Fraser Mwangato and Anor v Standard Chartered Bank PLC (Appeal 64 of 2015) [2019] ZMSC 300 (23 May 2019)

IN THE SUPREME COURT OF ZAMBIA APPEAL No. 65 /2015 HOLDEN AT LUSAKA (Civil Jurisdiction) ^MECOURToT^J 1J' Hr.____ _ ^*5? BETWEEN: FRAZER MANGWATO (suing in his capacity as Administrator of the Estate of the late Ispha Mapulanga) COSAM MUGALA AND 1st APPELLANT 2nd APPELLANT STANDARD CHARTERED BANK PLC RESPONDENT CORAM: Hamaundu, Kabuka and Chinyama JJS. On 7Th November, 2017 and 23rd May, 2019. FOR THE 1st & 2nd APPELLANTS: Mr. K. Chenda, Messrs FOR THE RESPONDENT: Simeza, Sangwa & Associates. Mr. K. Mwondela, Messrs. Lloyd Jones and Collins. JUDGMENT KABUKA, JS, delivered the Judgment of the Court. * Cases referred to: J2 1. The Attorney-General v Richard Jackson Phiri (1988 - 1989) ZR 121 (SC). 2. Zambia Electricity Supply Corporation Limited v David Lubasi Muyambango (2006) ZR 22. 3. Mulungushi Investments Limited v Gradwell Mafumba, Appeal Number 141 of 1997 (unreported). 4. Attorney General v Achiume (1983) ZR 1 (SC). 5. Communications Authority of Zambia v Vodacom Zambia Limited S. C. Z Judgment No. 21 of 2009. 6. Bank of Zambia v Joseph Kasonde (1995-97) ZR 238. 7. Attorney General v John Tembo SCZ Judgment No.l of 2012. 8. Sinclair v Neighbour [1967] 2 QB 279. 9. Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa (1986) ZR 70 (SC). 10. Undi Phiri v Bank of Zambia, S. C. Z. Judgment Number 21 of 2007. 11. National Breweries Limited v Philip Mwenya, (2002) ZR 118. 12. Chimuka v Stanbic Bank S. C. Z. Appeal No. 122/2014. Legislation referred to: The Industrial and Labour Relations Act Cap. 269, S. 85. Other Works referred to: Halsbury’s laws of England, (4th Edition, 1992 Volume 16 Butterworths, London. Garner, B. A. Black’s Law Dictionary, 10th Edition, (2014) Thomson Reuters USA. 1 Introduction J3 1. By a judgment delivered on 15th February, 2015, the Industrial Relations Court found the summary dismissal of the appellants for dishonest conduct, was justified and that the appellants were not entitled to payment of any damages. The appellants are now appealing against that judgment. Background 2. The background to the matter is that the deceased (“the 1st appellant”) and the 2nd appellant, were initially employed as Bank Clerks by the respondent, on 17th May, 1989 and 11th September, 1991, respectively. The appellants rose through the ranks and were transferred to the Kasama Branch of the respondent bank, where the 1st appellant held the position of Branch Manager, while the 2nd appellant was a Branch Support Officer. At the material time, the 1st and 2nd appellants had served the bank for 18 and 16 years, respectively. 3. As part of the bank operations, both appellants held staff accounts with the respondent bank. The use of these accounts J4 by the account holders were however subject to conditions, amongst which two were cardinal. 4. For purposes of this judgment, what we will refer to as the first condition, was to the effect that, staff accounts could not be overdrawn by employees without the approval of the respondent bank’s Head of Credit or manager. Failure to obtain approval prior to overdrawing a staff account was a misconduct constituting a specific disciplinary offence of‘drawing a cheque on an insufficiently funded account.’ This offence was provided for under Clause 4. 3 (h) of the respondent’s Disciplinary Code and the penalty on first breach, is a warning letter to the employee. A second breach attracted the punishment of termination of the employee’s contract of employment, by notice. 5. The second condition was that, an employee could not deposit cash money in his staff account without first obtaining approval from the manager. Although the Disciplinary Code did not provide for this infraction as an offence, evidence on record from the trial court shows it was not in dispute that this was a policy J5 issue of the bank of acceptable conduct expected from its employees. 6. On various identified dates which were between 24th November, 2006 and 29th January, 2007, the 1st appellant, without obtaining prior authority, encashed four cheques from his staff account: cheque nos. 800223 and 800224 were in the sum of K7,000.00 each; while cheques no. 800230 and 800232 were in the respective sums of K10,000.00 and K5,000.00. The 1st appellant also cashed a Voucher for KI,000,000.00 and K375,000.00 in payments made to St. Francis Secondary School. All these payments were made from the 1st appellant’s staff account which at the time, had insufficient funds and as at 29th January, 2007, it was overdrawn by K5,011,349.48 Dr. 7. In an apparent attempt to regularise the situation, the 1st appellant over the same period, made the following cash deposits: 27/11/2006 - K7,000.00; 30/11/2006 - K7, 500.00; and on 29/01/2007 - KI 1,300.00. These deposits were made without obtaining the manager’s approval, contrary to the laid down procedure. J6 8. Similarly, the 2nd appellant also