Zambia National Commercial Bank Plc v Martin Tembo Anor (Appeal No. 98/2023) (15 April 2025) – ZambiaLII

, IN THE COURT OF APPEAL OF ZAMBIA AppealNo.98/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ~:;;::·-~~ E~CY¥B~",,i.n, APPELLANT ZAMBIA NATIONAL CO ~o:~ ,;)L, _:.~~ jtJ ) AND CIVIi. HCClSTRY 1 ~ - MARTIN TEMBO '-'• o. Box , \..,J'=';,.~-,:' 1 ST RESPONDENT MICAH SITALI RESPONDENT 2ND Coram: Kondolo SC, Majula and Muzenga, JJA On 26th March, 2025 and 15th April, 2025. For the Appellant: Mrs N. Simachela with Mrs M. Chakoleka & Mrs N. Dimingo, all of Nchito & Nchito For the Respondents: Mr. J. C. Kalokoni with Mr. L. Kimena, both of Messrs Kalokoni & Company JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Victoria Daka v. Petauke District Council (SCZ Appeal No. I 08/ 2011) 2. Supabets Sports Betting v. Batuke Kalimukwa (SCZ Appeal No 110/2016) 3. Prudence Rashai Chaikatisha v. Stanbic Bank Zambia Limited (SCZ Appeal No. 95/2015 4. Chimanga Changa Ltd v. Stephen Chipango Ngombe (2010) 1 ZR 208 5. Attorney General v. Achiume (1983) ZR 1 J2 6. Fulton Bank v. Stafford (2 wend 483, at 485) 7. William David Carlisle Wise v. E. F. Hervey Ltd (1995) ZR 179 8. ZESCO Ltd v. David Lubasi Muyambango (2006) ZR 22 9. Industrial Credit Company Ltd & Anor v. Malar Industries Ltd & Anor (Selected Judgment No.3 0f2019) 10. Times of Zambia Newspapers Ltd v. Lee Chisulo (1984) ZR 83 I I.Patrick Chibulu v. Attorney General (SCZAppeal No. 14/2016) 12.Kasonde v. Bank of Zambia (1995-97) ZR 238 13.John Caiphus Mumba v. Society for Family Health (SCZ Appeal No. 175 of2005) 14.Attorney General v. Jackson Phiri(1988-89) 121 (SC) 15.Emmanuel Simenda George Mumba v. Public Service Pensions Fund Board (Appeal No.166/2016) 16.Nkhata v. Attorney General (1966) ZR 124 17.Attorney General v. Achiume (1963) ZR 1 18.Kitwe City Council v. William Nguni (2005) ZR 57 19.Mazoka and Others v. Mwanawasa and Others (2006) ZR 135 20.Jacob Nyoni v. The Attorney-General (2001) ZR 65 21. Chintomfwa v. Ndola Lime Limited (1999) ZR 172 22.Chilanga Cement Plc v. Kasote Singogo (2009) ZR 122 (SC) 23.Dennis Chansa v. Barclays Bank Zambia Plc) 24.Swarp Spinning Mills Plc v. Sebastian Chileshe (2001) ZR 2 25.Konkola Copper Mines PLC v. Aaron Chimfwembe (2016) 26.African Banking Corporation v. Bernard Fungamwango (CAZ Appeal No 148/2020) 27.David Banda v. Attorney General (CAZ Appeal 233 of 2020) 28.Richard H. Chama & 213 Others vs National Pension scheme Authority & Others (SCZAppeal No. 1/2018) 29.Atlantic Bakery Ltd v. Zambia Electricity Supply Corporation Ltd (SCZ Appeal 47 of2016) 30. Care International Zambia Ltd v. Mis heck Tembo (Appeal No. 1 of 2023 31.Konkola Copper Mines PLC v. Chileshe (Appeal No. 94 of 2015) 32. Warren Chabala Chibale v. Mopani Copper Mines (Appeal No. 1 of 2023) • J3 •' 33. Wabei Nambula Mangambwa v ZCCM-IH Pie (CAZ Appeal No.175 Of 2020) 34. Thorp vs Holdsworth 1876 3 CH. D 637 35.Kunda vs Konkola Copper Mines SCZ Appeal No. 48/ 2005. 1.0 Introduction 1.1 The appeal before us originates from the Judgment of the Court below that was presided over by the Honourable Mrs. Justice M. Mapani-Kawimbe. The case involves an employment dispute that arose following allegations of negligence attributed to the Respondents. The Respondents were dismayed with the outcome of the disciplinary process that was conducted by their employer, approached the Court below seeking various reliefs. The Court found in their favour when it held that they were wrongfully dismissed. 2.0 Background 2.1 The Respondents were former employees of the Appellant bank. They were employed on permanent and pensionable contracts between 2015 and 2021 as fulfilment and compliance assistant and bank clerk, respectively. They worked in the creations team department, which is responsible for setting up profiles for internet banking for the bank's clients. As part of their work, they created a profile for internet banking for University of Zambia (UNZA) Press and Printers. According to the Appellant, the profile was negligently set up and caused it to suffer huge losses. J4 2.2 The Respondents were subsequently charged with the offence of negligence of duty and their case was processed by the Appellant's disciplinary and appeals committees. After the hearing, they were summarily dismissed from employment and were aggrieved by the decision. Through these proceedings commenced on 3rd February 2022, the Respondents sought, inter alia, a declaration that they were wrongfully and unfairly dismissed from employment. 3.0 Decision of the lower court 3.1 Having considered the evidence, the lower court made the following findings and orders: Negligence and Compliance with Procedures 3.2 The Respondents followed the bank's E-channel support procedures manual in setting up the internet banking profile. The incomplete application forms were verified and approved at the branch level before the Respondents processed them. The bank's system had flaws that contributed to the loss, .not the Respondents' actions. Wrongful Dismissal 3.3 The Respondents were charged with failure to comply with procedures and negligence but were not responsible for the system's deficiencies. The court found that there was no factual basis to justify their dismissal. The court was of the JS view that the bank failed to ensure its internet banking system was properly tested. Grievance and Disciplinary Procedures 3.4 In addition, the court noted that the bank did not fully comply with its grievance and disciplinary code, but the delay in communicating the decision did not cause the Respondents undue hardship. However, the disciplinary measures were deemed unfair because the Respondents were used as scapegoats for system failures. Damages and Compensation 3.5 The court found the Respondents' dismissal was abrupt, unjust, and traumatizing, making future employment in the banking sector unlikely. However, their claim for mental anguish failed due to a lack of medical evidence. 3.6 Ultimately, the court below held that the Respondents were wrongfully dismissed and awarded 36 months' salary as damages. Furthermore, that they were entitled to pension benefits for the notice period. Interest on awards from May 31, 2021, at applicable rates and costs. 4.0 Grounds of Appeal 4.1 Both parties were disconsolate with the decision of the lower court and have appealed to this court. The grounds of appeal for the Appellant were set out as follows: J6 "1. The court below erred in law and fact when it held that the Respondents had been wrongfully dismissed despite making a finding of fact that the Respondents had been subjected to a fair disciplinary process in accordance with the provisions of the Appellant's Disciplinary Code. 2. The court below erred in law and fact when it found that there was no substratum off acts established to support the Respondent's dismissal against the weight of the evidence that the Respondents were in fact negligent in the performance of their duties. 3. The Court below erred in law and fact when it found that there was no evidence regarding what fields were mandatory on the application forms for internet banking against the weight of the evidence that the Appellant's E Channels Procedure required the Respondents to check the form for completeness. 4. The Court below erred in law and in fact when it found that the Respondents were bound to execute instructions as received from the Appellant's clients when there was no evidence on the Record to support such a finding. 5. The Court below erred in law and in fact when it held at page 156 that facts elicited in cross-examination cannot build a party's case, which.finding is not supported by law. 6. The learned trial Judge erred in law and in fact when it determined the matter solely on the issues for determination as framed by the Respondents in their submissions without considering the relief as endorsed in the pleadings. J7 7. The learned trial Judge erred in law and in fact when she awarded the Respondents pension benefits for the notice period when there was no evidence led by the respondents to prove this claim. 8. Further and in the alternative, the learned trial Judge erred in law and in fact when she departed from the normal measure of damages for wrongful dismissal when she awarded 36 months when the circumstances did not warrant it." 4.2 In respect of the cross-appeal, the Respondents' ground was couched as follows: "The lower court misdirected itself in law when it held that: what is in issue is the Plaintiff claim for wrongful dismissal and not unfair dismissal. .. and that the court will not pay any attention to the arguments on unfair dismissal and will limit itself to the issue of wrongful dismissal." 