Chisenga Sichande v Finca Zambia Limited (2015/HP/1379) [2020] ZMHC 412 (31 December 2020)

IN THE HIGH COURT FOR ZAMBIA 2015/HP/1379 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA AND FINCA ZAMBIA LIMITED DEFENDANT BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN OPEN COURT, ON 31 8 T DECEMBER, 2020. For the Plaintiff Mr. M Chitundu - Messrs. Barnaby & Chitundu Advocates For the Defendant: Mr. W. Phiri & Ms. C. S. Mulomba - In-House Counsel JUDGMENT CASES REFERRED TO: 1. Zambia Railways Limited v Pauline S Mundia, Brian Sialumba (2008) vol. 1 Z. R. 287 (S. C); 2 . Care International Zambia Limited v Misheck Tembo - Selected Judgment No . 56 of 2018; 3. Zambia National Provident Fund us. Y. M. Chirwa (1986) ZR 70; 4. Kitwe City Council v William Ng'uni (2005) Z. R. 57; Jl I r ci g e 5. William David Carlisle Wise v EF Harvey Limited (1985) Z. R. 179; 6. The Attorney General v Roy Clarke (2008) Vol. 1 Z. R. 38; 7. Anti-Com. J.ption Commission v Charles Sambondu - Appeal No. 054/ 2013; 8. Zambia Telecommunication Limited v Penias Mwale and another - Appeal No. 129/2018; 9 . Birdman v Jones (1845) 7 QB 742; 10. Attorney General and others v Phiri - SCZ Appeal No. 161/2014; 11. Mazoka and Others v Mwanawasa and Others (2005) Z. R. 138; 12. Blyth v Birmingham Water Works Company (1856) 1 lEx 781; and 13. Naomi Malama v Edwin Chinda Chisenga - Appeal No. 135/ 2017. OTHER WORKS REFERRED TO: 1. Mwenda W. S., Employment Law in Zambia: Cases and Materials, (2004), {UNZA Press, Lusaka; and 2. Bullen and Leake and Jamb's Precedents of Pleadings, Volume 1, 16th edition (2004). INTRODUCTION 1.1 This is a Judgment in respect of the Plaintiff's claim, inter alia, for a declaration that he was unlawfully and unjustly dismissed from employment. BACKGROUND 2.1 The background to this matter as gleaned from the Pleadings is that the Plaintiff was employed by the Defendant as an Accountant, sometime in 2012. In 2013, the Plaintiff was charged with the offence of fraud and contravening the Defendant's Disciplinary Code. Subsequently, the Plaintiff was dismissed from employment. The Plaintiff felt that he was unlawfully and unjustly dismissed from employment. It is against J2 I P age this backdrop that he commenced these proceeding against the Defendant. PLEADINGS 3.1 The action was commenced by way of Writ of Summons, issued on 19th August, 2015 and endorsed with the following reliefs: - 1. A declaration that the Plaintiff was unlawfully and unjustly dismissed from employment; 2. An Order for the Defendant to pay the sum of K308,902.24, being dues for the remainder of his contract of employment that the Plaintiff would have earned had it not been for the unlawful and unjustifiable dismissal from employment; 3. A further order for the Plaintiff to be paid all the remaining (half) earnings lost during his suspension from employment; 4. Damages for malicious prosecution; 5. Damages for false imprisonment; 6. Damages for defamation of the Plaintiff by way of criminal prosecution; 7. Any other reliefs the court may deem fit under the given circumstances; 8. Interest; and 9 . Costs. 3.2 The gist of the Statement of Claim filed on 19th August, 2015, is that on 16th October, 2012, the Plaintiff was offered a three-year contract of employment effective on 14th November, 2012. He served in the capacity of J3 I P age Accountant - Financial Reporting, until 13th August, 2013 , when he was charged with the offence of fraud and contravening Finca Zambia Limited Disciplinary Code, which led to his suspension from employment on half salary, among other sanctions, effective 14th August, 2013. Following the charge letter, the Plaintiff exculpated himself of the said charges and subsequently appeared before the disciplinary committee established to hear the matter on 13th September, 2013, where he further exculpated himself of the said charges. The Plaintiff asserts that the Disciplinary Committee convened on 20th September, 2013, resolved to summarily dismiss the Plaintiff from employment without giving consideration to the Plaintiffs exculpation that had exonerated him of all the charges . 3.3 He averred that following the said dismissal, the Defendant on or about the 29th November, 2013, lodged a criminal complaint before Zambia Police, which saw him being charged and prosecuted before the Courts of ({j Law, with four counts of fraudulent accounting and four counts of theft by servant, based on the facts on which the Plaintiff was dismissed from employment, but was acquitted on 25th June, 2014. The Plaintiff stated that Q __ despite being acquitted by the Court of all the charges against him and engaging the Defendant on the same ' the Defendant had to date not reinstated him. J4 I Pa g e 3.4 The Plaintiff alleges that due to his arrest, as well as the prosecution that he underwent, his reputation among his colleagues in the profession, friends, relatives, church mates and the public at large has been injured. He asserts that the prosecution was malicious as it had no probable cause of succeeding on the face of it, as no funds were stolen by the Plaintiff nor did he engage himself in false accounting. The Plaintiff further asserts that prior to his prosecution, he was held in prison by the Zambia Police Service, at the instance of the Defendant, without justification as the complaint on which he was arrested was without probable cause. Consequently, the Plaintiff alleges that he has suffered serious loss, inconvenience and damage in respect of his career, earnings and reputation. 3.5 The substance of the Defendant's Amended Defence and Counter-claim filed on the 14th of September, 2015, is that the Plaintiff was employed on the 4 th of November, 2012, as an Accountant-Financial Reporting responsible for the supervision of four accountants namely, Emmanuel Mupeta; Dickson Changwe; Richard Kabuya; Evans Mulenga; and one Financial Accountant, namely Douglas Sikabala. The Defendant's job description was outlined in part as follows: - i) To review the head office transactions in line with the accounting policies and procedures which included ensuring that vouchers are raised for internal and external payment; JS I P age ii) To manage the banlc reconciliation by preparing banlc reports in line with accounting policies and procedure; iii) To process payments in line with accounting policies and procedures. 3.6 The Defendant averred that the Plaintiff agreed and acknowledged having read and understood the Defendant's Disciplinary Code and Grievance Procedure and the Staff Handbook, that among other things, defined the rules of the contractual relationship. It was the Defendant's assertion that contrary to the agreed terms and conditions of the contract of employment, the Defendant wilfully neglected, omitted and blatantly breached the Defendant's accounting and reconciliation policies and procedure, resulting in his suspension without pay and dismissal according to the Defendant's Disciplinary Code and Grievance Procedure. 3.7 The Defendant averred that on or about 12th August, 2013, an irregularity was noted on a Savers Account number 91118705 prompting internal investigations which revealed a pattern of unauthorised movement of funds from the system's suspense account to various newly opened savers' accounts with no supporting documentation whilst the Plaintiff was acting Chief Accountant. The Defendant outlined instances of alleged irregularities in the accounting process of the accounts department supervised by the Plaintiff at the time, which resulted in extensive internal investigations JG I P ag e being conducted by the Defendant into other transactions in the department. 3.8 The Defendant further outlined four instances of alleged irregularities that where discovered following the investigations. It asserts that the said errors and irregularities were inconsistent with the Defendant's accounting policies and should have been noted by the Plaintiff in the course of performing his daily duties as Accountant-Financial Reporting at the time. It was also the Defendant's assertion that the Plaintiff failed to justify the irregular transactions conducted in the system and the lack of monitoring of his department and his subordinates. 