without first obtaining the required authority from his Branch Manager, who happened to be the 1st appellant, did on various days but between 05/7/2006 and 01/12/ 2006 cash cheques of various amounts from a staff account that had no money, at all. These transactions were made as follows: 05/07/2006-K2,450.00; 11 / 10/2006-K5,100.00; 28/ 10/2006-K1,500.00 and on 01/ 12/2006-K11,000.00. The monies were equally refunded without authority, as the 2nd appellant made cash deposits in the afternoon of the same day the account was overdrawn or on some other days but during the same period. The 2nd appellant was further alleged to have on 25/01 /2007 as holder of an EMI password, authorized the withdrawal of K5,000.00 by the 1st appellant, when he knew that there was no money in the latter’s account, contrary to Clause 4.5 (c) of the Disciplinary Code. 9. Following those transactions, the respondent on 24th February 2007 and 2nd March, 2007, decided to charge the 1st and 2nd appellants, respectively, with the offence of Dishonest Conduct, pursuant Clause 4.5 (b) of the Disciplinary Code. The penalty * J7 for this offence is summary dismissal on first breach. The 2nd appellant was, in addition, charged with the offence of failure to report an irregularity or an offence relating to a financial loss provided for under Clause 4.5 (c) of the Disciplinary Code. The allegation was that, as holder of an EMI password, the 2nd appellant authorized the withdrawal of K5,000.00 by the 1st appellant when he knew that there was no money in the latter’s account. 10. In their exculpatory letters, the appellants denied all the charges raised against them, asserting that no dishonest conduct was intended, by themselves. 11. A disciplinary hearing was thereafter held by the disciplinary committee of the respondent, where the appellants did not deny the fact that they did encash cheques on insufficiently funded accounts without authority and subsequently, made cash deposits in the same accounts without prior authority. The 2nd appellant however, denied that he was the holder of the EMI password at the material time, to have authorized the 1st J8 appellant to withdraw K5,000.00 from an account that had no money. 12. In considering their cases, the disciplinary committee noted that, the appellants were aware they could have accessed the same money by simply seeking the necessary authority, but repeatedly and over a long period of time, chose not to do so, as evidenced by the several transactions. Based on those facts, the disciplinary committee found the appellants’ conduct regarding unauthorized, encashment of cheques from insufficiently funded accounts and cash deposits made thereafter amounted to dishonest conduct in the circumstances. 13. It also considered that, in order to discourage other employees of the respondent from engaging in similar malpractices, the appropriate punishment for the appellant was summary dismissal. The disciplinary committee in this regard referred to previous disciplinary cases involving the respondent’s managers for Choma and Chingola Branches, who were dismissed for committing similar infractions. e J9 14. The appellants were accordingly dismissed and their dismissals were communicated to them by letters dated 23rd March, 2007 under the hand of the Executive Director Consumer Banking. In the said letters, the appellants were informed that the disciplinary committee had found each of them guilty of all offences charged. 15. After unsuccessfully appealing their dismissals to the appeals committee of the respondent bank, the appellants filed a Complaint before the Industrial Relations Court, pursuant to sections 85 of the Industrial and Labour Relations Act, Cap. 269. Complaint before the Industrial Relations Court 16. In their said Complaint, the appellants alleged that, the respondent unfairly and without just cause, charged them with Dishonest Conduct and that their contracts of employment were wrongfully terminated by way of summary dismissal. The appellants also alleged unfair and discriminatory treatment by the respondent, as according to them, other employees found in similar circumstances were not similarly punished. The I J10 appellants were seeking damages for wrongful dismissal, mental distress, an order that they be deemed to have retired and payment of their terminal benefits, interest and costs. 