went missing not until I
myself found this file on national acarhiev in Ndola. And my counsel namely Shamakamba
did what he can do over this matter at hand, to restart it.
The learned trial judge Yvunne Chembe high court judge misdirected herself in law and facts
by failure to have a consideration of my unlawful imprisonment by the police as evidenced by
charge obtained from Masaka police station report and KX police report, as the plaintiff
bundles of pleadings shows.
The learned trial judge Chembe Yvunne misdirected herself in law and facts by failure to
regard that the 3rd defendant Ronald Chisala and the 4th defendant Abedenuze Chumbu as
informers/ agents of the 1st respondent Zamtel. Thereby rendering actions against me to be
illegal.
The learned trial judge Chembe Yvunne misdirected herself in low and facts that she was
depending on a report of the second defendant hearsay evidence which was the
investigations report from chief security officer for Zamtel namely Mr. Victorious Mulele which I
challenged and been re-instated in the company Zamtel.
The learned trial judge Yvunne Chembe misdirected herself in law and facts by dismissing
claims which had material evidence without scrutinizing the evidence in full.
The learned trial judge Yvunne Chembe misdirected herself in law and facts by failure to
subpoena the defendants to appear before the court proceedings hereby disregarding the
courts authority.
The learned trial Judge Yvunne Chembe misdirected herself to allow the defendants to appear
before court in order to provide an opportunity to cross examine them on this matter to prove
me guilty as the two courts claims.
The learned trial judge misdirected herself by failure to close the case and give me the default
judgement as the writ of summon states clearly for not attendance or appearance and
defence.
8.3 THE MISDIRECTIONS OF THE APPEALS COURT JUDGES JUDGE F.M CHISHIMBA
JUDGE B.M MAJULA AND K. MUZENGA
The learned appeal judges misdirected themselves in law and facts when they said they
scrutinized the appellant heads of arguments and records of appeal as evidenced from the
said two judgments which was a misleading decision
The learned judges of court of appeal misdirected themselves in law and facts by failure to
consider the limitations act of the respondent to file is heads of arguments as stated in the
affidavit in opposition which was filed on the 17 th November, 2021 as the matter was statute
barried as read with section 2 cap 10 and section 2 (c) and (d) cap 11 of the laws of Zambia
vol 2.
The learned judges misdirected themselves in law and facts by failure to see that the first
respondent didn’t follow court procedures by failing to file these documents in court
1 summons for leave out of time that the court should have granted an order to file 1st
respondent heads of arguments of out of time.
The procedure was not followed by law because the question is who gave him the authority
and order for him to file the heads of arguments which was even considered by the appeal
court judges as evidenced by the appeal judgement and take note that the matter was in court
for 16 years and where was 1st Respondent counsel.
The learned judges of court of appeal misdirected themselves by failure to see that the 1 st
respondent counsel has failed to set aside the following documents filed before court of
appeal by the appellant as follows:
 Memorandum of appearance
 Appellants heads arguments
 Exparte order filed on 15th March, 2022
 Affidavit of service filed on 28th May, 2020.
 Notice of payments letter and marked BP2 to BP4 received by the first respondent on
27th May 2020.

And neglecting the law and facts that an employer is vicariously liable for wrongdoings of an
employee if those wrongs are committed while the employee is conducting his duties of employer

The two courts are dismissing the valuable claims:

 1. Damages for slander
2. Damages for unlawful/illegal and wrongful detention
3. Damages for humiliation, embarrassment, torture and mental anguish.

Instead of to subpoena the counsel from Zamtel, witnesses from Zamtel and to ask them to bring
the exhibits and evidence which they brought into those two courts to prove me guilty of stealing 20
litres of petrol as the two courts are claiming that the respondents had probable and reasonable
cause of suspecting for me to be guilty when I was put in detention at KX police post which was
falling under Masala police station.

On these grounds, two courts fell into gross error by not noticing that this matter was falling on a
mere suspicion and that is why the employer of the appellant re-instated him in the company
Zamtel, and he worked for eight years before the company was sold to Lap green company.

The learned trial Judges of court of appeal misdirected in law and facts by accepting themselves
the claims from the 1st respondents counsel that I really failed to prove my case from the two courts
below, as the judgement from court of appeal shows.

Dated at Lusaka this ____________________________ day of ___________________2022

_______________________________________
Master of the Supreme Court

Drawn by:
BRIAN PHIRI
Plot No. 588, Twapia
Ndola
0777674485/0972240178
/0964484679

Appellant