5.0 APPELLANT'S ARGUMENTS 5.1 In support of the appeal, the Appellant's counsel filed their heads of argument on 11th April 2023. Ground 1 5.2 The Appellant emphasizes that "wrongful dismissal" focuses on whether an employer has breached the employment contract in terms of procedure, whereas "unfair dismissal" J8 examines the substantive merits of the dismissal. Victoria Daka v. Petauke District Councill is cited, where the Supreme Court clarified that wrongful dismissal 1s "essentially procedural," requiring an assessment of whether the employer contravened the contract, while unfair dismissal concerns the substantive grounds for termination. 5.3 In the present case, the trial court found at page J69 (page 78 of the Record of Appeal) that the Respondents received a fair disciplinary hearing under the Appellant's code. The Appellant argues that once a fair disciplinary procedure is confirmed, there is no basis to deem the dismissal "wrongful." At common law, wrongful dismissal typically arises only if contractual or disciplinary code procedures are breached. 5.4 The Appellant contends the trial court erred by evaluating whether the employees were actually at fault, which pertains to the merits of the dismissal and thus to unfair dismissal. In support, the Appellant references Supabets Sports Betting v. Batuke Kalimukwa2, affirming that a wrongful dismissal claim is limited to procedural lapses, whereas an unfair dismissal claim addresses whether the reasons for dismissal are substantively justified. 5.5 Concluding on ground 1, the Appellant asserts that, having determined the Respondents underwent a fair disciplinary procedure, the lower court should have dismissed the wrongful dismissal claim. By examining the adequacy of the reason for dismissal under a wrongful dismissal heading, the J9 court effectively conflated the concepts of wrongful dismissal and unfair dismissal. Ground 2 5.6 On ground 2, the Appellant points out that the Respondents faced two charges: 1. Failure to comply with established procedures. 2. Negligence of duty resulting in financial loss. 5. 7 Their eventual dismissal was based on negligence. The Appellant avers that the lower court unduly focused on procedural adherence rather than the evidence of negligence. 5.8 Citing Prudence Rashai Chaikatisha v. Stanbic Bank Zambia Limited, 3 the Appellant notes that employees must exercise reasonable care in performing their duties. The Respondents allegedly failed to do so when creating Internet banking profiles, thus justifying the charge of negligence leading to a K951,300.00 loss. 5.9 The Appellant also relies on Chimanga Changa Ltd v. Stephen Chipango Ngombe, 4 which held that an employer needs only to act "reasonably" in deciding to dismiss for negligence, rather than proving misconduct beyond a reasonable doubt. They further reference A Comprehensive Guide to Employment Law in Zambia, reinforcing that reasonableness underpins the fairness of a dismissal. JlO 5.10 According to the Appellant, negligence is evident in the incomplete internet banking application form (with Parts 6 and 8 blank), enabling an unauthorized user to transfer K951,300.00. The Respondents knew from a previous incident that missing authorizer details could facilitate fraudulent transactions but still proceeded to create the profile, reinforcing the Appellant's claim of negligence. Grounds 3 and 4 5.11 Grounds 3 and 4 are argued together. The Appellant stresses that its E-Channels Procedure (ROA page 176) requires assigned staff to ensure "all mandatory fields are populated," including the section listing the authorizers. The lower court, however, found no clear definition of "mandatory fields" and dismissed the Appellant's stance, while accepting the Respondents' argument despite a similar lack of documentary evidence. 4.12 The Appellant contends the lower court disregarded its evidence (cross-examination testimony and the E-Channels Manual) for supposedly lacking written proof, yet accepted the Respondents' claims without a parallel written definition of "mandatory fields." The Appellant cites Attorney General v. Achiume5 emphasizing a court must weigh all evidence , fairly rather than dismiss one side's version selectively. 4.13 The Appellant also notes the Respondents testified they could return an incomplete form to the client for correction, Jll meaning they were not obligated to process every form. The Appellant argues the lower court erred by concluding they had no choice but to proceed with a form missing critical authorizer information. 4.14 In summation, the Appellant submits that the E-Channels Procedure requires verifying the completeness of essential fields, and the lower court wrongly held the Respondents were merely following client instructions without discretion to reject incomplete forms. Ground 5 4.15 Turning to ground 5, the Appellant argues that the Lower Court erred by ruling that facts elicited under cross examination cannot be used to establish a party's case. The Appellant insists cross-examination does more than merely discredit a witness; it can also extract facts beneficial to the cross-examiner's case. Fulton Bank v. Stafford6 is cited, where it was observed that the opposing party may support its defence through the other side's witness without calling additional evidence. 4.16 The Court expressly stated that "cross-examination does not build a party's case." However, the Appellant asserts there is no legal principle warranting a blanket exclusion of evidence obtained through cross-examination. By dismissing the admissions gleaned during cross-examination-such as leaving application form fields blank and the Bank's ensuing Jl2 loss of K951,300.00-the Court, 1n the Appellant's view, • deprived it of crucial evidence. 4.17 Consequently, the Appellant submits that by disregarding cross-examination evidence, the Lower Court misdirected itself. It should have evaluated all evidence, including admissions made under cross-examination, before arriving at its decision. Ground 6 4.18 On ground 6, the Appellant argues that the Court erroneously adopted the Respondents' "issues for determination" instead of limiting itself to the reliefs set out in the pleadings. 4.19 The Appellant notes that pleadings delineate the scope of the dispute and relief requested, and courts must not stray from these parameters. They cite William David Carlisle Wise v. E. F. Hervey Ltd7 emphasizing that pleadings serve to notify , each party of the other's precise case. They also reference ZESCO Ltd v. David Lubasi Muyambango, 8 where the Supreme Court stated the court's role is to determine whether the employer's disciplinary power was exercised "in due form," not to act as an appellate tribunal re-assessing facts. 4.20 In this case, the lower court allegedly reframed the matter to assess whether the dismissal was justifiable on its merits, rather than confining itself to whether the dismissal procedure was contractually or lawfully followed. The J13 Appellant asserts this approach effectively treated the matter as an unfair dismissal claim under the guise of wrongful dismissal, exceeding the scope of the pleadings and warranting appellate review. Ground 7 5.21 The key argument on ground 7 is that the Respondents neither led documentary nor oral evidence to show that pension benefits should be extended for the notice period. Informed by the principles outlined in Industrial Credit Company Ltd & Anor v. Malar Industries Ltd & 'Anor9, the Appellant postulates a party who asserts a fact must prove it. The Appellant contends that no such proof was presented; therefore, awarding pension contributions for the notice period was speculative. In other words, the Appellant asserts that the trial court's award of pension benefit for the notice period is unsupported by evidence and must be set aside. Ground 8 5.22 Under-ground 8, the Appellant contests the lower Court's award of 36 months' salary, arguing it surpasses the standard damages for wrongful dismissal and lacks any exceptional factors to justify such an amount. 