3.9 The Defendant stated that the written communication dated 15t h August, 2015, indicates that the Defendant had shared some of the money that was withdrawn in the system on 12th August, 2015, with his subordinates. It was the Defendant's assertion that fallowing the charge issued, the Plaintiff failed to exculpate himself which resulted in his dismissal from employment on 23rd September, 2015. 3.10 The Defendant further averred that the Plaintiff was n egligent in the performance of his duties in that he failed to supervise and review the head office transactions in line with the accounting policies and procedures and was in blatant breach of the terms and conditions of his employment. Furthermore, it was averred that due to the Plaintiff's conduct, the J71 P age Defendant suffered financial loss amounting to approximately US $52,318.00 at the time and reputational injury and was therefore justified in dismissing the Plaintiff. It was asserted by the Defendant that the complaint issued to the Zambia Police against the Plaintiff was justified and was not in any way malicious nor defamatory. 3.11 By the Defendant's Counter-claim, it was averred that the Plaintiff breached each and all of the terms and conditions of employment alluded to in its Defence in that: - i) The Plaintiff authorised the movement of funds from the system's suspense account to various newly opened savers account with no supporting documentation or payment vouchers resulting in financial loss to the Defendant; ii) The Plaintiff neglected and omitted to manage or effectively monitor bank reconciliation in line with accounting policies and procedure resulting in irregular accounting pattern and ultimately loss to the Defendant; iii) By virtue of his position as Chief Accountant and Accountant-Reporting, he should have conducted daily reconciliation and observed the irregular accounting practice in his department as he was granted the relevant authority to manage the unit. 3.12 In the alternative, the Defendant alleged that the Plaintiff was placed in a position of trust, managing a department and therefore had a fiduciary duty of care in the performance of his job description on behalf of the Defendant. The Defendant further averred that JS IP age without any justification, the Plaintiff wilfully neglected and or omitted to conduct his duties diligently in a manner expected of a professional in his capacity, resulting in loss to the Defendant and reputational damage as well as risk to the Defendant's business. 3.13 It was also averred that as a result of the Plaintiff's breach of contract and negligent actions, the Defendant suffered financial loss, damage and reputational injury and the Defendant therefore claims the following: - i) Damages for breach of contract; ii) Damages occasioned by the negligent performance of the contract of employment by the Plaintiff; iii) Compensation for reputational injury to the Defendant's business; iv) Any other remedy that they court may deem.fit; and v) Costs. 3.14 By the Plaintiff's Reply and Defence to Counter-claim, the Plaintiff averred that he did not breach the terms and conditions of his employment with the Defendant and that therefore his dismissal from employment was unlawful and unjustified. Further, he asserted that he was prosecuted and acquitted of all charges upon which his dismissal from employment was premised and that as a result of the malicious and unlawful prosecution taken against him by the Defendant he suffered financial loss and reputational injury. J9 I P age 3.15 In his Defence to the Defendant's Counter-claim, the Plaintiff denied that he was guilty of the alleged breach of contract and that he committed the alleged offences. He further averred that it is the Defendant that had caused damage to the Plaintiff as the Plaintiff was subjected to unfair prosecution and treatment on unfounded charges. EVIDENCE AT TRIAL 4.1 At trial, PWl was the Plaintiff, Chisenga Sichande. His testimony was that he was employed under a three-year contract by the Defendant as Accountant - Financial Reporting, as shown at pages 1 to 9 of the Plaintiff's Bundle of Documents, which is a letter of offer of employment and the contract of employment between the Defendant and Plaintiff. In August, 2013, he was called by the Internal Audit Manager for questioning with respect to a transaction, which was not correctly done by one of PW l 's subordinates and that according to the Internal Auditor, the said transaction could not be carried out without PWl's authority. 4.2 Following the interrogation which lasted for about nine hours, PW 1 was handed over to the Police Officers who had been called to the Defendant's premises. He was taken to Chelstone Police Station by the Police Officers and was placed in the detention cells. Subsequently, the Defendant's Internal Audit Manager and Acting Chief Financial Officer took the notification of the charge and suspension letter to PW 1 at the Police JlO I Page Station where he was detained and the matter was taken to the Court. The said charge and suspension letter where exhibited on pages 11 to 12 of the Plaintiff's Bundle of Documents. PWl testified that the offence at No. 5.1 of the Defendant's Schedule of Offences referred to in the Notification of Charge document, stated that he had been charged with fraud, but that the particulars of the alleged fraud and the amount involved were not stated. PWl testified that in the notice of suspension which is shown at page 12 of the Plaintiff's Bundle of Documents, he was called for a hearing. 4.3 PWl further testified that when his position at the Defendant company was advertised, he had not even appeared before the Disciplinary Committee, as can be seen at pages 13 and 14 of the Plaintiff's Bundle of Documents, which is the Defendant's advert for the position of Accountant Reporting, dated the 11 th of September, 2013. He stated that on that date he was still on suspension and that there was no vacancy at the Defendant's company. PWl testified that later, the Human Resource Officer went to the Police Station and took him a letter notifying him of his disciplinary hearing scheduled for 13th September, 2013, in the Audit Manager's Office, as seen from page 15 of the Plaintiff's Bundle of Documents, which is the said letter. He could not attend the scheduled disciplinary hearing as he was still in police custody. J11 I P age 4.4 PWl stated that he later received a letter on 23rd September, 2013, which was a notification of his summary dismissal. PW 1 attested that the Disciplinary Code provided that during a disciplinary hearing, he was supposed to call one of the Defendant's Staff to be his witness, which opportunity was not given to him as he was in police custody. He further attested that during the period that the Disciplinary Committee sat, he was in Police custody and the Human Resource Officer was aware of this situation. It was PW l 's testimony that he did not know what evidence was led against him at the disciplinary hearing as at the time he was not aware of the offence he had committed. PWl referred the Court to page 16 of the Plaintiff's Bundle of Documents which contained the letter of notification of his summary dismissal. 4 .5 According to PWl 's testimony, he was released from the Police cells and taken to the Magistrate's Court where a case of Fraud was presented to the Court. To his surprise, eight counts were presented against him, of (@ which he heard for the first time. The charges against him were fraudulent accounting, false accounting and theft by s ervant. The witnesses for the State were the Internal Audit Manager and the Chief Financial Officer of the Defendant Company. It wa s PWl 's further testimony that he was acquitted of all the eight counts at ca se to answer stage as shown at pages 17 and 19 of J121 r a i; e the Plaintiff's Bundle of Documents, which is a Ruling in which he was found with no case to answer. 