17. In its Answer to the Complaint, the respondent denied the allegations. It also denied that the appellants were entitled to the relief sought. The respondent asserted that, the appellants were properly charged with the offence of Dishonest Conduct as provided for under the Disciplinary Code. That they were afforded a fair hearing and dismissed, in accordance with the said Disciplinary Code. Hearing and consideration of the complaint by the trial court 18. After hearing evidence from witnesses, substantially as set out earlier in this judgment, the trial court noted that, in his evidence the 2nd appellant confirmed he encashed cheques from his staff account which at the time did not have sufficient funds. He also admitted that encashing cheques on several occasions on insufficiently funded accounts would amount to dishonest behaviour. Jll 19. However, the 2nd appellant still argued that, the offence of cashing cheques on an insufficiently funded account is provided for under Clause 4.3 (h) of the Disciplinary Code. That the penalty on first breach is a warning letter, while for a second breach the punishment is termination of the contract of employment, by notice. On their claim that other employees who were similarly circumstanced were treated differently, the 2nd appellant admitted that he did not know whether the said employees had overdrawn their accounts or made unauthorized deposits, more than once. He also claimed that the Executive Director Consumer Banking, Mrs. Chibesakunda, had no authority to write their dismissal letters and having done so, should not have sat on the appeals committee that heard their case on appeal. 20. In his evidence in rebuttal given at the trial of the matter in the court below, the respondent’s Human Resources Business Partner maintained that the appellants were properly charged with the offence of Dishonest Conduct as provided by Clause 4.5 (b) of the Disciplinary Code and the penalty for the offence J12 was summary dismissal on first breach. That in hearing the appellants’ case and dismissing them, the respondent followed all the procedural formalities. He explained that the respondent did not charge the appellants with Clause 4.3 (h) of the disciplinary Code as the acts of overdrawing their accounts were done on numerous occasions and for that reason amounted to dishonest behaviour. 21. The respondent’s Regional Branch Manager in her testimony given in the court below underscored the requirement for prior authorization to be given to employees, to draw from insufficiently funded accounts or to deposit cash monies. She explained that, the restriction on staff deposits helps the respondent to ensure that there is no money being laundered into the bank by its staff. She said the policy on deposits was contained in the respondent’s digest which was not before court. 22. The court below considered whether or not the dismissal of the appellants was wrongful; and whether the charge of dishonest conduct proffered against them; and the failure to report an J13 irregularity or an offence relating to financial loss, was wrong and excessive. 23. In relation to the question of wrongful dismissal, the court reminded itself that in examining this issue, its role was not to interpose itself as an appellate tribunal from the decision of the disciplinary committee, by reviewing the disciplinary committee’s proceedings or enquiring whether the decision was fair or reasonable. The court below took the approach that its role was merely to examine whether the respondent had the necessary disciplinary powers and whether such powers were properly exercised. Our decisions in the cases of Attorney General v Richard Jackson Phiri1 and Zambia Electricty Supply Corporation Limited v Lubasi Muyambango2 were cited as authority. 24. In considering whether the decision was fair, the court found that, from the record, it appeared that the appellants were charged by the correct officials; a disciplinary hearing was held; and they were accorded an opportunity to exculpate themselves; as well as to appeal the outcome of the disciplinary hearing. J14 25. The court observed that, there was nowhere in the pleadings or in the evidence where the appellants had attacked the process of the hearing or the power of the disciplinary committee, save for the fact that the dismissal letters were signed by the Executive Director-Consumer Banking, as opposed to a Human Resource officer, contrary to clause 1.10.7 (d) of the Disciplinary Code, which provides for the Human Resource Officer to issue letters of dismissal. 26. On this point, the court found that clause 1.10.7 (d) does not give a mandatory obligation on the Human Resource Officer to issue letters of termination or dismissal but merely guides on who can issue such letters. That in any event, a dismissal letter is only issued after the disciplinary committee has made its finding and as such, it cannot invalidate the decision of a committee which was properly constituted. Accordingly, the court was satisfied that the respondent had exercised its disciplinary powers in line with its Disciplinary Code, and that the appellants had adduced no evidence showing that the J15 disciplinary committee had exercised its power to conduct a disciplinary hearing improperly. 27. Regarding the issue raised by the appellants that they had been wrongly charged under clause 4.5 (b) with dishonest conduct, instead of clause 4.3 (h) relating to drawing money or a cheque on an insufficiently funded account. The court found that, at no point during the disciplinary hearing nor in the exculpatory letters did the appellants raise the issue of being wrongly charged. 