5.23 The Appellant contends that the usual remedy for wrongful dismissal is wages or salary in lieu of notice, unless there is proof of traumatizing or humiliating circumstances Jl4 warranting increased damages. They rely on Times of Zambia Newspapers Ltd v. Lee Chisulo,10 which allows appellate interference where the lower court has misapplied the law or made an "entirely erroneous estimate" of damages. They also cite Patrick Chibulu v. Attorney General,11 emphasizing that a departure from the standard notice period formula requires demonstrable exceptional harm. 5.24 The Appellant points out that the lower court found the Respondents underwent a fair disciplinary process, contradicting any claim of an abrupt or traumatizing dismissal. Moreover, there was no evidence they were permanently barred from future employment, especially given their professional qualifications as accountants. Consequently, the Appellant submits that the lower court should have awarded, at most, the contractual notice period or payment in lieu. 6.0 RESPONDENTS' ARGUMENTS 6.1 In response to the appeal, the Respondents filed their heads of argument on 25th September 2023. Ground 1 6.2 The central issue is whether the Lower Court erred in law and fact by holding that the Respondents were wrongfully dismissed, despite acknowledging they underwent a fair disciplinary process in accordance with the Appellant's Disciplinary Code. JlS 6.3 The Appellant contends the Lower Court was inconsistent in finding wrongful dismissal after confirming the Respondents had received a fair disciplinary hearing. 6.4 The Appellant further argues that "wrongful dismissal" should be limited to procedural defects. In its view, once a fair process is followed, the dismissal cannot be deemed wrongful. 6.5 The Respondents counter that the Appellant's interpretation is too narrow, as it assumes wrongful dismissal arises only if disciplinary procedures are violated. They cite the Supreme Court case of Victoria Daka v. Petauke District Council, 1 which clarifies that wrongful dismissal extends beyond procedural shortcomings. The Supreme Court outlined seven instances in which an employee may be considered wrongfully dismissed. 6.6 In buttressing further the argument on this point, our attention has been drawn to the case of Kasonde v. Bank of Zambia12 which held that misconduct-based dismissals must be supported by proven grounds. If allegations (e.g., dishonesty) are unsubstantiated, the dismissal is wrongful. 6. 7 John Caiphus Mumba v. Society for Family Health 13 has been adverted to where the Supreme Court ruled that employees must not only be given a hearing but also be confronted with cogent evidence supporting the allegations J16 against them. If allegations are not proven, termination is unlawful, entitling the employee to damages. 6.8 It has been contended that wrongful dismissal is not limited to the form only, namely whether the procedure was breached; it also extends to examine whether there was a substratum of fact to support the dismissal. In support of this proposition, Attorney General v. Jackson Phiri14 was referred to which established that even when proper disciplinary procedures are followed, courts must examine if there was a factual basis for the dismissal. If no factual basis exists, the dismissal is considered wrongful. 6.9 Zambia Electricity Supply Corporation Limited v. David Lubasi Muyambango8 affirmed the Attorney-General vs Jackson Phiri14 (supra) ruling, emphasizing that an employer's exercise of disciplinary power is invalid if there is no factual basis for the action. The case of Emmanuel Simenda George Mumba v. Public Service Pensions Fund Board15 further clarified wrongful dismissal in two elements: 1. Form: Whether correct disciplinary procedures were followed; 2. Substance: Whether there was actual evidence to justify the dismissal. 6.10 It has been asserted that the criticism of the lower court's Ruling that there was no factual basis (substratum of facts) to justify the dismissal is unfounded. Despite the correct J17 procedural process being followed, the dismissal lacked substantive justification, making it wrongful. Ground 2 6.11 The Respondents contend that an appellate court should not interfere with a trial court's findings unless they are perverse or arise from a misapprehension of the facts. They rely on Nkhata v. Attorney General16 and Attorney General v. Achiume,17 which set strict criteria for overturning factual determinations. 6.12 They emphasize there was no evidence of negligence. The only remaining charge was negligence-since the charge of failing to follow procedures was dropped-and they assert they adhered to both the E-Channel Procedures Manual and the client's instructions. Thus, if they followed the employer's guidelines, they cannot be found negligent. 6.13 The Respondents maintain that the true cause of the financial loss was the Bank's own flawed internet banking system, as confirmed by the disciplinary committee and the bank's witness (DW2). Because they had no control over this system, the Respondents could not be held liable for the resulting loss. 6.14 Regarding the incomplete application form (Part 6 left blank), they argue that the E-Channel Support Procedures Manual specified only mandatory fields needed completion, and Part J18 6 was optional. The lower court accepted that the Cairo Branch Staff had duly verified the form. 6.15 The Respondents further note the system should have blocked transactions lacking an assigned authorizer. Instead, it processed them due to a technical failure, not an employee error. Consequently, they contend they should not be held accountable for a defect in the Bank's system. Ground 3 6.16 The Respondents contend that the Appellant's reliance on Clause 4.1 of the e-channels support procedure manual regarding mandatory fields is misplaced. Clause 4.1 states only that the assigned officer must check the form for completeness and verify that all mandatory fields are filled; it does not define which fields are mandatory. Notably, DW2 (the Appellant's own witness) admitted the manual lacks any indication of what qualifies as a mandatory field. 6.17 The Respondents therefore submit that the trial Judge rightly found no evidence of which fields were mandatory. They argue this finding should remain undisturbed. 6.18 Next, the Respondents assert that if all fields were mandatory, the clause would have simply said "all fields" must be populated. Instead, it references "all mandatory fields," implying that not every field is required. They invoke Jl9 the contra proferentem rule, whereby any ambiguity in the Bank's documentation must be construed in their favor. 6.19 The Appellant's Acting Head of Consumer Operations (DW2) testified that if any mandatory fields were left blank, the system would reject the application. However, the system accepted the account creation in this case, indicating all mandatory fields were in fact completed. The Respondents argue this contradicts the claim that the account was incomplete. 6.20 They further support the trial Judge's decision to accept PWl's testimony on mandatory fields while rejecting DW3's testimony due to insufficient documentary evidence. According to the Respondents, this was a factual determination by the trial Judge, which should not be overturned on appeal. Ground 4 6.21 Turning to ground 4, the Respondents maintain that the Appellant's challenge focuses on the lower court's factual findings, which the law does not permit unless those findings are perverse or based on a misapprehension of facts (Nkhata v. Attorney General16; Attorney General v. Achiume17. They stress that their duty was to create a customer's account according to the customer's instructions and that an application form would be returned only if it was improperly completed. J20 -. 6.22 The Respondents further state that the application form at issue was completed accurately, including all mandatory fields. Since the system successfully accepted the account creation, they argue that all required details were correctly provided. 6.23 On the question of the client's discretion to assign an authorizer role, the Respondents cite DW2's testimony (at page 732 of the ROA), confirming that the client could assign an authorizer at any time after the account's creation. Consequently, they assert there was no basis to reject or return the form, as it was valid. 6.24 In light of the foregoing, the Respondents urge the dismissal of this ground of appeal. Ground 5 6.25 In respect of ground 5, the kernel of the Respondents' argument is that submissions are not binding on courts. They reference the Supreme Court case Kitwe City Council v. William Nguni18 as authority. 