4.6 With respect to the Counter-claim, PWl testified that the Defendant had a standard way of accounting and that every instruction was through internal mail system. He testified that his position at the Defendant company did not permit him to give instructions relating to transactions to be made. He stated that his role was only to review transactions after they had been done and it was mainly for coding. 4 . 7 PW 1 testified that the transaction would be done through the Chief Accountant at posting level, supervised by the Financial Accountant who would at times do it himself and after everything was done, he would do a print out and write a payment voucher which PWl would review as a control measure. PWl stated that looking at the charges levelled against him, there was no evidence that PW 1 had instructed anyone to post. PW 1 further stated that after all the transactions are done, all the documents were brought before him to review, so that he could append his signature for approval. 4.8 PWl testified that the document at page 17 of Defendant's Bundle of Documents, contained the conclusion to the Internal Audit Report and that the allegations contained therein were unfounded as there is a procedure for the transaction which would not start with finance but would start with loan processing. PW 1 J13 I P age explained that every instruction went through the loan processing department and when the instructions came at finance level, the posting was done. After the posting, the documents would come to PWl for coding to ensure that double entry was done and as such PWl denied the allegations levelled against him. 4.9 Furthermore, PWl denied the allegation that he authorised the movement of funds from the system's suspense account to various newly opened savers' accounts with no supporting documentation or payment vouchers, resulting in financial loss to the Defendant. It was his testimony that there was a standard procedure of making these transactions and at no point was he in charge of authorising payments which are to be disbursed. 4 . 10 With regards to the allegation that PWl neglected and omitted to manage or effectively monitor bank reconciliations, in line with accounting policies and procedure resulting in irregular accounting patterns and ultimately loss to the Defendant, PW 1 testified that according to the procedure, Bank Reconciliation was done at the end of the month by Accounts Assistants and that it was after that was done that he would review them and then they would be approved by the Chief Accountant. PW 1 further testified that he never supervised the reconciliations from the transactions in question. Jl4 I P age 4.11 PWl testified that the documents shown at pages 18 to 43 of the Defendant's Bundle of Documents which the Defendant alleges contains evidence against him do not have any connection to him. According to PW 1, the said documents were documents of account openings, but that he could not see any signature appended to them and that he did not authorise the opening of these accounts. PWl further stated that the said documents contained withdrawal slips by people that he did not know and that no authorisation came from him. 4.12 PWl stated that with respect to the document at page 34 of the Defendant's Bundle of Documents, wherein a person is acknowledging receiving the sum ofK3,000.00 from him, besides stating his name, it did not indicate that he admitted that he did so. PWl further stated that h e did not know the person that authored the said letter and that he had no connection to that letter. 4 . 13 When referred to page 4 of the Defendant's Supplementary Bundle of Documents, PWl testified that the letter contained therein was what he was told to write as they kept disputing his explanations. He further stated that he was told to sign the said letter and h e r efused. PW 1 testified t hat on the day following his arrest, he was not taken for further questioning but that the letter that he was forced to write on p age 4 of the Defendant's Supplementary Bundle of Documents was brought to him by the arresting officer and after he was J15 l Page slapped a few times by the Police, he signed the said document and indicated the date and time. 4 .14 PWI stated that he did not know the charges against him until 20th August, 2013, when the Defendant's agent took him the charge letter. According to PWI, following his arrest, his co-workers labelled him as a criminal, thief and unprofessional and that at church where he was a deacon , he was suspended until the case was disposed of. Further, PW 1 stated that the friends that he made at the Defendant company refused to be seen with him as they did not want to lose their _ jobs. 4.15 Additionally, it was PWI 's testimony that he believed that he was unlawfully dismissed especially that he was not given an opportunity to exculpate himself and that his position at the Defendant company was advertised before h e was dismissed. 4.16 During Cross Examination, PWl confirmed that his contract of employment was regulated by the Contract of Employment shown at pages 2 to 9 of the Plaintiff's Bundle of Documents. He testified that his duties at the Defendant Company were regulated partially as described on pages 1 to 4 of the Defendant's Bundle of Document, which he had signed for, but stated that some of the items set out in the job description did not relate to what he was employed to do by the Defendant. He proceeded to isolate the duties that did not apply to his employment. J16 I Page 4.17 PWl testified that Emmanuel Mupeta and Douglas were his subordinates but that he did not supervise all their work as they reported directly to the Chief Financial Officer on some duties. He attested that the accuracy of the Financial Reports, compliance with the accounting standards and the Defendant's Accounting Policies is the general responsibility of the Finance Department and not specifically that he was the only person in charge of the said duties. 4.18 PWl conceded that there was no threat to his life when he signed the document that he wrote at the Police Station where he was detained. He further stated that when he wrote the document that he signed, there was threat to his family and that he was confined in a room without food or water for over 8 hours until he was guided on what to write. Furthermore, he stated that nothing of what he wrote in the confession statement on page 4 of the Defendant's Supplementary Bundle of Documents was true. When referred to paragraph 6 and paragraph 7 of the Statement of Claim wherein it was sta ted th at he exculpated himself and that his exculpation was not considered by the disciplinary committee, PWl insisted that he was not given an opportunity to exculpate himself. 4.19 PW 1 testified that the journal entrie s shown at page 33 of the Defendant's Bundle of Documents are the postings by the Accounts Assistants under the instructions of the Financial Accountant. He stated that J17 I Page after they are posted, they are printed out and attached to the batch voucher. Then the posting that has been made is recorded in handwriting on the voucher to indicate which account has been debited and credited. Thereafter, the Accounts Assistants takes the batch voucher together with the attachments, which is the statement that the Accountant has printed for verification, which PWl would then sign to show that the entries have been done correctly. PWl would do the verification and cross checking which was done after the posting had been done. PWl testified that the aforesaid procedure being the case, the document on page 33 of the Defendants Bundle of Documents did not come to him for approval and as such, it had nothing to do with him. 4 .20 With r espect to the Global Corporate Audit Investigative Report on page 5 of the Defendant's Bundle of Documents dated 12th November, 2013, PWl testified that there was no investigation that was conducted and that the conclusion recorded in the report was not correct. He further stated that the processing of transactions had a procedure that was being followed and that the said process could only start with loan procedures. He conceded that the signature appended to the document at pages 4 to 6 of the Defendant's Supplementary Bundle of Documents was his but stated that the letter was his. Jl8 I P age 4.21 PWl testified that during the period of his suspension he was not paid anything. When reminded that he had earlier testified that he was forced to write things that . investigators wanted him to write, PWl testified that he does not remember stating that he was forced to include things in his exculpatory letter and that there was no exculpatory letter. He further stated that there were no contradictions in his Statement of Claim and his testimony adduced before Court. 