28. The court also noted that appellants admitted all the charges raised against them, but only denied they had intended to defraud the respondent. The court considered that the appellants having been aware of the charges made against them had the opportunity to raise the issue of a wrong charge throughout the disciplinary process but did not do so. It reasoned that, if it began looking at why charge X was proffered as opposed to charge Y, this would be tantamount to interposing itself as an appellate tribunal, contrary to the J16 holdings of this Court in Richard Jackson Phiri1 and David Lubasi Muyambango2. 29. In the final analysis, the trial court was satisfied that the respondent had the necessary disciplinary powers and had exercised the same properly, at the hearing. It was further satisfied that, after going through the disciplinary process, the respondent had formed a proper opinion on the nature of the case and justifiably dismissed the two appellants for dishonest conduct. 30. Regarding the allegations by the appellants that they had been unfairly treated and discriminated against when other similarly circumstanced employees had not been summarily dismissed. The court found that, the second appellant had failed to substantiate these allegations. 31. Ultimately, the court below dismissed the appellants’ claims on the basis that, they were not entitled to any of the relief sought and relied on the case of Mulungushi Investments Limited v Gradwell Mafumba3 as held that, if a court finds a dismissal on J17 the facts is justified, then the claimant is not entitled to damages. The grounds of appeal to this Court 32. Aggrieved with the outcome of the matter, the appellants now seek this Court to overturn the trial court’s findings on the following grounds: 1. That the court below erred both in law and fact by holding that the respondent exercised its disciplinary powers properly in line with its disciplinary code. 2. That the court below erred both in law and fact by holding that after going through the disciplinary process, the respondent formed a proper opinion of the case and justifiably dismissed the late Ispha Mapulanga and the 2nd appellant. 3. That the court below misdirected itself in law and fact by dismissing the complaint as unmeritorious in the circumstances of the case. The arguments presented by the appellants 33. Counsel filed heads of argument in support of the grounds. In relation to ground one, it was argued that, this Court has the authority to reverse findings of fact made by a lower court. The cases of Attorney General v Achiume4 and Communications J18 Authority of Zambia v Vodacom Zambia Limited5 were cited in this regard. 34. Counsel’s contentions were that the appellants expressly alleged that the Disciplinary Code had been breached by the respondent when they charged them with dishonest conduct. As a result, the respondent wrongfully terminated the appellants’ contracts by way of summary dismissal; contrary to the sanction provided under clause 4 (h) of the Disciplinary Code for drawing money on an insufficiently funded account. The submission was that, the lower court’s conclusion that the respondent had exercised its disciplinary powers in line with its Disciplinary Code, was made contrary to the evidence on record where their own witness conceded that the Disciplinary Code was not followed. 35. On ground two, it was Counsel for the appellants’ argument that the lower court erred by holding that the respondent formed a proper opinion of the case and justifiably dismissed the appellants when in fact, the appellants were also charged with the making of unauthorised deposits, which offence was J19 not provided for under the Disciplinary Code, nor was it a dismissible infraction. 36. That in her evidence, the respondent’s witness (RW2) did state that the charge of unauthorised deposits was a key consideration in the dismissal of the appellants because of the staff digest which was not part of the evidence on record. It was also not referred to in the charges proffered against the appellants. His submission on the point was that, the findings of the trial court that the respondent had formed a proper opinion of the case and justifiably dismissed the appellants were made in the absence of relevant evidence and that the said findings ought to be reversed by this Court. 