6.26 They emphasized that the Appellant's reliance on submissions was misplaced as they do not constitute binding legal authority. They further argued that cross-examination cannot override clear documentary evidence, particularly the Bank's own policy documents regarding the creation of customer accounts. The court was merely reiterating the legal J21 principle that judgments must be based on the evidence on record and applicable law. 6.27 The Respondents dismissed the Appellant's argument as de minimis and labelled it as nit-picking. They contended that this ground of appeal did not go to the root or substance of the case and, therefore, lacked merit. Based on these points, the Respondent advocated for the dismissal of the appeal. Ground 6 6.28 Regarding ground 6, the Respondents' core submission is that pleadings set out the issues in dispute. They cite Mazoka and Others v. Mwanawasa and Others19 for this principle. 6.29 They argue that the lower court merely addressed the same matters already pleaded, albeit in rephrased form, ensuring alignment with the pleadings. The identified legal issues were intended to facilitate a fair resolution of the dispute. 6.30 The Respondents note that courts often introduce legal issues to aid in dispute resolution, reflecting a standard practice also taught in law schools. 6.31 They conclude that the lower court's determination adhered to the pleaded case, and they urge the dismissal of this ground of appeal for lack of merit. J22 ; Ground 7 6.32 The Respondents submit under ground 7 that pension benefits are a legal entitlement, and an employee who has not engaged in misconduct must receive a notice period or payment in lieu of notice. They rely on the principle that, at law, employers are obligated to either provide notice or compensate employees accordingly when terminating employment without cause. 6.33 They further state that the Appellants dismissed them summarily and without notice. Given the lower court's finding of unlawful dismissal, the Respondents maintain they are entitled to payment in lieu of notice, together with any pension benefits accruing during the notice period. 6.34 The Respondents emphasize that the calculation of pension benefits depends on contributions made to the National Pension Scheme Authority (NAPSA) and any other private pension plans. Accordingly, they argue the lower court properly awarded pension benefits covering the notice period, and they urge the appellate court to uphold this aspect of the judgment. Ground 8 6.35 On the eighth ground of appeal, the Respondents submit that the Lower Court was justified in awarding 36 months' salary as damages for wrongful dismissal, contrary to the J23 Appellant's claim that the award was excessive and deviated from the usual measure of damages. They cite several authorities demonstrating that courts have granted damages exceeding the common law standard 1n appropriate circumstances: Jacob Nyoni v. The Attorney-General20 Chintomfwa v. Ndola Lime Limited,21 Chilanga Cement Plc v. Kasote Singogo22 Barclays Bank Zambia Plc v. Dennis Chansa,23 Swarp Spinning Mills Plc v. Sebastian Chileshe,24 Konkola Copper Mines PLC v. Aaron Chimfwembe,25 and African Banking Corporation v. Bernard Fungamwango,26 among others. 6.36 The Respondents argue that their abrupt and distressing dismissal, coupled with being made scapegoats for the Appellant's flawed Internet banking system, justifies extending damages beyond conventional limits. 6.37 They rely on Dennis Chansa v. Barclays Bank Zambia Plc),27 where the Supreme Court noted that global economic downturns significantly impair a dismissed employee's prospects of securing a new job. 6.38 In David Banda v. Attorney General28the court found that inhumane treatment, distress, and limited job opportunities could warrant an award exceeding the usual measure of damages. J24 • 6.39 Citing these authorities, the Respondents argue that 42 • months' salary (plus all fringe benefits and other claims) should be awarded 1n line with recent developments, referencing David Banda27 (supra) as precedent for such an award. 6.40 They refute the Appellant's position that the dismissal was not abrupt, contending that summary dismissal without valid grounds is inherently traumatic. 6.41 The Respondents likewise dispute the Appellant's assertion that the lower court's finding of a flawed Internet banking system lacked support. They point to the evidence accepted by the court, which found them wrongfully dismissed as scapegoats. 6.42 Concluding their arguments, the Respondents submit that all grounds of appeal lack merit and urge the court to dismiss the appeal with costs. 7.0 Cross-Appeal Arguments by the Respondent Wrongful and Unfair Dismissal Argument 7 .1 The Respondents challenge the Lower Court's decision, arguing that their dismissal was both wrongful and unfair, contrary to the Lower Court's findings. They note that there was no factual basis for the dismissal under their employment contract, citing Kasonde v. Bank of Zambia12 as authority. Moreover, the Respondents contend the J25 •: dismissal contravened Section 52(2) of the Employment Code Act No. 3 of 2019. Once the Lower Court concluded there was no factual support for dismissal, the Respondents assert this placed the termination in breach of Section 52(2), making it automatically unfair. Lower Court's Inconsistency 7 .2 The Respondents highlight the Lower Court's inconsistent ruling in finding no valid reason for dismissal yet failing to declare it unfair. They argue that by recognizing the absence of a valid reason, the court effectively admitted unfairness. They further rely on Atlantic Bakery Ltd v. Zambia Electricity Supply Corporation Ltd,29 affirmed in Richard H. Chama & 213 others v. National Pension Scheme Authority & 8 others,28 establishing that a court must confine itself to the pleadings. According to the Respondents, the Lower Court should not have disregarded the unfair dismissal claim since it was expressly pleaded. The Respondents assert that the court contradicted the Atlantic Bakery29 (supra) principle by ignoring their unfair dismissal argument despite finding that the bank's financial loss resulted from a defective Internet banking system rather than employee negligence. J26 8.0 HEARING OF THE APPEAL ., 8.1 Mrs. Simachela began by confirming that the record of appeal and heads of argument were filed on 11th April 2023, and the Appellants would rely on them, with brief oral submissions. 8.2 On ground one, she submitted that the Supreme Court has consistently distinguished between wrongful and unfair dismissal. In Konkola Copper Mines PLC v Chileshe31 and Care International Zambia Ltd v Misheck Tembo, 30 the Court clarified that wrongful dismissal concerns breach of contract, while unfair dismissal relates to procedural irregularity. In this case, the Lower Court found that procedure was followed but still held the dismissal was wrongful, which was inconsistent with the law. 8.3 Regarding ground two, she argued that the Court erred in finding no factual basis for the dismissal. The substratum of facts existed and should not have been re-evaluated by the Court. She relied on Warren Chabala Chibale v Mopani Copper Mines32 and Wabei Nambula Mangambwa v ZCCM Investment Holdings, 33 which restrict trial courts from acting as appellate bodies on factual matters. 8.4 On grounds three and four, she submitted that the evaluation of evidence was unbalanced. The Appellant's position was that all parts of the E-Channels form were mandatory, but the Court preferred the Respondent's version without explanation. Citing Attorney General v Nkhata16 and ♦ J27 Attorney General v Marcus Achiume, 5 she argued this justified appellate interference. 8.5 Mrs. Chakoleka, on ground five, contended that the Court erred 1n disregarding facts revealed during cross examination. Referring to Cross on Evidence, she submitted that cross-examination serves both to extract admissions and to discredit the opposing case. The Respondents conceded key facts, including that a corporate account requires an authorizer and that the profile creation was irregular. 8.6 On ground six, she argued that the Court addressed issues beyond the pleadings and improperly assumed an appellate role. Ground seven challenged the award of pension benefits for the notice period without evidential basis. 8. 7 As for ground eight, the Appellants argued there were no extenuating circumstances justifying an award beyond the notice period. The Respondent underwent due process and was not subjected to any abrupt hardship. 