4.22 In Re-examination, PWl stated that the document at pages 4 to 5 of the Defendant's Supplementary Bundle of Documents is a statement that he wrote under guidance of the Internal Audit Manager and signed under duress. He further stated that he remembered the payment of K27,000.00 for rent and that the voucher ...raised for that posting was supposed to come to his office in order to be verified and approved, but no print out or any documentation was presented to him for verification and approval. This marked the close of the Plaintiff's case. 4.23 DWl was Chanda Collins Njele, who testified that he worked for the Defendant between July, 2013 to October, 2015, as the Corporate Head of Unit and was tasked to provide assurance that the processes, procedures and policies of the Defendant were being adhered to. He was further tasked to investigate anything that occurred outside the policies and procedures provided. J19 I Pag e 4.24 DWl attested that he knew the Plaintiff having worked with him for a few months. His testimony was that on Monday, 12thAugust, 2013, DWl was summoned by the Chief Executive Officer of the Defendant Company Mr. Thomas Lendzian, who told him that the Acting Chief Financial Officer had received information that something irregular had happened at the Defendant's Matero Branch. The information that the Chief Financial Officer received was that the Plaintiff was at the branch after 12:00 hours with a heavily pregnant lady that he was assisting to make a withdrawal from her account and a withdrawal of K9,500.00 was made. After that incident, Douglas Sikabalu, the Defendant's Financial Accountant was seen outside the Defendant's Matero Branch in his car. The Plaintiff and the heavily pregnant woman then went and joined him in the car and they drove off. 4.25 DWl testified that the next morning, on 13th August, 2013, the account on which the withdrawal of K9,500.00 was made was checked and its balance was K20 .00. The activity on the account was that a sum of Kl2,000.00 was credited on 12th August, 2013 and that on Monday, K9 .500.00 was withdrawn from the Matero Branch. Further the sum of Kl 7,500.00 was withdrawn the same day from an account at the Defendant's Northmead branch. The said account was opened on Monday, 12th August, 2013 and a deposit of K27, 000.00 happened on the same date. It was DW l 's testimony J20 I P age that at that point, the Finance Team which included the Plaintiff, the Financial Accountant Mr. Sikabalu and four other people became persons of interest. On further investigation, DWl found that the Accounts Assistant who was supervised by the Plaintiff had processed more than just that one transaction that led to the K27,000.00 transfer. The other transactions that had been posted by the Accounts Assistant were investigated and they revealed that three accounts belonging to Anne Mbewe, Danny Mulubwa and Abus Kapikinya, which were opened around the same time, received money and were processed by Emmanuel Mupeta, the Accounts Assistant. All those transactions happened between 22nd July, 2013 and 12th August, 2013. DWl and his team continued with their investigations. He summoned Emmanuel Mupeta, the Accounts Assistant and during the interrogation with respect to the latest transaction of K27,000 .00, Emmanuel Mupeta admitted to have processed the transaction but could not produce any documents to support the transaction. Emmanuel Mupeta stated that he was told by the Plaintiff that the documentation for that transaction were with Mr. Sikabalu, who when asked referred DWl to the Plaintiff. When Emmanuel Mupeta was asked why he processed the transactions without supporting documents, he said that he had received an instruction via text from the Plaintiff to pay to the account number and name contained in the text message. J21 I P age 4.26 Further investigations revealed that the properly approved documents disappeared. With respect to the nature of payments, rentals had a written down procedure and the system in question is called STEM. DW 1 stated that the way it was supposed to operate was that when a payment for rent had been raised, Finca (Z) Rentals Account was to be debited. The control account would receive the record leg of the transaction and it would be automatically credited. At that point there is a debit and a credit in the system but the credit is sitting in a transitory account (a pass) and someone needed to manually complete the transaction by debiting the control account and crediting the bank account for the Landlord. At the time the suspected fraudulent transaction happened the transitory account had a backlog, as a number of transactions had not been reconciled from June, 2013 to the time of the suspected fraudulent action. The duty to reconcile that account was within the finance team under the charge team of the Plain tiff. The unreconciled balance could be moved once approved and in this case, approved by the Chief Accountant. The Accounts Assistant Emmanuel Mupeta agreed to put in writing what he had revealed to the investigating team and the said statement was exhibited on page 1 of the Defendant's Supplementary Bundle of Documents. 4.27 DWl stated that following his investigations, he had enough information to interrogate the Plaintiff, which he J22 I f.' age did on 15th August, 2013. During the interrogation of the Plaintiff by DWl, with respect to the K27,000.00 transfer, the Plaintiff admitted to have been with the pregnant lady at the time of withdrawing the money and to have taken a share of K 1,500.00 from the fraudulently obtained funds. DWl stated that when he finished interrogating the Plaintiff at around 16:00 hours, the Plaintiff prepared a Statement and signed it. The said statement was exhibited on page 4 of the Defendant's Supplementary Bundle of Documents. According to DWl, he did not force the Plaintiff to write the said statement. 4.28 DWl attested that at around 17:00 hours, he called Sergeant Kasongo from the fraud section of the Police, who came to the Defendant's premises with his colleague at about 18:00 hours . The Plaintiff was requested to accompany the Police Officers to the Police Station so that he could make an official statement there. The following day on Thursday around midday, DWl and his team went to Chelstone Police Station where the Plaintiff was detained and statements were recorded. 4.29 DWl confirmed that he authored the Investigative Report on Page 5 of the Defendant's Bundle of Documents and that he did not use the statement signed by the Plaintiff as part of his evidence, but that the rest of the evidence produced before the Court connected the Plaintiff to the erroneous transfers. DW 1 J23 I Page testified that the process for making a payment had a number of stages and the final approval stage was charged with the Plaintiff who would instruct the payment to be made. 4.30 DWl testified that the Plaintiff's Job Description which was exhibited on page 1 of the Defendant's Bundle of Documents, under item number IV provides as follows:- "Review the Head-Office transactions in line with accounting policies and procedures; • Reconcile the CATS transfer documents • Cross check thejoumal entries and ensure that the accounts assistant makes adjustments • Ensure that vouchers are raised for the internal and external payment vouchers." 4.31 DWl attested that the third bullet point under item N cited above did not happen on a number of transactions. He gave one specific example as being the instruction that the Plaintiff sent to Emmanuel Mupeta via a text message on a phone. DWl further attested that the Kl,500.00 that the Plaintiff had received, was not returned to the Defendant's office. 