37. Lastly on ground 3, Counsel submitted that, the concept of wrongful dismissal as defined in Halsbury’s laws of England, 4th Edition is that wrongful dismissal is a breach of a relevant provision in the contract of employment. He relied on the case of Bank of Zambia v Joseph Kasonde6 as held that, where a Disciplinary Code is not followed, the ensuing dismissal is a J20 straight forward case of wrongful dismissal. The argument was that, the incontrovertible evidence before the court was that there were multiple breaches of its Disciplinary Code by the respondent in its handling of proceedings against the appellants, resulting in a wrongful dismissal. That since the Disciplinary Code did not allow the respondent to ignore its provisions, including its charging provisions, as the author of the code, the contra proferentum rule, demands that, where there is any doubt in construing a contract, the construction will be against the author of the document. 38. Counsel further cited the case of Attorney General v John Tembo7 which decided that there was maladministration, as the respondent was not charged nor given an opportunity to exculpate himself and they further disregarded the respondent’s conditions of service and the rules of natural justice. As a result, the subsequent dismissal was held to be wrongful. 39. Applying the ratio of that case, counsel submitted that, there was in the case subject of the present appeal, clear proof of maladministration and flagrant breach of the rules of natural J21 justice. This was so, according to counsel, as the respondent never alleged that the appellants had breached the staff digest when charging them to enable them respond to the allegations. Neither were the appellants given an opportunity to be heard on the staff digest before their dismissal. The respondents’ arguments 40. In their opposing arguments filed in response, counsel for the respondents under ground one argued that, the trial court had taken cognisance of all the evidence before it in relation to the averments that the appellants had been wrongly charged under clause 4.5 (b) of the code instead of 4.5 (h). That the court also considered the concession made by the 2nd appellant, that he had flouted the respondent’s code on numerous occasions. The court further took into account, the explanation by RW1 that the appellants were not charged under clause 4.3 (h) as the offences were committed on several occasions. 41. Counsel argued that the appellants did not raise issue with the charges made against them at the material time and had in fact J22 admitted them. On this premise, his submission was that, the lower court properly directed itself in invoking the case of Richard Jackson Phiri1, when it stated that, it was not the role of the court to interpose itself as an appellate tribunal, of the disciplinary committee. 42. In response to ground two, counsel’s argument was that, the respondent’s Disciplinary Code does not purport to be exhaustive of all possible offences that an employee may commit during employment. That the appellants were well aware of the respondent’s rule proscribing the unauthorised deposit of funds into their staff account, even if it was not stated in the Disciplinary Code. 43. The submission was that, the learned judge did in fact form a proper opinion of the case, as the appellants’ conduct of overdrawing their accounts without authorisation and later making unauthorised deposits into the accounts on numerous occasions to regularise the same, amounted to dishonest conduct, with impunity. Counsel relied on the case of Sinclair v Neighbour8 in which the conduct of a manager who took £15 J23 from a till and left an IOU in its place, intending to pay back the money was found to be dishonest. 44. On ground three, counsel for the respondent argued that the respondent adhered to the spirit and letter of the Disciplinary Code. The cases of Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa9 and Undi Phiri v Bank of Zambia10 were cited in advancing the argument that, even if the respondent did not follow its procedure in dismissing the appellants, the dismissal would still not be wrongful on account of their blameworthiness and admission to the charges proffered. Counsel further cited the cases of National Breweries Limited v Phillip Mwenya11, amongst others in underscoring this point. 45. At the hearing of the appeal, Counsel for the appellants relied on the heads of argument and submissions which he augmented briefly, orally, by stressing that the appellants were not arguing that they did not commit labour wrongs and did not deserve to be punished. Their grievance was rather that, they ought to have been punished in accordance with the J24 Disciplinary Code and in terms of the said code, the punishment provided for the offence actually committed is a warning on first breach and later, a termination by notice. That the code was binding on the respondent and it had no discretion to ignore it. Counsel urged us to uphold the appellants’ contention that in committing the infractions in issue they had no dishonest intentions, at all. 46. In his equally brief oral submissions in response, learned counsel for the respondent pointed out that, the contractual obligations between the parties in Clause 1.2 at page 105 of the Record of Appeal state that, the Disciplinary Code was not exhaustive. That some of the rules relating to the contract would be