8.8 In response, Mr. Kalokoni argued that the appeal was primarily based on factual findings, which appellate courts are generally reluctant to overturn. He permitted Mr. Kimena, making his first appearance, to address the Court. Mr. Kimena framed the appeal around three key issues: (i) whether wrongful dismissal can occur without proof of cause; (ii) the definition of negligence in employment law; and (iii) who bore responsibility for the financial loss. Citing Victoria J28 Daka v Petauke District Councill, Mr. Kimena submitted that wrongful and unfair dismissal may overlap where dismissal for cause lacks factual justification. He contended that negligence requires a breach of the conditions of service and maintained that the Respondents had followed proper procedure, absolving them of liability for the loss. 8.9 After Mr. Kimena concluded his submissions, Mr. Kalokoni addressed the Court on additional issues. He referred to Section 52 of the Employment Code Act, which is rooted in Article 158 of the International Labour Convention, and argued that it should be interpreted consistently with international labour standards. He further submitted that damages for unfair dismissal are not confined to the notice period, relying on the precedent in Care International Zambia Ltd v Misheck Tembo30 to support this position. 8.10 In reply, Mrs. Simachela contended that grounds one and eight raise legal, not factual, issues. She argued that, given the Court's finding of wrongful dismissal, the proper remedy should have been limited to damages equivalent to the notice period. 8.11 Both parties confirmed that they would rely on their filed Heads of Argument and written submissions in respect of the cross-appeal. J29 9.0 ANALYSIS AND DECISION 9 .1 We have meticulously examined the record and the submissions of Counsel in relation to the appeal before us. Ground 1 Wrongful dismissal - whether tenable when disciplinary process followed? 9.2 The crux of the Appellant's submission under ground 1 is whether the Lower Court erred by finding wrongful dismissal even after acknowledging that the Respondents underwent a fair disciplinary process under the Appellant's Code. The Appellant contends that once due process is followed, a dismissal cannot be deemed wrongful. 9.3 The Respondents maintain that no negligence can be attributed to them because they followed the E-Channel Procedures Manual, and the only remaining charge (negligence) lacked substance given that the failing-to-follow procedures allegation was dropped. 9.4 In our jurisdiction, wrongful dismissal occurs when an employer terminates an employee's contract in violation of its terms or without adhering to due process. Several notable cases have shaped the legal landscape regarding wrongful dismissal including Undi Phiri v. Bank of Zambia30 where the Supreme Court held that wrongful dismissal arises from the employer's failure to follow correct procedures as stipulated in the employment contract or relevant laws. The court emphasized that the appropriate remedy in such J30 instances is compensation in the form of damages, agreed upon by both parties. 9.5 In Care International Zambia Limited v. Misheck Tembo30 he Supreme Court distinguished between wrongful and unfair dismissal. Wrongful dismissal pertains to breaches of contractual terms related to the termination process, while unfair dismissal relates to the merits or reasons for the dismissal, often governed by statute. The court cautioned against the careless use of terms like 'unlawful dismissal', 'unfair dismissal', 'unlawful termination of employment', and 'wrongful dismissal', noting that although they all relate to the cessation of employment, they connote different things. 9.6 The issues that arise for determination in the 1st ground of appeal are: 1. Whether the Court below misdirected itself in law by finding that the Respondents were wrongfully dismissed, despite determining that the Appellant had followed the Disciplinary Code and accorded the Respondents a fair procedure. 2. Whether the lower Court erred by reviewing the substantive reasons for dismissal under the heading of wrongful dismissal rather than unfair dismissal. 9.7 Wrongful dismissal is fundamentally a common-law action that focuses on whether the employer breached the terms of the employment contract, particularly regarding procedural J31 compliance (i.e., failing to give proper notice or failing to follow a contractually mandated disciplinary procedure). 9.8 This principle has been expounded in Victoria Daka v Petauke District Council, 35 where the Supreme Court emphasized that, unless the dismissal is "for cause," the inquiry in wrongful dismissal is primarily whether due contractual or procedural requirements were satisfied. 9.9 In the present matter, the lower Court unequivocally stated that the Appellant "subjected the Plaintiffs [Respondents herein] to a fair disciplinary process." This finding was made following a thorough review of the evidence, including the Disciplinary Code, record of disciplinary proceedings, and witness testimony. 9.10 Once a court of competent jurisdiction makes a finding that the procedure leading to a dismissal conformed to the contractual terms and provided a fair hearing, then there is, on the face of it, no breach in the sense of procedural fairness. 9 .11 The Court below proceeded, however, to examine the adequacy or merits of the reasons for dismissing the Respondents. That exercise, in effect, placed the matter on the footing of assessing fairness or justification of the employer's decision, a hallmark of unfair dismissal claims. 9.12 While it is recognized that if an employer purports to dismiss an employee "for cause," a court may consider whether there was "a substratum of facts" to justify that cause, such an analysis is typically framed under unfair dismissal or • J32 statutory criteria in jurisdictions that incorporate fairness ., tests into their legislation. 9.13 Here, the lower Court expressly concluded that the matter turned on wrongful dismissal, not unfair dismissal, and declared it would "not pay attention to the arguments on unfair dismissal." Having done so, it erred by effectively reviewing the substantive merits of the reasons for termination under the rubric of wrongful dismissal. 9.14 The Supreme Court in Supabets Sports Betting v BatrJ.ke Kalimukwa,2 reaffirmed that "inquiry into whether or not a dismissal was wrongful is restricted to a consideration of procedural lapses ... [whereas] unfair dismissal looks at the substance or merits of the dismissal." 9.15 Given the lower Court's own finding that the Respondents had been subjected to the correct disciplinary procedure, there is no basis upon which to conclude that the contractual or procedural requirements were breached. 9.16 Consequently, we find that the trial Judge's determination that the dismissal was "wrongful" cannot stand in light of the concurrent finding that the dismissal procedure was fair and consistent with the Disciplinary Code. 9 .1 7 The Court below misdirected itself by conflating the procedural inquiry under wrongful dismissal with a substantive inquiry akin to unfair dismissal. Once it found that the Appellant followed its Disciplinary Code properly and accorded the Respondents a fair hearing, the determination J33 of wrongful dismissal, in the sense of a breach of contract, was unsustainable. 9.18 We therefore agree with the Appellant that ground one of the appeal has merit and must be allowed. Ground 2 Was there substratum of facts established? 9 .19 Having resolved the first ground, we now turn to the second ground. The essence of the Appellant's argument on this ground is that the Court below erred by failing to recognize the factual basis (the incomplete forms and resulting fraudulent transfers) that reasonably justified the Appellant's decision to dismiss the Respondents for negligence. 9.20 The Respondents have argued there was no evidence of negligence because they followed both the E-Channel Procedures Manual and the client's instructions, making the sole remaining charge of negligence unfounded after the related allegation of failing to follow procedures was dropped. They further contended that the financial loss was caused by a flaw in the Bank's Internet banking system, confirmed by the disciplinary committee and the Bank's own witness, so the employees could not be held responsible. 