4.32 During Cross Examination, DWl testified that the Plaintiff was charged with fraud at the Police Station. He further stated that the Plaintiff was given 7 days by the Defendant to exculpate himself on the 20th of August, 2013. He conceded that after receiving the memo on that day, the Plaintiff had 2 days remaining to J24 I P age {i,;I ' .. exculpate himself. It was DWl's testimony that page 23 of the Plaintiff's Bundle of Documents contained the disciplinary code applicable at the Defendant Company at the time. DWl was referred to clause 3 of the Disciplinary Code which provided as follows: - "The Disciplinary Committee should observe the following when hearing the case: 3.1 When a case is being heard, all statements by the complainant, the accused and the witnesses should be recorded in writing and should be available. 3.2 The accused may be accompanied, ifs/ he wishes by another employee of she/ his choice. 3.3 Both the accused and the complainant should be given an opportunity to call for witnesses without interference so that the full facts and circumstances can be adduced in as fair a manner as reasonably possible." 4.33 DWl testified that he could not confirm whether a disciplinary hearing was held or not, as that was outside his mandate, but that he could confirm that page 15 of the Plaintiff's Bundle of Documents showed that the Plaintiff was summoned for a hearing. He further testified that the end result of the disciplinary was that the Plaintiff was on 23rd September, 2013, summarily dismissed from employment. When referred to pages 13 to 14 of the Plaintiff's Bundle of Documents, which contained a newspaper advert by the Defendant Company for the position of Accountant Reporting, J2s I P" g e dated 11th September, 2013, DWl testified that the Plaintiffs position was advertised whilst the Plaintiff was still in employment. Furthermore, DWl stated that the Police were called in so that the Plain tiff would record a statement with them and an official docket could be opened. DW 1 also testified that there was evidence of fraud and that was why he reported the Plaintiff to the Police. It was DW 1 's testimony that he did not get statements from any of the beneficiaries of the accounts. ((t 4.34 DWl attested that the Plaintiff did not do the postings but was the final approver of the postings made as per his job description where he was tasked to review the head office transactions in line with accounting policies. He further attested that in the Plaintiffs job description reference was made to accounting procedures and policies and the responsibility to ensure that vouchers are raised for internal and external payments. DWl also testified that the Plaintiff's position was not limited to raising vouchers but to approve payments as well. 4.35 During Re-examination, DWl testified that he had a personal engagement with the Police through the Sergeant that was handling the case and that was how he accessed the copy of the evidence showing the handover of the K3000.00 by one Annie Mbewe, who was a saver with the Defendant, to the Police. This marked the close of the Defendant's case. J26 j Page 4.36 The parties did not file their submissions despite being given sufficient time to do so. POINT FOR DETERMINATION 5.1 I have considered the Pleadings and evidence adduced before this Court. 5.2 The facts in this matter are that on 12th November, 2012, the Plaintiff herein was employed on a three-year contract as an Accountant-Financial Reporting by the Defendant. On or about the 13th of August, 2013, the Plaintiff was charged with the offence of fraud and contravening the Defendant's Disciplinary Code, which led to his suspension from employment. 5.3 According to the Plaintiffs Statement of Claim, the Defendant Company's Disciplinary Committee convened on 20th September, 2013 and resolved to summarily dismiss the Plaintiff from employment. Following the dismissal, the Defendant took a criminal complaint before Zambia Police and the Plaintiff was charged with four counts of fraudulent accounting and four counts of theft by servant. The Plaintiff was acquitted on all counts on 25th June, 2014. The Plaintiff alleges that he was not reinstated by the Defendant following his acquittal and that he has suffered reputational damage among his colleagues in the profession, due to the prosecution at the instance of the Defendant. The Plaintiff further alleges that the prosecution against him was malicious as it had no J27 I P age probable cause of succeeding and that he was held in prison by the Zambia Police at the instance of the Defendant without legal justification. 5.4 On the other hand, the Defendant alleges that contrary to the agreed terms and condition of the contract of employment, the Plaintiff herein wilfully neglected, omitted and blatantly breached the Defendant's accounting and reconciliation policies and procedures, resulting in the Plaintiff's suspension without pay and dismissal, m accordance with the Defendant's Disciplinary Code and Grievance Proced:ire. It was further alleged by the Defendant that an irregularity noted on a Saver's account prompted internal investigations, which revealed a pattern of unauthorised movement of funds to various newly opened Savers Accounts with no supporting documentation in the accounts department supervised by the Plaintiff. It was contended that the said irregularities should have been noted by the Plaintiff in the course of performing his daily duties as Acting Chief Accountant and Accountant-Financial Reporting at the material time. The Defendant claims that the Plaintiff breached the agreed terms and conditions of his employment by wilfully neglecting to conduct his duties diligently, resulting in loss to the Defendant, reputational damage and risk to the Defendant's business operations. J28 I P age 5.5 Arising from the above, the points for determination in my view, are whether the Plaintiff has proved the following on a balance of probabilities: - 1. That he was unlawfully and unjustly dismissed by the Defendant; 2. That he was entitled to half of his monthly earnings during the period of his suspension; 3. That he was falsely imprisoned; and 4. That he was defamed by the Defendant as a result of the criminal prosecution. DECISION OF THE COURT 6 . 1 The Plaintiff claims, inter alia for a declaration that h e was unlawfully and unjustly dismissed from employm ep.t; the Sum of K308 ,902.24 being dues from the rem ainder of his contract of employment; half earnings lost during the period of his suspension from employm en t; damages for malicious prosecution; damages for false imprisonment and damages for defama tion of the Plaintiff by way of criminal prosecution . 6 .2 The burden of proof is on the Plaintiff to prove his claims to the required standard. The Suprem e Court, in the case of Zambia Railways Limited v Pauline S Mundia and Brian Sialumba1 held tha t: - "The standard of proof in a civil case is not as rigorous as the one obtaining in a criminal case. Simply J29 I P o g e stated, the proof required is on a balance of probability as opposed to beyond all reasonable doubt in a criminal case. The old adage is true that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable ... " 6 .3 I will now proceed to determine whether the Plaintiff has proved on a balance of probabilities that the Defendant unlawfully and unjustly dismissed him from employment. In order to address this issue , it 1s n ecessary to provide context as to what an1ounts to unlawful dismissal and unjust dismissal. 