contained in documents outside the Disciplinary Code. 47. Referring to his learned colleague’s submissions, that whereas the appellants admitted the acts complained of, they nonetheless distanced themselves of any malice or dishonesty. Respondent’s counsel observed that, he failed to appreciate the attempt to split hairs between the conduct of the appellants J25 and the state of their hearts. That unless the court was wearing the lenses of God, it is impossible to look into the heart of any man to discern the true state of his intent. It is for the said reason, that all humans are limited to the conduct of the parties and to discern the true state from that conduct. His submission in that regard was that, the actions of the appellants were consistent with a determination of dishonesty. 48. According to counsel, what the appellants infact did, was that they treated the respondent bank as their own ‘piggy bank’, going in, drawing money and returning it, at will. They were thus effectively approving their own overdrafts by availing themselves of the money at their convenience and similarly, returning the said monies. That behaviour, counsel urged, can only be characterized as dishonest. His submission in conclusion was that, the appellants were correctly charged by the respondent and that the lower court was on firm ground, upon considering all of the evidence led, in arriving at the conclusion that it did. J26 Consideration of the matter by this Court and decision 49. We have considered the detailed arguments as submitted by both counsel for the parties. For convenience, we propose to start with ground one of the appeal after which we will deal with grounds two and three together, as the issues raised in these grounds are related. 50. In dealing with ground one, we note from the evidence on record, that it is not in dispute that the appellants breached the respondent’s Disciplinary Code by drawing monies on insufficiently funded staff accounts. This they did, not once, not twice, but on several occasions. What is in dispute, is whether the appellants were correctly charged under the respondent’s Disciplinary Code for dishonest conduct, to warrant their summary dismissals? 51. The schedule of offences and corresponding disciplinary action appears at pages 114 to 116 of the Record of Appeal and shows that, Clause 4.3 (h) provides for the offence of drawing a cheque on an insufficiently funded account for which the penalty is a J27 warning letter on first breach and termination by notice, on second breach. Clause 4.5 (b) and (c) under which the appellants were charged states that dishonest conduct and other financial offences such as the failure to report an irregularity or an offence relating to a financial loss, invites the penalty of a summary dismissal. 52. The first appellant in the present appeal was found to have overdrawn his staff account without obtaining the necessary prior approval from the Head of Credit, by cashing cheques on an overdrawn account, on at least six or more occasions. He is further alleged to have made three cash deposits without obtaining any approval, as per procedure. 53. For his part, the second appellant was also alleged to have authorised a cash withdrawal by the deceased 1st appellant, but was exonerated on this charge at the disciplinary hearing of the case for lack of evidence. The 2nd appellant was also alleged to have cashed several cheques on at least three or more occasions in July, 2006 and October, 2006. That the monies were J28 returned in the afternoon, on the days that the withdrawals had been made. 54. The offence that the appellants were accused of and charged with, of drawing money on an insufficiently funded account is specifically provided for under clause 4.3 (h) of the Disciplinary Code appearing at page 113 of the record of appeal. Dishonesty and other Financial omissions, are there defined as: “any conduct causing or likely to cause financial loss to the bank or any person or institution having business relationship with the Bank or acts or omissions of irregular nature intended to defraud or mislead the Bank for the benefit or gain of a third party. (Underlining for emphasis supplied) 55. The question as we see it, is whether granted the particular circumstances of this case, the respondent was precluded from relying on any other clause for the transgressions committed by the appellants, which they did not infact deny. The real question is thus, what considerations must inform the court when dealing with matters arising from administrative decisions? The issue arose in the case of Richard Jackson Phiri1 and we there stated that, a court confronted with such a J29 situation is not required to sit as an appellate tribunal to review the administrative proceedings or to inquire whether the decision reached was fair or reasonable. The court’s role is restricted to examining whether the decision maker had powers to decide and in doing so, properly exercised those powers. 56. In the earlier case, of Zambia National Provident Fund v Yekweniya Mbinuwa Chirwa9 one Godwin J. Kamanga (deceased) was dismissed by the Zambia National Provident Fund (ZNPF) his employers, upon his own admission of dishonest conduct. After his death, the personal representative, pursued his action to nullify the dismissal on account of the employer’s non-compliance with ZNPF disciplinary rules. The action was successful before the trial court. On appeal by the employer, this Court held that: “ Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is also dismissed, no injustice arises from a failure to comply with the laid down procedure in the contract and the employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity.” 4 * J30 57. In the present appeal now before us, the appellants at the disciplinary hearing admitted encashing cheques on staff accounts that had little or no money, at all, at the material times and on several occasions. They also admitted depositing cash back into the same accounts. They could have easily done so with specific permission of the manager or Head of Credit, but chose not to obtain such permission. 58. The record shows that in his evidence given at the hearing, the 2nd appellant maintained his admission that he had indeed repeatedly encashed cheques and deposited cash in the staff account, without authority. He also conceded, that such action could be described as dishonest behaviour. He was together with the 1st appellant charged with dishonest conduct for this behaviour and this offence was actually provided for under Clause 4.5 (b) of the Disciplinary Code which prescribed summary dismissal as the penalty for a first breach. Granted those facts, we cannot fault the trial court for having found the offence charged was established by the evidence led and J31 attracted the penalty of a dismissal. Ground one of the appeal attacking that finding accordingly fails. 59. Coming to grounds two and three, Counsel for the appellant argues that, the court below erred when it held that the disciplinary tribunal had formed a proper opinion of the case, when in fact the charge relating to unauthorised deposits was not provided for in the Disciplinary Code but was said to be found in the staff digest. This staff digest however, did not form part of the record and the appellants were not informed or alerted to the fact that it had been considered in charging them. Counsel reproduced excerpts of the testimony of the respondent’s witnesses to demonstrate that, the staff digest was never in issue at the hearing but that it was however a key consideration in dismissing the appellants. 60. Although our perusal of the record has disclosed that there is indeed no specific offence relating to unauthorised deposits, it nonetheless, cannot be ignored that the charge of withdrawing on an insufficiently funded account is one that exists and one that the appellants were aware of and admitted committing. J32 61. In the case of Chimuka v Stanbic Bank12 we observed that: “With regard to the disciplinary measure which the respondent invoked, the trial court took the view that there was a sufficient substratum of facts which had fortified that measure. The court noted that it had satisfied itself that the respondent’s disciplinary committee had complied with the rules of natural justice and had acted properly. For our part, we entirely agree with the position which the trial court took. Indeed, there was no question that the appellant had committed obvious transgressions under the respondent’s Disciplinary Code which had legitimately attracted both the disciplinary charge which was preferred against the appellant as well as the disciplinary proceedings which had been set in train against him.” 62. Black’s Law Dictionary defines 'dishonest act’, also known as ‘fraudulent act’, as: “conduct involving bad faith, dishonesty, a lack of integrity or moral turpitude.” 63. Considered as a whole, the appellants’ acts of encashing cheques from insufficiently funded accounts and depositing back cash without the required authority, in our view, most certainly constituted dishonest conduct, which is our finding in ground one of the appeal. In the event, the appellants’ J33 argument that the act of depositing cash in a staff account was not an offence does not assist them at all. 64. As the penalty of the infractions committed by the appellants constituted dishonest conduct which was punishable by summary dismissal, we find no injustice has been occasioned to the appellants on the facts and they cannot claim to have been wrongfully dismissed. Grounds 2 and 3 of the appeal equally fail. Conclusion 65. All the three grounds of appeal having been unsuccessful, the appeal is hereby dismissed. Considering all the circumstances of the case, we make no order as to costs. Appeal dismissed. SUPREME COURT JUDGE J. K. KABUKA J. CHI MA SUPREME COURT JUDGE SUPREME COURT JUDGE