9.21 It is clear that the second ground of appeal centers on: 1. Whether the trial court was correct in concluding that the Bank's system flaw, rather than the Respondents' actions, was the proximate cause of the financial loss. J34 2. Whether the trial court erred in finding that there was no factual basis or evidential foundation to support the Respondents' dismissal for negligence of duty. 9.22 It is trite law, as stated in Nkhata v Attorney General16 and Attorney General v Achiume17 that an appellate court will , not disturb or overturn a trial court's findings of fact unless it is shown that such findings were perverse, made in the absence of relevant evidence, were premised on a misdirection of law or fact, or are so unreasonable and unsupported by the record that no reasonable tribunal could have arrived at the same conclusion. 9.23 The record shows that the Respondents processed the UNZA Press internet banking application as per the Bank's E Channel Support Procedures Manual. The lower court had evidence before it that, according to clause 4.1.1 of the Manual, a form is considered "complete" so long as the "mandatory fields" are populated and the branch staff have verified the applicant's signatures. The undisputed trial evidence indicated that UNZA Press did not list any authorisers in Part 6, and that the Bank's own staff at Cairo Branch accepted and verified the form, thereby treating it as complete. 9.24 The trial court further relied on evidence that the Bank's internet banking system was designed so that any transaction initiated by a mere "initiator" role (with Tiers set at zero) would "hang" until an authorised user approved it. Contrary to this design, the transaction in question I J35 immediately went through. The trial court found, and the record supports, that a similar technical flaw had arisen with a separate corporate account (Global Industries), prompting the Bank's own disciplinary committee and IT investigations to note a "deficiency" or malfunction in the system. 9.25 It is not in dispute that the Bank lost a substantial sum of money because the transaction went through without an authorised signatory. The question is whether that was due to the Respondents' negligence or a breakdown in the Bank's IT controls. On this point, the trial court explicitly found that the system's flaw, rather than the alleged misconduct of the Respondents, occasioned the loss. 9.26 Indeed, the lower court concluded the Respondents "followed the E-channel Procedures Manual" and that the system's failure to block or suspend the transaction in the absence of a designated authoriser caused the Bank's monetary loss. The trial court therefore determined the Respondents could not be blamed for a technical failure beyond their control. 9.27 The Appellant cites the principle that employment relationships are based on trust and that serious errors by an employee may justifiably erode that trust (C himanga Changa Limited v Stephen Chipango Ngombe4 While that . principle stands, it presupposes culpable conduct or negligence on the part of the employee. 9.28 Here, the trial court accepted evidence that the Respondents acted in line with their established procedures, including the instructions from the client (who retained the right to J36 designate authorisers at a later date), and that they could not have foreseen or prevented the system glitch that allowed the transaction to be carried out without final authorisation. 9.29 The Appellant has not demonstrated that the trial court's factual conclusions were unsupported by evidence or rooted in a serious misdirection. To the contrary, there was ample testimony, both from the Respondents and from the Appellant's own witnesses, showing that the only official policy for creating internet banking profiles was the E channel Procedures Manual and that the system should have automatically blocked any transaction lacking an authorised signatory. 9.30 In these circumstances, it cannot be said that the trial court's findings of fact were perverse or wholly unsupported. As such, in line with Nkhata v Attorney General16 and Attorney General v Achiume,17 this Court finds no valid basis upon which to disturb the trial court's assessment of the evidence. 9.31 The trial court correctly concluded that there was no factual basis to hold the Respondents responsible for the Bank's loss, particularly where the Respondents adhered to the Bank's own E-channel Procedures Manual, and the system itself malfunctioned. The Bank's prior knowledge of a similar system deficiency on the Global Industries account underscores the conclusion that it was the Bank's flawed IT architecture, rather than any negligence by the Respondents, which caused the fraud on the UNZA Press account. J37 9.32 Accordingly, we find no merit in this ground of appeal and it is dismissed. Grounds 3 & 4 Evidence of mandatory field on application forms/ Were respondents bound to execute instructions as received from Appellant's clients? 9.33 The nub of grounds 3 and 4 is that the Appellant's E Channels Procedure allegedly requires the assigned staff to ensure "all mandatory fields" are populated, with the Appellant insisting that all relevant sections, especially the authorizers' section, must be completed. However, the Court found no clear definition of "mandatory fields" and thus dismissed the Appellant's claim, opting instead to accept the Respondents' argument despite lacking documentary support. 9.34 The Respondents maintain that the Appellant's assertion about mandatory fields lacks merit because Clause 4.1 of the e-channels support procedure manual does not specify which fields are mandatory, and the trial Judge correctly found no evidence to define them. They further argue that the phrase "all mandatory fields" indicates not all fields must be completed and that any ambiguity in the Bank's documents should be resolved in their favor under the contra proferentem rule. 9.35 The issues for resolution under grounds 3 and 4 are: J38 1. Whether the trial court erred in concluding there was no evidence of which fields were mandatory on the internet banking application form. 2. Whether the trial court erred by holding that the Respondent was bound to execute the client's instructions as received and that the forms were complete for the purposes of creation. 9.36 It is trite law that an appellate court will not lightly interfere with findings of fact by a trial court unless it is demonstrated that the trial judge erred in principle, misapplied or misapprehended the evidence, or arrived at a conclusion that no reasonable tribunal, properly directing itself, would have reached. 9.37 The Appellant maintains that the trial court overlooked documentary evidence establishing that all fields on the application form were mandatory. However, upon perusal of the Record of Appeal, it is clear, and was not seriously disputed, that the E-Channels Support Procedure Manual does not define or list "mandatory fields." It merely stipulates that any assigned officer must ensure that "all mandatory fields" are completed. 9.38 Given the absence of a clear definition in the manual, the trial court relied on witness testimony, including that of DW2 and PWl. The trial court was entitled to find that, since the system accepted the application, those fields absolutely necessary to creating the account were indeed filled out. J39 9.39 We see no error or misdirection in the trial court's reliance on this reasoning. The manual itself uses language that suggests not every field is mandatory, otherwise it would have stated "all fields" must be filled out, without qualification. Findings on Respondent's Obligation to Execute Instructions 9.40 In ground 4, the Appellant further argues that the trial court erred in holding that the Respondents were bound to execute the client's instructions "as received." 9.41 However, there was evidence before the trial court, including from PW2 and DW2, that if a form genuinely lacked any information in fields deemed mandatory; the Appellant's system would reject the creation. Conversely, if the system accepted the creation, it signalled that all necessary fields were indeed populated. 9.42 Furthermore, the Respondent's evidence established that the client, once set up on the internet banking system, could subsequently choose to add or refine user roles (such as an "Authoriser") at a later date. Therefore, it was not incorrect or unreasonable for the trial court to conclude that the Respondents followed the instructions 1n a manner consistent with its operational procedures. J40 • Assessment of Alleged Unbalanced Evaluation of Evidence 9.43 The Appellant contends that the trial court improperly accepted PWl 's testimony while rejecting that of DW3 on the basis that DW3's testimony was not supported by documentary evidence. A closer look reveals, however, that the trial court applied the same standard to all witness testimony, looking for corroboration in the manual and the practical operation of the system. 