6 .4 It is trite that unlawful dismissal is dismissal which is in breach of a Statutory Provision. Therefore, as the Plaintiff at trial did not state which Statutory Provision was breach ed by the Defendant in support of his claim for u nlawful dis missal, it is a ccordingly dismisse d. 6.5 Th e d efinit ion of unjust or unfair dismissal was con sid ered in the case of Care International Zambia Limited v Misheck Temba2 , where the Supreme Court, citing excerpts from Employment Law in Zambia: Cases and Materials1, state d a s follows : - " ... Unfair dismissal is a creation of statute.. . Unlike wrongful dismissal, which looks at form (of the dismissal), unfair dismissal looks at the merits for substance) of the dismissal and the form is only supportive of the whole merits (o. JJ the dismissal ... Under unfair dismissal, the courts will look at the the purpose of the dismissal £for reasons for J3o I P c1 g e determining whether the dismissal was iustifi.ed or not)." (Court's emphasis) 6.6 From the foregoing authority, it is clear that for one to succeed in his claim for unjust or unfair dismissal, they must prove to the Court on the balance of probabilities that their dismissal by the employer was not justified. I will thus consider whether the Plaintiff has proved that his dismissal from employment was not justified. 6.7 According to the Plaintiff's testimony at trial, the Defendant summarily dismissed him from employment following a charge of fraud and contravening the Defendant's Disciplinary Code. The Plaintiff alleges that his dismissal was not justified as he was not responsible for the irregular transactions that occurred on the Defendant's Savers' accounts and that he did not connive with anyone outside the Defendant's business. He further testified that the Defendant had a standard way of accounting and that he had no authority nor was he employed to give instructions for any transactions to be made on the Defendant's accounts. 6.8 On my analysis of the evidence before me, I find as a fact that the Plaintiff was employed as Accountant Financial Reporting and that his job description, as shown on page 2 of the Defendant's Bundle of Documents, processing of payments was limited to the reviewing and issuing of cheques and did not include the issuing of instructions for payments to be made on the Defendant's customer's or creditor's accounts. J31 I P age However, according to the testimony of DW 1, during the period that the irregular transactions occurred on the Defendant's Accounts, the Plaintiff was the Acting Chief Accountant of the Defendant company at the time and he gave the final approval for the Accounts Assistant, Emmanuel Mupeta, to process transactions. This portion of DW 1 's testimony with respect to the Plaintiff acting as a Chief Accountant and giving of final approval to process transactions was not successfully challenged by the Plaintiff at trial and I accept it as evidence that the Plaintiff held the position of Acting Chief Accountant at the Defendant company during the period of the irregular transaction. 6. 9 I will now proceed to consider the Plaintiff's written confession statement with respect to the irregular transaction involving the sum of K27,000 .00 contained on pages 4 to 5 of the Defendant's Supplementary Bundle of Documents. At trial, the Plaintiff stated that this statement was not made voluntarily and that he was guided on what to write. It was the Plaintiff's testimony in examination in chief that it was only after a few slaps by the Police that he was compelled to sign on the said statement. However, in Cross Examination, the Plaintiff stated that there was no threat to his life and that he did not say that he was slapped. On my analysis of the Plaintiff's testimony, I find that the Plaintiff did not adduce convincing evidence to support his assertion that the said statement was not made J32 I P a g c voluntarily. Accordingly, I accept the said statement as evidence in this case. 6.10 On my analysis of the Plaintiffs position at the Defendant's company and the confession statement alluded to above, I find, on a balance of probabilities that the Plaintiff gave final approval to Emmanuel Mupeta (Accounts Assistant) to post a payment of K27,000.00 to a Saver's Account without supporting documentation. The said Statement further alludes to the fact that a sum of K9,500.00 and Kl 7,500.00 (K27,000.00), were withdrawn by a lady in the company of the Plaintiff from the Defendant's Matero and Northmead branches respectively. The Plaintiff's Statement further indicates that the said lady gave the Plaintiff a sum of Kl ,500.00 from the withdrawn amount. 6.11 Based on the foregoing, I find that the Plaintiff's conduct in authorising the posting of the sum of K27,000.00 to a Saver's account, without supporting documentation and the fact that he was given a sum of Kl,500 .00 from the amount that was withdrawn from the said Saver's account, proves on a balance of probabilities, that the Plaintiff was involved in and/ or facilitated the irregular transfer of funds to the Saver's account for his benefit and in breach of the Defendant's accounting policy. Further, I find that as the Plaintiff benefitted from this irregular transaction, it proves on a balance of probabilities that he was involved in and/ or facilitated J33 J rage the commission of fraud and theft from the Defendant contrary to clause 5.1 of the Defendant's Disciplinary Code's Schedule of Offences, which provides a sanction of summary dismissal. 6.12 Accordingly, I find that the Defendant was justified in summarily dismissing the Plaintiff and consequently, the Plaintiff's claim for a declaration that he was unjustly or unfairly dismissed by the Defendant is hereby dismissed. The view that I take is fortified by the recent case of Care International Zambia Limited vs. Misheck Temba2, in which the Supreme Court of Zambia, restated the principle it espoused in Zambia National Provident Fund vs. Y. N. Chirwa3 , as follows: - "Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal, but the employer dismisses him without following the procedure prior to the dismissal laid down in a contract of service, no injustice is done to the employee by such failure to follow the procedure and he has no claim on that ground either for wrongful dismissal or for a declaration that the dismissal was a nullity." 6.13 With respect to the Plaintiff's claim for the sum of K308, 902. 24 which h e alleges are his dues for the r emainder of his contract of employment, I find that even in the event that this Court found that he was unjustly dismissed by the Defendant he would still not be entitled to a claim for his dues on the remainder of J34 I ra g e the contract of employment as he would not have earned it. This position is fortified by the case of Kitwe City Council v William Ng'uni4 where the Supreme Court held as fallows: - "It is illegal to award a salary or pension benefits for a period not worked because such an award has not been earned and can properly be termed as unjust enrichment." 6.14 At trial, the Plaintiff claimed that he was entitled to half of his salary during the period of his suspension, but that the said salary was not paid to him. His testimony was that following the charge of fraud and theft issued against him, he was notified of his suspension from employment on the 14th of August, 2013 . Clause 2.3 of the Defendant's Disciplinary Code, under the sub heading "Disciplinary Procedure", provides as follows: - "Investigations into the alleged offence and careful considerations of the facts surrounding the case should be done. In some cases, it may be necessary to suspend the offender to allow for non-interference in the investigations. It will be at the discretion of the disciplinary committee to determine the circumstances needed for a thorough investigation to be made. The suspended employee should be placed on half pay until the matter is resolved." 6.15 From the clause cited above, it is clear that once the Plaintiff was suspended from employment in order to allow for non-interference in the investigations, he was J35 I P age entitled to half of his monthly pay till the Defendant's determination of his case. Further on my perusal of the Defendant's Defence under paragraph 5, I find that the Defendant alludes to the fact that the Plaintiff was suspended without pay. Accordingly, I find and hold that Defendant is liable to pay the Plaintiff half his salary for the period between 14th August, 2013, when he was suspended to 20th September, 2013, when he was summarily dismissed. 6.16 The Plaintiff at trial challenged the procedure adopted by the Defendant which resulted in his summary dismissal from employment. The Plaintiff alleged that the Defendant did not give him an opportunity to exculpate himself following the charges of fraud and theft issued against him and proceeded to summarily dismiss him contrary to the Defendant's Disciplinary Code, th ereby breaching the employment contract. On p erusal of the Plaintiff's Statement of Claim, I find that the Plaintiff's allegation was not pleaded and contradicted with his own Statement of Claim wherein h e averred that h e was given an opportunity to exculpate himself of the charges issued against him. 6 . 17 In the case of William David Carlisle Wise v EF Harvey Limited5, the use of Pleadings was emphasised as follows: - "Pleadings serve the useful purpose of defining issues of fact and of law to be decided. They give each party distinct notice of the case intended to be set by the J36 I P age other and they provide a brief summary of each party's case from which the nature of the claim or defence may be apprehended." 6 . 18 Additionally, in the case of The Attorney General v Roy Clarke6, it was held inter alia that: - "A party cannot rely on unpleaded matters except where the evidence on the pleaded matters has been adduced in evidence without the objection from the opposing party.,, 6 . 19 On the strength of the foregoing authorities, I find that as the Plaintiff's Pleadings did not in any way allude to an allega tion of procedural impropriety on the part of the Defendant, in the manner that the Plaintiff was summarily dismissed and the fact that the evidence led by the Plaintiff in this regard was challenged by the Defendant 's Counsel on the basis tha t it was not pleaded , this allegation cannot be relied upon by the Plaintiff. In my view, the allegation appears to have b een an afterthought on the part of the Plaintiff and therefore , I shall not consider it. Accordingly, the Plaintiffs claim for damages for breach of contract by the Defendant is dismissed. 6 .20 I now turn to address the Plaintiff's claim for damages for malicious prosecution. It is the Plaintiff's claim that as the criminal prosecution he was subjected to at the instance of the Defendant resulted in an acquittal, the Defendant is liable to pay damages for malicious J37 I P .:i Ge prosecution as in the Plaintiff's opinion, the prosecution against him had no legal justification. 6 .21 The elements of malicious prosecution which a claimant must prove and establish according to the learned authors of Bullen and Leake and Jacob's Precedents of Pleadings2 are as follows: - "(a) He was prosecuted by the defendant i.e. that proceedings on a criminal charge were instituted or continued by the defendant against them; (b) The criminal proceedings were terminated in the claimant's favour; (c) The proceedings were instituted without reasonable and probable cause; (d) The defendant instituted the proceedings; and the claimant suffered loss and damage as a result." 6.22 From the facts before me, it is not disputed that the Plaintiff was prosecuted before the Subordinate Court sitting at Lusaka and later acquitted after the Defendant failed to prove the criminal charges against the Plaintiff beyond reasonable doubt. Therefore, the first two elements of malicious prosecution were proved by the Plain tiff. I will now proceed to consider whether the Plaintiff proved the third element which is whether the criminal proceedings against him were instituted without reasonable and probable cause. In the case of J38 I P age Anti-Corro.ption Commission v Charles Sambodu7 , the Supreme Court observed that: - "Reasonable and probable cause for the prosecution has been said to be an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds, of the existence of a state of circumstances, which assuming them to be true would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." (9 6 .23 The Supreme Court further stated that: - "It is important to note the presence of reasonable and probable cause for a prosecution does not depend on actual existence, but upon a reasonable belief held in good faith in the existence of such facts as would justify a prosecution." 6.24 On the strength of the foregoing authorities and as already determined above, the Plaintiff who was Acting Chief Accountant at the Defendant company at the time and was responsible for giving the final approval for the posting of funds to accounts, was aware that according to the Defendant's Accounting Policy, supporting documents were required before funds could be posted into a Saver's account. However, despite being aware of this requirement and by his own admission, he authorised the posting of funds to a Saver's account from which funds he received a sum of Kl,500.00, as per his Statement on pages 4 to 5 of the Defendant's J39 I P age Supplementary Bundle of Documents. Accordingly, I find and hold that the foregoing circumstances were reasonable and probable cause for the Defendant to institute criminal prosecution against the Plaintiff. Therefore, the third element of malicious prosecution alluded to above has not been satisfied by the Plaintiff herein. The foregoing position is further fortified by the case of Anti-Corruption Commission v Charles Sambodu7 were the Supreme Court held as follows : - " ... the existence of malice is always a question of fact and the absence of reasonable and probable cause affords some general evidence of the presence of malice. The proper motive for any prosecution is to secure the ends of justice. If securing the ends of justice was not the true and predominant motive, then malice is proved." 6.25 On the strength of the foregoing authority, and as already determined, there was reasonable and probable cause for prosecuting the Plaintiff in this case. It follows therefore, that there was no malice in the prosecution of the Plaintiff. 6.26 The fourth element that the Plaintiff was required to prove was that he has suffered damage as a result of the prosecution. Having found that there was reasonable and probable cause and no malice in prosecuting the Plaintiff, I am inclined to find that there was no damage suffered by him. Consequently, the Plaintiff's claim for damages for malicious prosecution is hereby dismissed. J40 I P age • 6.27 With respect to the Plaintiff's claim for damages for defamation, at trial the Plaintiff's evidence was that due to the criminal prosecution against him, he had been labelled a criminal, a thief and unprofessional among his colleagues. He further testified that he had been suspended from his church where he was deacon and that some of his colleagues at the Defendant company refused to be seen with him. On my analysis of the evidence before me, I find that the Plain tiff at trial did not lead any evidence to support the foregoing particulars of defamation that he raised. Further, as it has been determined that there was reasonable and probable cause for the Plaintiff's prosecution, the issue of defamation cannot even arise. Accordingly, the Plaintiffs claim for damages for defamation 1s dismissed. I am fortified by the case of Zambia Telecommunication Limited v Penias Mwale and another8 where the Court of Appeal held as follows: - " ... Furthermore, having found that there was reasonable and probable cause and no malice in the prosecution of the Respondent, the question of defamation does not even arise." 