9. 44 The trial judge found PW l's testimony that the system rejects incomplete forms consistent with the undisputed fact that the system did not reject this particular application. By contrast, DW3's assertion that "all fields" were mandatory lacked any documentary anchor in the E-Channels Support Procedure Manual, which only mentions "all mandatory fields" without defining them as inclusive of all form sections. 9.45 Having reviewed the record and submissions from both parties, we find that the trial court did not err in law or in fact in its determination of whether the form was complete or whether the Respondents were bound to execute the client's instructions. The trial court's findings are supported by evidence on record, and no misdirection has been established. 9.46 Accordingly, we hold that grounds 3 and 4 of this appeal are without merit and ought to be dismissed. J41 Ground 5 Facts elicited in cross-examination cannot build a party's case-True or false 9.47 On ground 5, the Appellant argues that the lower court erred by holding that facts drawn from cross-examination cannot support a party's case, maintaining instead that cross examination can yield facts favourable to the cross-examiner. 9.48 In reaction the Respondents have stressed that the Appellant's reliance on submissions was flawed because such submissions are not binding legal authority on a court, and cross-examination cannot override the Bank's policy documents. The court merely reaffirmed that judgments must rest on the recorded evidence and applicable law. 9.49 The principal question for determination is whether the trial court erred in holding that evidence obtained through cross examination may not be used to build or support a party's case. 9. 50 In order to answer this question, we will begin by examining the principle governing cross-examination. 9.51 It is a fundamental principle of evidence that cross examination serves multiple purposes, including discrediting the opposing party's witness but also obtaining admissions or clarifications that may reinforce the cross-examining party's position. Evidence that emerges from cross examination can be as probative as that led in examination in-chief or re-examination, provided it is relevant and J42 admissible. This principle 1s recognized both in our jurisdiction and in various common law precedents (see, for example, Fulton Bank v. Stafford6 cited by Counsel for the , Appellant. In the aforecited case, the court acknowledged that a cross-examining party "may establish his defence by [the witness] without calling any other witnesses ... ". 9.52 The lower court stated that "the law is trite that cross examination does not build a party's case." However, it cited no statutory provision or case authority to support this proposition. By contrast, the authorities make clear that supportive cross-examination is not only allowed but is often essential where a party seeks admissions or clarifications from the opposing side's witnesses. This is a routine and accepted trial practice: the cross-examiner may ask questions that, if answered in a manner favorable to the cross-examiner, will help establish facts or fill gaps in the cross-examiner's overall case theory. 9.53 So long as evidence elicited in cross-examination is relevant to a fact in issue and properly admitted under the rules of evidence, a trial court should weigh and consider that evidence. Testimony does not lose its probative value merely because it was introduced through cross-examination, as opposed to direct examination. 9.54 For the foregoing reasons, we find ground 5 meritorious and uphold it. J43 Ground 6 Parties bound by pleadings 9.56 Now shifting focus to the sixth ground of appeal in which the Appellant has submitted that the Court resolved the case using the Respondents' framed "issues for determination" instead of limiting itself to the pleaded reliefs. 9.57 The Respondent contends that the issues the lower court addressed were merely reworded versions of the pleaded claims and thus aligned with the pleadings. They maintain that identifying those issues was intended to ensure a fair resolution of the dispute. 9.58 The function of pleadings has been well elucidated in a myriad of cases such as Anderson Kambela Mazoka and Others vs Patrick Mwanawasa and the Attorney General19 where the Supreme Court held that: "The functions of pleadings are to give notice to the case which has to be met and defined the issue on which the Court will have to adjudicate in order to determine the matter in dispute between the parties. Once the pleadings have been closed, the parties the bound by their pleading and the court has to take them as such." 9.59 In summary, the aforecited case stipulates that pleadings notify the opposing party of the case they must address and define the issues for the Court to adjudicate. Once pleadings are finalized, the parties are bound by them, and the Court must take them as presented. J44 9.60 The case of Thorp vs Holdsworth34 shed more light on the purpose of pleadings wherein Jessel M.R. said at page 639: "The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules ... was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on trial, what the real point to be discussed and decided was. The whole meaning of the system is to narrow the parties to definite issues and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing." 9.61 We have scrutinized the issues that were pleaded which are on pages 83 - 89 of the ROA and compared them with the issues that were framed for determination by the Court below. These included, inter alia, a declaratory Order that the Respondents were wrongfully and unfairly dismissed from employment, payment of 36 months' salary as damages for unfair and wrongful dismissal, payment of pension benefits during the notice period and damages for mental torture. It is our considered view that the lower court's chosen issues were essentially restatements of the pleaded claims, ensuring they remained within the scope of the pleadings. The legal issues identified by the court were specifically tailored to clarify the matters in dispute, thus facilitating a fair and just resolution. J45 9.62 The Court merely rephrased the pleaded claims, staying within the dispute's parameters. To decide whether the dismissal was unfair or wrongful, the court had to assess the basis for the action and did so by framing the issues for determination, otherwise, it could not properly address the pleaded contentions. We maintain our position that these carefully identified legal issues clarified the matters in dispute. 9.63 We align ourselves to the cases of Mazoka (supra) and Thorp (supra) which establish that pleadings serve to bring the parties to a clearly identified issue. The rules prevent the expansion of issues, ensuring that both parties know precisely what point is to be discussed and decided at trial. By narrowing the focus of the dispute, pleadings help reduce expense, delay, and unnecessary testimony. In the case in casu, the pleadings were clearly articulated and the framing of the issues was within the parameters of the pleadings. 9.64 In light of the foregoing, the attack on the trial Judge's decision appears to be without merit. Ground 7 Award of pension benefits 9.65 On ground 7, the main contention by the Appellant is that the Respondents did not present documentary or oral evidence that pension benefits should extend for the notice period. J46 9.66 The Respondents assert that pension benefits are a legal entitlement and that an employee without misconduct is owed a notice period or payment in lieu. 9.67 Our starting point is; did the Respondents provide any evidence regarding their pension benefits? We have combed through the record and are inclined to agree with the Appellant that there was no evidence led to substantiate this claim. The burden of proof in our jurisdiction is on a • preponderous of probability and the onus lies on he who alleges to prove. The Supreme Court in the case of Kunda vs Konkola Copper Mines Plc35 opined as follows: "He who alleges must prove the allegations. The principle is so elementary that the court had on a number of occasions to remind litigants that it is their duty to prove the allegations." 