6.28 I will now turn to consider the Plaintiff's claim for damages for false imprisonment and I am guided by the case of Birdman v Jone~, where it was held that: - "False imprisonment is a restraint on the liberty of the person without lawful cause." J41 I P age 6.29 According to the Plaintiff's Statement of Claim, before he was prosecuted, he was held in prison by the Zambia Police at the instance of the Defendant, without probable cause. At trial the Plaintiff alluded to the fact that he was arrested at the Defendant's premises and detained at Chelstone Police. On my analysis of the evidence before me, I find that as it has already been determined by this Court that there was reasonable and probable cause for prosecuting the Plaintiff, the Police were justified in detaining the Plaintiff, in order to interrogate him with respect to the criminal complaint made by the Defendant. It follows therefore, that the Plaintiff's claim for damages for false imprisonment is hereby dismissed. This position is fortified by the case of Attorney General and Others v Phiri10 where the Supreme Court held as follows: - "There is no false imprisonment if a person's arrest is justifiable or if there is a reasonable justifiable cause for restraint. " 6.30 I will now proceed to consider the Defendant's Counter claims. A Counter-Claim is in its nature a cross suit ' an independent cause of action from that of the Plaintiff. The same expectation of the Plaintiff to prove its claim against the Defendant becomes the position and expectation of the Defendant to prove the Counter Claim against the Plaintiff. The degree of proof required as in all civil suits was alluded to by the Supreme Court J42 I P age in the case of Mazoka and Others v Mwanawasa and Others11 as follows: - "As regards the burden of proof, the evidence adduced must establish the issues raised to a fairly high degree of convincing clarity." 6.31 With respect to the Defendant's Counter-claim, the legal issues for determination are whether the Defendant has proved the following on a balance of probabilities: - 1. That the Plaintiff breached the Contract of Employment; 2. That the Plaintiff was negligent in the performance of his contract of employment; and 3. That the Plaintiff caused reputational injury to the Defendant's business. ' 6.32 In its Counter-claim, the Defendant alleged that 1n breach of terms and conditions of the contract of employment, the Plaintiff did the following: - 1. Authorised the movement of funds from the system's suspense account to various newly opened savers accounts with no supporting documentation or payment vouchers resulting in financial loss to the Defendant; 2. Neglected and omitted to manage or effectively monitor bank reconciliation in line with accounting policies and procedure resulting in irregular J43 I P age accounting pattern and ultimately loss to the Defendant; and 3. By virtue of his position as Acting Chief Accountant and Accountant - Financial Reporting, he should have conducted daily reconciliation and observed the irregular accounting practice in his department as he was granted the relevant authority to manage the unit. 6.33 In the alternative, the Defendant alleged that as the Plaintiff was placed in a position of trust, as Acting Chief Accountant, he had a fiduciary duty or duty of care in the performance of his duties on behalf of the Defendant. 6.34 On my analysis of the Defendant's claims and the evidence before me, I find that with regards to the first allegation above, the Defendant has proved on a balance of probabilities with respect to one transaction , that the Plaintiff authorised the transfer of the K27,000.00 to a Saver's account without supporting documentation, from which amount he received the sum of Kl ,500.00 . Accordingly, the Plaintiff was in breach of his contract of employment and liable to pay damages for breach of contract with respect to this transaction. 6.35 Further, the conduct of the Plaintiff in authorising the transfer of the sum of K27,000.00 to a Saver's account without supporting documentation amounted to negligence as the Plaintiff breached the duty of care that J44 I P a g e he owed the Defendant, which resulted in financial loss. This position is fortified by the case of Blyth v Birmingham Water Works Company12 , where negligence was defined in the following terms: - "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." 6.36 Additionally, the Court of Appeal in the case of Naomi Malama v Edwin Chinda Chisenga13 stated as follows :- "There are four elements of negligence, namely duty of care, beach, causation and damages. Each is an essential component of a legal claim that must be established." 6.37 Accordingly, I find and hold that the Defendant has proved on a balance of probabilities that the Plaintiff was negligent in the performance of his contract of employment and is therefore liable to pay damages for negligence. 6 .38 I note however, that though the Defendant's allegation alludes to financial loss, it did not at trial demonstrate the extent of the loss it suffered as a consequence of the Plaintiffs breach of contract. Further, I find that of the K27,000.00 irregularly transferred to a Saver's account ' there is evidence on record to show that a sum of K3,000.00 was handed over to the Police by the Saver, J45 I P age • which amount ought to be considered in determining the extent of the damage occasioned to the Defendant by the Plaintiff's negligence. 6.39 With respect to the other accounts on which the Defendant alleges the Plaintiff authorised irregular transactions, I find that the Defendant did not lead sufficient evidence at trial that linked the Plaintiff to the authorisation of the transfer of funds to those accounts. Accordingly, these allegations are dismissed. 6.40 Turning to the second and third allegation above, I find that the Defendant at trial did not lead sufficient evidence to demonstrate to this Court that the Plaintiff had been negligent in and omitted to manage or effectively monitor bank reconciliations in line with its accounting policies. Further, the Defendant did not lead sufficient evidence to demonstrate that the Plaintiff as per his job description had failed to conduct daily reconciliation and observe the irregular accounting practices in his department. 6.42 A perusal of the Defendant's Bundle of Documents and analysis of the evidence does not provide any link between the Plaintiff and the actions complained of by the Defendant, save for the case of the Plaintiff authorising the transfer of K27 ,000.00 without supporting documentation. In my view, the Defendant ought to have clearly shown to this Court by indicating how the Plaintiff in conducting his duties at the Defendant Company omitted or neglected to conduct J46 IP age • .. and manage bank reconciliations, as was done in the case of the transfer of the K27,000.00 . 6.43 With respect to the Defendant's alternative claim, I find that as the Defendant proved on a balance of probabilities that the Plaintiff authorised the transfer of the sum of K27,000.00 to a Saver's account without supporting documents, the Plaintiff was in clear breach of his fiduciary duty or duty of care that he owed to the Defendant by virtue of his employment. Accordingly, I find that the Plaintiff was in breach of his contract of employment and it follows therefore, that he is liable to pay the Defendant damages for breach of contract. 6.44 Turning to the Defendant's claim from compensation for reputational injury to the Defendant's business, I find that at trial this claim was not supported by any cogent evidence. Accordingly, I dismiss it. CONCLUSION 7 .1 The Plaintiff has partially succeeded 1n that he is entitled to his half salary accrued between 14th August, 2013, when he was suspended to 20th September, 2013, when he was summarily dismissed from employment. The total sum shall be assessed and determined by the Registrar and shall carry interest at the short term deposit rate fr~m the -~-~te of Judgment and thereafter, l\ at the current bank rate until full settlement. -------~----~- 7 .2 With respect to the Defendant, its Counter-claims partially succeed and it is entitled to damages for breach J47 I P age • • of contract by the Plaintiff and damages occasioned by the Plaintiff's negligent performance of the contract of employment. The said amount is to be assessed and determined by the Registrar. It shall carry interest at ; the short term deposit rate from the date of Judgment and thereafter, at the current bank rate until full . V settlement '- ~ ~ d1, h> ~~ M 7.3 In the circumstances of this case, each party shall bear their own costs. 7.4 Leave to Appeal is granted. Signed, Sealed and Delivered at Lusaka, this 31 st day of December, 2020. P. K. Y:ANGAILO HIGH COURT JUDGE J48 I P a g e