9.68 The same principle was repeated in the case of Industrial Credit Company Limited & Another vs Malar Industries Limited & Another9 Having established that the . Respondents did not adduce any evidence with regard their pension benefits, we find the decision by the trial Judge to be erroneous. As an appellate court, we should not frivolously interfere with findings of fact. However, we are compelled to upset the decision on the basis of the authority of The Attorney General v. Marcus Kampumba Achiume17 which , held unless we are satisfied that the findings in question were either perverse or made in the absence of any relevant J47 ' evidence or upon a misapprehension of the facts or that they u, were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make. This is on account of it being made in the absence of relevant evidence and therefore meets the threshold set out in the aforecited case. 9.69 Ground 7 is found to be meritorious and we uphold it. Ground 8 Award of 36 months' salary as damages 9. 70 In the 8th ground of appeal, the Appellant challenges the lower Court's award of 36 months' salary, arguing it departs from the standard remedy for wrongful dismissal. They assert that damages should be limited to wages or salary in lieu of notice unless there are traumatizing or humiliating circumstances, which are absent here. 9.71 On the other hand, the Respondents contend that the Lower Court was justified in awarding 36 months' salary as damages for wrongful dismissal, countering the Appellant's claim that the sum was excessive and strayed from standard damage measures. 9. 72 Damages for wrongful dismissal are generally capped at the notice period unless special circumstances justify a higher award. This approach is supported by several precedents, notably Jacob Nyoni v The Attorney-General2°, which sets damages from notice pay up to two years' salary, and J48 Chintomfwa v Ndola Lime Limited21 which recognizes , exceptions when job prospects are bleak. Chilanga Cement Plc v Kasote Singogo22 reaffirms that courts may exceed common law damages in deserving cases, while Dennis Chansa v Barclays Bank Zambia Plc26 highlights the need for increased awards as job searches become longer. In African Banking Corporation v Benard Fungamwango25 , we too departed from the normal measure of damages when we upheld an award of 36 months' salary due to the banking sector's limited employment opportunities. 9. 73 At common law, the usual remedy for wrongful dismissal is an award reflecting the notice period (or pay in lieu of notice). However, Times of Zambia Newspapers Ltd v. Lee Chisulo10 recognizes that an appellate court may not interfere with an award of damages unless it is based on a misdirection or is so inordinately high (or low) as to make it an entirely erroneous estimate. 9. 7 4 Where circumstances indicate serious prejudice to an employee, such as reputational damage, emotional distress, or a significantly compromised ability to find alternative employment Zambian courts have, on occasion, upheld awards exceeding the conventional standard. Jacob Nyoni v. The Attorney-General20 and Chintomfwa v. Ndola Lime Limited21 illustrate scenarios in which courts factored in the prospects of re-employment and any humiliating or traumatic aspects of the dismissal. J49 9. 75 In the present case, the record discloses that the Respondents were summarily dismissed under circumstances the lower Court deemed wrongful and unduly severe, particularly in view of evidence suggesting they were made "scapegoats" for systemic failures. The Court found that these circumstances, coupled with challenges in the job market, especially in the specialized field of professional accountancy, merited a more substantial quantum than simple notice. 9.76 The question before this Court is not whether we would have awarded 36 months ourselves in the first instance, but whether the lower Court's award represents such a departure from principle as to be "entirely erroneous." In view of the authorities endorsing a broader assessment, Chilanga Cement Plc v. Kasote Singogo22 and African Banking Corporation v. Bernard Fungamwango,25 among others, and the uncontested evidence that the dismissal was sudden and stigmatizing, this Court is not satisfied that the lower Court improperly exercised its discretion. 9.77 This Court is guided by Patrick Chibulu v. Attorney General, 11 which acknowledges that damages beyond the notice period may be warranted if special harm or exceptional circumstances are established. The Respondents' evidence of reputational harm and the prospect of significantly limited re-employment opportunity, given Zambia's economic climate, was accepted by the trial judge. It cannot be said that the award was arbitrary or without justification. J50 9.78 In light of the foregoing, this Court finds no misdirection by the lower Court in awarding 36 months' salary for wrongful dismissal. While the sum is indeed above the standard measure for wrongful dismissal, the factual and legal bases provided sufficiently. distinguish this case from ordinary circumstances that would limit damages to a simple notice period. 9.79 Accordingly, Ground 8 of the appeal is hereby dismissed for want of merit. The award of thirty-six (36) months' salary, as determined by the lower Court, stands undisturbed. 10.0 Cross-Appeal Was wrongful and unfair dismissal established? 10.1 The Respondents argue that once the trial court found no factual basis for their termination, their dismissal should have been deemed both wrongful and automatically unfair under Section 52(2) of the Employment Code Act No. 3 of 2019, as confirmed by Kasonde v. Bank of Zambia12. They further contend that by disregarding the unfair dismissal claim, despite determining the bank's loss arose from a defective system rather than employee negligence, the court not only contradicted its own finding but also violated the principle that a court must confine itself to the pleadings, as established in Atlantic Bakery Ltd v. Zambia Electricity Supply Corporation Ltd and reaffirmed in Richard H. Chama & 213 others v. National Pension Scheme Authority & 8 others.2s J51 10.2 We have reflected on the arguments advanced and in view of our findings in grounds 1 and 2 that the malfunctioning of the Appellant's system is what led to the loss and that it could not be pinned on the Respondents alleged negligence, the dismissal was unfair but not wrongful. We have expressed our views on the distinction between wrongful and unfair dismissal and have found that the finding that the dismissal was wrongful had no legal leg to stand on. The unfair dismissal claim on the other hand succeeds based on our reasoning in the earlier part of this judgment specifically paragraphs 9.2 - 9.17. 11.0 Conclusion 11.1 To restate, our decision, is summarized as follows: Main Appeal 1. Ground 1: Meritorious - The lower court erred by conflating wrongful and unfair dismissal when assessing the adequacy of reasons for dismissal. 2. Ground 2: Lacks merit - The trial court correctly held the Respondents were not liable for the Bank's loss, as the fraud stemmed from a defective IT system, not their negligence. 3. Ground 3: Unmeritorious -The trial court rightly found that system acceptance confirmed all mandatory fields were completed; the manual lacked clarity on required fields. • J52 4. Ground 4: Dismissed - The trial court correctly found the form complete, and that Respondents were obligated to act on the client's instructions. 5. Ground 5: Allowed - Relevant and admissible evidence from cross-examination is as probative as that from examination-in-chief or re-examination. 6. Ground 6: Fails -The trial court properly framed issues within the pleadings; the challenge has no merit. 7. Ground 7: Upheld - The trial court erred in awarding pension benefits without evidentiary support. 8. Ground 8: Dismissed - The trial court was correct in awarding 36 months' salary due to exceptional circumstances, including reputational damage and limited job prospects. Cross-Appeal 1. Ground 1: Succeeds - The lower court erred by not declaring the dismissal unfair despite finding no factual basis for the dismissal. 2. Ground 2: Allowed -The lower court's refusal to declare the dismissal unfair is set aside; this Court finds the dismissal was unfair. J53 12.0 Costs 12.1 The Respondents are awarded costs of this appeal, as the cross-appeal succeeded and the Appellant achieved only partial success in the main appeal. Costs are subject to taxation if not agreed upon. M.M. Kondolo, SC COURT OF APPEAL JUDGE ········~ ;············· K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE