Siisii v Toyota Zambia Ltd (Appeal 172 of 2016) [2019] ZMSC 355 (30 July 2019)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 172/2016 BETWEEN: HENRY NGENDA SIISII APPELLANT AND TOYOTA ZAMBIA LIMITED RESPONDENT CORAM: Muyovwe, Wood and Kajimanga JJS On 9th July 2019 and 30th July 2019 For the Appellant: Mrs. N. N. Mbao of Messrs Nkusuwila Nachalwe Advocates For the Respondent: Mr. B. Mutale of Messrs BCM Legal Practitioners JUDGMENT Kajimanga, JS delivered the judgment of the court Cases referred to: 1. Attorney General v Richard Jackson Phiri {1988-89) Z. R. 121 2. Contract Haulage Limited v Kamayoyo (1982) Z. R. 13 3. Undi Phiri v Bank of Zambia (2007) Z. R. 186 4. West Midlands Co-operative Society v Tipton [1986] IRLR 112 5. Miriam Shabwanga & 5 Others v Zambia Telecommunications Company Limited - Comp No. 233/2014 6. R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 7. Telecommunications Company Limited v Celtel Zambia Limited (2008) Z. R. 8. National Breweries Limited v Phillip Mwenya (2002) Z. R. 118 9. Zambia Airways Corporation Ltd v Gershom Mubanga (1990-1992) Z. R. J2 10. Chilanga Cement v Kasote Singogo {2009} Z. R. 122 11. Bank of Zambia v Kasonde (1995-1997) Z. R. 238 12. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 13. Boart Longyear (Zambia) v Austin Makanya - SCZ Judgment No. 9 of 2016 14. Attorney General v D. G. Mpundu (1984) Z. R. 6 15. Minister of Home Affairs & Another v Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes) (2007) Z. R. 207 16. Zambian Breweries Plc v Lameck Sakala (2012) Vol. 2 Z. R. 460 17. Zambia Telecommunications Company v Mulwanda and Others - Appeal No. 63 of 2009 18. Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa (1986) Z. R. 70 19. Ward v Bradford Corporation [1971] 70 LGR 27 20. Caroline Tomaidah Daka v Zambia National Commercial Bank (2012) Z. R. 21. Chimanga Changa Limited v Stephen Chipango Ng’ombe (2010) Vol.l Z. R. 208 22. Stockdale v Woodpecker Inn Limited and Spooner (1967) Z. R. 128 23. Edward Mweshi Chileshe v Zambia Consolidated Copper Mines (1995­ 1997) Z. R. 148 24. Kitwe City Council v William Ng’uni (2005) Z. R. 57 25. Pamodzi Hotel v Godwin Mbewe (1987) Z. R. 56 26. Khalid Mohamed v Attorney General (1982) Z. R. 49 27. Zambezi Ranching and Cropping Limited v Lloyd Chewe - Appeal No. 128 of 1999 28. Mary Musole v Borassus Estates Limited - IRC/Comp/303/2004 29. Chipungu Chilufya Dzekedzeke v Zambia Telecommunications Company - Comp No.349/2016 30. Hadley v Baxendale [1854] 9 Exch.341 31. Zambia Electricity Supply Corporation Limited v David Lubasi Muyambango (2006) Z. R. 22 32. Zambia Revenue Authority v Hitech Trading Limited (2001) Z. R. 17 33. Kalumbila Mines v Kabamba - Appeal No. 59/2018 34. Antonio Ventriglia Manuela Ventriglia v Eastern and Southern African Trade and Development Bank (2010) Z. R. 486 Legislation referred to: Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia Introduction J3 1. This appeal emanates from the decision of the High Court (Industrial Relations Division) dated 8th June 2016 which dismissed the appellant’s claims against the respondent for wrongful and unfair termination of his employment. Background to the Appeal 2. The brief facts of the case are that the appellant was an employee of the respondent. On 3rd September 2014, he was charged with the offences of theft of a speedometer sensor and lying to a supervisor. Following the charge, the appellant exculpated himself. A disciplinary hearing was then conducted by the respondent where the appellant was found guilty of the offences. On 19th September 2014, he was summarily dismissed from employment and he appealed against the dismissal to the respondent’s chief executive officer. His appeal was not successful. Subsequently, the appellant commenced proceedings against the respondent in the court below to challenge his dismissal. Pleadings 3. By a notice of complaint dated 16th October 2014, the appellant sought the following relief as against the respondent: J4 3.1 A declaration that the termination of the appellant’s employment was unlawful and unfair; 3.2 A declaration that the disciplinary hearing was irregular and unfair on the basis of breach of procedure, and, therefore, null and void ab initio; 3.3 A declaration that the rules of natural justice were not upheld, consequently the termination should be conceived as having been done in bad faith; 3.4 Damages for unlawful and unfair termination of employment; 3.5 [An order] compelling the respondent to clear the appellant and give him a recommendation letter to enable him obtain employment elsewhere; Interest and legal costs; 3.6 3.7 Any other relief the court may deem fit. 4. The basis upon which the claim was made was that the dismissal was done in bad faith as the alleged stolen motor vehicle part was not missing but was merely broken, a fact confirmed by the appellant’s supervisor and the subordinate who worked on it with the appellant. Secondly, the charge sheet was framed by the appellant’s supervisor’s boss instead of his immediate supervisor; and neither the charging officer nor the investigating officer were called to the disciplinary hearing to enable the appellant cross­ examine them on the allegations levelled against him contrary to the disciplinary procedure under the respondent’s staff manual. 5. The appellant also contended that the disciplinary committee which heard his case comprised of senior managers holding positions under the category of T3 as opposed to T4 as per the provisions of the disciplinary code; and that he objected to having one Kennedy Kabaghe on the disciplinary committee on the basis that the two had an acrimonious history and he would, therefore, be biased but the objection was disregarded. 6. In addition, the appellant was prevented from cross-examining the three witnesses who testified against him and from tendering evidence in his defence, particularly the audio recording of the meeting held on 8th August 2014 with his supervisor Michael Mbangweta and the two witnesses, Lottie Silomba and Biston Mweemba prior to the disciplinary hearing. Further, that the appellant’s request to have the footage of the closed-circuit television (CCTV) played, in order to establish who was responsible for the removal of the sensor and its replacement, was refused. 7. The appellant, therefore, contended that the alleged offences of theft and lying to a supervisor were not proved against him and J6 that the respondent generally failed to observe and adhere to the rules of natural justice through out the disciplinary process. 8. For its part, the respondent disputed the appellant’s claims and asserted that the dismissal was lawfully done and preceded by a properly constituted disciplinary hearing. It contended that the charge sheet was raised by the national service manager instead of the appellant’s line manager because the line manager was also under investigations related to the appellant’s charges and that it is for this reason that senior managers at T3 level sat on the disciplinary panel which heard the appellant’s case. 9. According to the respondent, the charges levelled against the appellant were proved during a properly constituted disciplinary hearing panel following substantial investigations into the charges. That the speedometer sensor which was subject of the charge of theft did indeed go missing from the respondent’s premises after the appellant’s junior gave the spare part to the appellant; it was also proved that the appellant lied to his supervisor regarding the missing spare part and even attempted to intimidate his juniors to support his lies. J7 10. The respondent denied that, the charging officer and investigating officer were deliberately omitted from the disciplinary hearing and asserted that the appellant did not raise any objection as to their absence from the hearing otherwise arrangements would have been made for their personal attendance. 11. The respondent also denied that Kennedy Kabaghe had any direct or indirect interest in the appellant’s disciplinary case. It was contended that the reasons advanced by the appellant to have him recused from the disciplinary hearing were not substantiated with any cogent evidence as there was no report made by the appellant prior to the disciplinary matter about the alleged acrimonious relationship between the two persons and, therefore, the respondent did not have any record of the same. 12. The respondent further contended that it did not prevent the appellant from tendering any evidence; on the contrary, he was given an opportunity to play his alleged audio recording but the same was not audible enough and therefore unhelpful to all concerned. That neither did it refuse the appellant from playing the CCTV footage but that the location at which the spare part was J9 manager then gave a verbal warning to the appellant, which he refused to accept insisting that the manager should call both Lottie Silomba, whom he worked with on the sensor, and Biston Mweemba who reported the incidence to the manager earlier before the appellant did, so that the manager could hear from the three of them before he could take any action. Accordingly, a meeting was called where Lottie Silomba confirmed what had happened and Biston Mweemba denied having any knowledge of the other two using the sensor and testing it on another motor vehicle. 16. On 20th August 2014, he was suspended with immediate effect without pay. While still on suspension, he received a charge sheet dated 3rd September 2014 from the national service manager, Francois du Toit, charging him with two offences of theft and lying to his supervisor. A disciplinary hearing took place on 5th September 2014 but before the sitting, the appellant objected to the presence of Mr. Kennedy Kabaghe on the disciplinary committee to avoid biased proceedings, since according to him the two were not on good terms, as the appellant had a bitter past with Mr. Kennedy Kabaghe. The objection was ignored. J10 17. His evidence also disclosed that during the disciplinary hearing, the charging officer, Francois du Toit, and the investigating officer, Charles Daka, were not called to attend the hearing in order to afford the appellant an opportunity to ask them questions concerning the matter and the charges. That only the manager, Michael Mbangweta, Lottie Silomba and Biston Mweemba were called as witnesses but the appellant was not even permitted to ask them questions. He, however, conceded in cross-examination that there was nothing in the minutes of the disciplinary hearing showing that he had requested to cross-examine Biston Mweemba and Lottie Silomba, or that he had requested for something during the hearing which was refused. Further, that the committee refused to grant his request to avail him the CCTV footage of that day to reveal who removed the sensor. 18. He also testified that the composition of the disciplinary committee was not properly constituted as senior managers at T3 level who sat on the committee were below the T4 level, which is the proper committee’s composition for the complainant’s position of T5. Jll 19. His further testimony was that following the disciplinary hearing, he was summarily dismissed from employment on grounds of theft and lying to his superior. He was then advised to appeal to the chief executive officer against his dismissal, which he did. However, the chief executive officer upheld the decision of the disciplinary committee. 20. CW2 was Moto Ng’ambi, the information technology (IT) manager at the time of the incidence. He testified that sometime in mid- 2014, the respondent’s IT department got an official handover of the closed circuit television (CCTV) system from Precision Communications Limited who had installed it at the workshop on Nangwenya Branch premises. During the handover, Precision did not mention any blind spots that the camera did not cover on the premises. All the area, including the workshops where the appellant worked, were fully covered and monitored. Further, Precision did not specify how much footage the system could handle. 21. The 1st respondent’s witness (RW1) was Teddy Ndumba, a senior J12 technician, who testified that his duty was to take care of the respondent’s security solutions, which include CCTV installed at the premises. He stated that his finding was that there was a static camera facing where the gearbox was taken from but the view was blocked by a pillar. To prove this view blocking by a pillar, he placed an object at the point where the dismounted gearbox with the speedometer sensor in question was located and, on viewing the static camera, he could not see the object that was placed in that particular place. 22. RW1 also stated that there are some blind spots in the Nangwenya workshop which are not covered by the installed CCTV, and that the back-up life span is only up to about thirty days from the recording date of a particular footage. After 30 days the footage disappears from the CCTV system. That the events of the date of the incident, being older than 30 days and coupled with the state of the gearbox being in a blind spot blocked by a pillar, the footage is not existent in the back-up of the system. 23. The 2nd respondent’s witness (RW2) was Biston Mweemba, a J13 general service technician. His evidence was that in or about the first week of July 2014, the appellant asked him to swap the speedometer sensor in question but he refused. The appellant did not, however, inform him about the intended use of the speedometer sensor. When he noticed that the sensor was missing and Lottie Silomba heard about it, Lottie went into the control room where the appellant was found and soon after that, the appellant came out and told RW2 not to report the matter. 24. The 3rd respondent’s witness (RW3) was Lottie Silomba, who stated that on or about 17th July 2014, the appellant requested him to remove a speedometer sensor from a Toyota Land Cruiser which came for repairs from the office of the Vice President, claiming that he wanted to test it on another motor vehicle. He followed the instruction and removed the sensor and gave it to the appellant. 25. RW3 stated that the appellant asked him to lie to the service manager that they both removed the sensor so that the appellant could test it on another vehicle and further threatened him that should he tell anyone to the contrary, something bad would J14 happen to him. As a result, he gave two reports of the incident. The first report he gave was that when he removed the sensor the appellant asked him to use it on the Hilux and, when it failed to work, the appellant further asked him to remove the sensor and replace it, but the speedometer sensor broke in the process. 26. RW3 also testified that the appellant instructed him to keep quiet if they queried about the sensor, and that the appellant promised to sort it out himself, in order to shield and protect RW3, which eventually never happened as RW3 was charged for lying to his supervisor (the service manager) and given a warning in writing. 27. RW4 was Michael Mbangweta, the service manager at the time of the incident. He testified that on 6th August 2014, RW2 reported to him that a speedometer sensor of a Land Cruiser, which had been brought for repairs, was removed from the gearbox by RW3 without the consent of RW2 who was assigned to work on the vehicle. 28. Subsequently, on 7th August 2014, the appellant went to his office with a speedometer sensor that he claimed to have sourced from outside the respondent’s business premises as the one from the Toyota Land Cruiser in question was broken when he was trying to test it on a Toyota Hilux. RW4 stated that he found the appellant’s explanation quite strange as the speedometer sensors for the Toyota Land Cruiser and Toyota Hilux are different and not compatible. Consequently, he issued a verbal warning to the appellant for telling lies about the movement of the sensor, and instituted investigations into the matter. 29. The appellant, however, refused to accept the warning which prompted RW4 to call a meeting with the appellant, RW2 and RW3, in which RW2 confirmed that he did not give consent for the removal and use of the Land Cruiser speedometer sensor on another motor vehicle. Later, the appellant was charged by the human resource department. 30. The 5th respondent’s witness (RW5) was Michael Charles Daka, the risk and assurance manager in the respondent company. He testified that on 8th August 2014 he went to Nangwenya Branch of Toyota Zambia to collect and examine two job cards involving two motor vehicles, Toyota Landcruiser registration number GRZ 208 J16 CH and Toyota Hilux registration number ALG 3100. He also asked the appellant, RW2, RW3 and RW4 to submit to him written reports on what transpired which they did. 31. He testified that his recommendation after receiving the reports was that disciplinary action on the appellant be commenced as his findings were that, contrary to the appellant’s assertion, no testing of any speedometer sensor ever took place at Nangwenya workshop as: (i) no record of such a test was found on any job card, or other documents that RW5 looked at; (ii) the speedometer sensor for a Land Cruiser is very different from the speedometer sensor of a Toyota Hilux on which the appellant claimed to have tested the sensor; (iii) RW3 disowned the appellant’s version of events when he realised the seriousness of the offence; and (iv) . there was no need for the appellant to go and source a replacement sensor from outside, unless he was hiding something from the respondent. 32. RW5 stated that he discovered during his investigations that the appellant made threats on RW3 and even went to the extent of going to RW3’s residence where he threatened RW3 that he had J17 the ability of influencing the reduction of his net salary if RW3 changed from the earlier report that the speedometer sensor was broken when the appellant was testing it on the Toyota Hilux. RW5 testified that he did not recommend RW3 to be charged with theft because it was the appellant, and not RW3, who took the sensor out of the company premises, and that by changing the statement and admitting that he had lied in the earlier report he gave, RW3 was remorseful and did the correct thing. 33. The 6th respondent’s witness was Inonge Mulonda Muyandi, a human resource manager in the respondent company. Her evidence was that the appellant’s services with the respondent were terminated on 19th September 2014 on grounds of theft and lying to a supervisor and the disciplinary process was duly followed by the respondent. The appellant was charged on 3rd September 2014 and he exculpated himself; appeared before a properly constituted disciplinary committee and was found guilty; following his termination, he appealed, albeit his appeal was not successful. 34. She further testified that there were no convincing grounds advanced by the appellant to disqualify Mr. Kennedy Kabaghe from being part of the disciplinary committee as there was nothing on record with regard to the purported acrimonious history between the two, and Mr. Kabaghe was based in Kitwe and had no interest whatsoever in the case at hand. 35. RW6 stated also that the appellant's line manager, RW4, could not be allowed to charge the appellant because he was also being investigated on an accusation raised by the appellant, and both of them were scheduled to appear before the same disciplinary committee. Furthermore, Mr. Francois Du Toit, the charging officer, could not be called to attend the disciplinary hearing because he had already left Zambia for South Africa where he was transferred. According to RW6, if the appellant had requested in writing for the respondent’s witnesses, the charging officer or the investigating officer to attend the hearing, the respondent could have facilitated their attendance, but the appellant did not make such request. Consideration of the matter by the High Court J19 36. After considering the evidence of and arguments advanced by the parties, the trial court found that there was no wrongfulness at play in the dismissal of the appellant as the respondent followed the disciplinary process. In its view, there was no irregularity or breach of the disciplinary code in senior managers at T3 level hearing the case of the appellant at T5 level, as this exception was provided for in clause 11.15.1 of the disciplinary code/staff manual. 37. It also found that there was no breach of procedure and neither was there unlawfulness or unfairness in the termination of the appellant’s employment as the actions by the respondent’s officers were appropriately justified and done in accordance with the respondent’s staff manual. 38. Guided by the case of Attorney General v Richard Jackson Phiri,1 the trial court found that on the facts before it, the respondent was justified in taking the disciplinary measure it took against the appellant and that the dismissal was not in bad faith nor was it against natural justice. Further, that the appellant did J20 not deserve the compensation that he claimed as damages for unlawful and unfair termination of employment, and damages for mental anguish and distress caused by the loss of employment, as his dismissal was justified. 39. The appellant’s claim was, accordingly, dismissed for lacking merit. The grounds of appeal to this Court 40. The appellant has now launched an appeal to this court advancing eight grounds as follows: 40.1 The learned trial judge in the court below erred in law and in fact when he found that there was no irregularity or breach of the disciplinary code, when the constitution and composition of the disciplinary committee was contrary to the provisions of the respondent’s staff manual. 40.2 The learned trial judge in the court below misdirected himself in law and fact when he found that Kennedy Kabaghe was qualified to sit on the disciplinary committee contrary to the provisions of paragraph 11.15.1 of the respondent’s staff manual 40.3 The learned trial judge misdirected himself in law and fact when he held that there was no breach of procedure and [unlawfulness or] unfairness in the termination of the appellant’s employment. J21 40.4 The learned trial judge erred in law and fact by finding as a fact that the offences of theft and lying to a supervisor were established, when in fact not. 40.5 The learned trial judge erred in law and fact by misapprehending facts, taking into consideration hearsay evidence and extraneous matters that were not before the court. 40.6 The learned trial judge erred in law and fact when he held that the appellant’s termination of employment was not done in bad faith and not against natural justice and was justified, yet the appellant was denied the opportunity to cross­ examine his accusers. 40.7 The learned trial judge in the court below erred in law and fact when he held that the appellant does not deserve the compensation claimed in damages for unlawful and unfair termination of employment, for mental anguish and distress as the dismissal was justified. 40.8 The learned trial judge erred in law and fact when he failed to consider the appellant’s submissions in their entirety regarding procedural inadequacy and impropriety on the part of the disciplinary committee. Arguments presented by the parties in the appeal 41. In support of ground one, the learned counsel for the appellant submitted that disciplinary codes and/or staff manuals stipulate the conditions and terms of service of an employee and that the rules and regulations laid out in any such document will be considered law and must be abided by all the parties involved. J22 According to her, a contract of service carries with it as much weight as a statutory provision and as such a breach of either of the two must surely culminate in an unfair and unlawful dismissal. 42. She relied on the case of Contract Haulage Limited v Kamayoyo2 where it was held that: “...where the procedural requirements before disciplinary action are not statutory, but merely form part of the conditions of service in the contract between the parties, a failure to follow such procedure would be a breach of contract, and could possibly give rise to a claim for damages for wrongful dismissal...” 43. We were also referred to the case of Undi Phiri v Bank of Zambia3 which cited the English case of West Midlands Co-operative Society v Tipton4 where it was held as follows: “... Failure to follow a procedure prescribed in the code may lead to the conclusion that a dismissal was unfair.” 44. That further in the judgment, the court stated that: “...what the defendant is alleged to have breached is the plaintiffs contract of service relating to discipline and not statutory. The breach does not vitiate the discharge because on the evidence we are satisfied that the plaintiff had committed dismissible offences. 45. She, therefore, argued that only if there exists sufficient and substantiated evidence of an offence can the employer deviate from adhering to the disciplinary code. In the present case, counsel contended, the respondent continuously deviated from its disciplinary code and therefore breached the contract that existed between the parties. This action, she contended, must automatically operate to vitiate the appellant’s discharge from employment and render the same unfair and unlawful as the respondent terminated the appellant’s employment without any evidence to substantiate the charges against him. The case of Miriam Shabwanga & 5 Others v Zambia Telecommunication Company Limited5 was cited as authority for the principle that a breach of a disciplinary code will amount to a breach of contract. 46. In arguing ground two, counsel began by referring us to clause 11.15.1 of the respondent’s staff manual which states that: “A member shall not sit or act as a member of the committee if he or she has any interest, direct or indirect in any matter before the committee.” 47. She argued that there existed a conflict of interest with Mr. Kennedy Kabaghe as against the appellant and as such he should J24 have not been a member of the disciplinary committee that sat to adjudicate the matter as against the appellant. She pointed that the appellant did expressly object to the inclusion of Mr. Kabaghe on account that he had an indirect interest in the matter and would prima facie have a bias against the appellant as the two shared an acrimonious history and thus, he should have declared a conflict of interest and subsequently recused himself from the proceedings to serve the ends of justice. 48. She contended that the prudent course of action for the disciplinary committee to have taken at the point at which the appellant raised his objection would have been to either replace Mr. Kabaghe or in lieu open an inquiry as to the veracity of the appellant's objections to Mr. Kabaghe forming part of the quorum. However, the respondent failed to do either and instead opted to unreasonably discard the appellant’s objection without even a brief check of facts or contemplation on how Mr. Kabaghe’s presence would impact the rules of natural justice. 49. Relying on the case of R v Sussex Justices, ex parte McCarthy,6 she submitted that even the fiction of bias is enough for J25 proceedings to be deemed prejudicial from the onset and that the appearance of bias will exist even if there is an indirect pending issue unrelated to the matter at hand. According to counsel, the appearance of bias must always command the same outcome as if actual bias did in fact exist. Thus, the objections to Mr. Kabaghe is not that there was actual bias but rather that there was a perceived bias stemming from issues outside the purview of this matter. On the question of perceived and actual bias, she cited the case of Zambia Telecommunications Company Limited v Celtel Zambia Limited.7 50. She argued that the rules of natural justice must be strictly adhered to in employment matters as employment involves the livelihood of an individual and as such, disciplinary procedure need not be broken or bent in order to telegraph a particular outcome. She added that an interested party must not sit on a disciplinary committee panel regardless of whether there exists no direct interest as the test is that of a perceived bias. Thus, where such bias exists then it is unethical for one to sit as an adjudicator J26 on a disciplinary panel. The case of National Breweries Limited v Phillip Mwenya8 was called in aid. 51. Citing the case of Zambia Airways Corporation Limited v Gershom Mubanga,9 counsel contended that the mere presence of an interested individual as a party to disciplinary proceedings must render the same null and void ab initio. As such, Mr. Kabaghe should have declared a conflict of interest and recuse himself or he should have been forced to recuse himself because his presence on the committee rendered the proceedings null and void and proved that the rules of natural justice were not adhered to. 52. In support of ground three, it was submitted that the respondent breached clauses 11.15.1, 11.15.2, 11.15.5 and 11.2 of its staff manual. She referred us to clause 11.15.1 which provides that: “The Committee shall comprise T4 managers, unless circumstances dictate that the accused is of a higher grade than T4, then Senior Managers/TTAF may be involved.” 53. She highlighted that with the exception of RW6, all the members of the appellant’s disciplinary committee were at T3 level when ideally the committee was meant to consist entirely of managers J27 at T4 level. However, RW6 sought to justify the inclusion of T3 managers by stating that: “The reason that T3 had to sit was that circumstances demanded that he involves them as Mr. Siisii’s case was linked to his line Manager who was facing charges relating to Mr. Siisii’s case. When the case started Mr. Siisii raised some issues about his Manager and his Manager was charged for poor supervising and appeared under the same Committee.” 54. She argued that even if the line manager’s case was considered incidental to the appellant’s, the fact that the appellant and his manager were not co-accused meant that both matters must be deemed to be separate and must be treated differently. Therefore, counsel argued, the respondent cannot justify the T3 managers forming part of the quorum that adjudicated over the appellant’s matter by simply stating that it was the same quorum that sat to hear his manager’s matter as the appellant and his manager were of two different classes, charged with two different offences and as such should have been treated differently as per the respondent’s staff manual. Reliance was placed on the case of Chilanga Cement v Kasote Singogo.10 55. Counsel contended that the appellant’s case was distinct from his J28 manager’s case regardless of the fact that the manager’s case was premised on an allegation he made. Further, that clause 11.15.1 is clear and only provides one exception to the stipulated T4 managers forming the committee; the appellant was at T5 level and as such T4 managers were the only competent individuals allowed to sit on his disciplinary committee panel. The appellant’s manager was at a T4 level and as such warranted T4 managers as well for his disciplinary committee. The only exception that the provision makes is when T3 managers are allowed to form a quorum of a committee that is if the accused person is of a higher grade than T4. 56. That by the provisions of clause 11.15.1, even the appellant’s manager was to have T4 managers only on his disciplinary committee. Therefore, counsel contended, the respondent cannot seek to justify the involvement of T3 managers by claiming that the cases were intertwined. Thus, the presence of T3 managers was a breach of procedure and must be enough to render the whole process a nullity in the eyes of the law. J29 57. Counsel also referred us to clause 11.15.2 of the staff manual which states that: “The hearing will be attended by the employee, charging manager/supervisor, investigating officer(s) and any witnesses. The charging manager/supervisor shall not be the chairman of the meeting. The chairing should be delegated to someone who was not involved in the charging of the accused. The charging manager/supervisor shall open his/her case, reading out the charge(s). The charging manager/supervisor shall then give evidence in support of the charge, and may call witnesses where necessary. The accused employee or committee may question the charging manager/supervisor or any of the supporting witnesses.” 58. She submitted that this clause affirms that the respondent must give ample opportunity to the appellant to cross-examine the charging officer and any supporting witnesses. 59. We were then referred to clause 11.15.2 of the staff manual which states that: “All material facts alleged must be proved by evidence,” 60. According to counsel, the respondent adduced no evidence to support the claim that the speedometer sensor was lost or that the speedometer was broken, all that was presented was shaky J30 witness testimony which should not have been relied upon. That neither RW3 nor RW4 helped the court establish what the facts during the material period were as both were indecisive on whether the speedometer sensor was stolen or indeed just broken. 61. Relying on the case of Bank of Zambia v Kasonde,11 she argued that facts alleged must always be substantiated by evidence if they are to be afforded any probative value by the courts of law and as such, where facts are not proven then they must not be relied upon. However, none of the charges levelled against the appellant were even partly substantiated. Therefore, the committee in deciding against the appellant came to a verdict of guilty with no evidence other than oral testimony from individuals who had no real clue during trial as to what the facts of the case actually were. That since no evidence was adduced in the present case to prove his guilt, the same is still very much in dispute. 62. Our attention was then drawn to section 11.2 which, according to counsel, affirms that the respondent must adhere to the principles of natural justice and reads as follows: “To ensure that all the principles of natural justice are applied J31 before an employee is dismissed. 63. In arguing ground four, counsel submitted that there is nothing in the record of proceedings or in the record of appeal that points towards the appellant’s guilt and that it is impossible with the evidence adduced during trial to infer that the appellant was guilty of an offence which would warrant any kind of dismissal. Thus, it was unfair for the learned trial judge to have found as a fact something that the respondent themselves did not prove. That although the respondent alleged that the appellant had stolen a speedometer sensor, none of the witnesses it called to attest to the allegation proved reliable and no testimony was given that would allude to the appellant’s guilt. 64. Counsel questioned how the learned trial judge could have made a finding of fact that the appellant was guilty of theft if RW2 stated that he did not know who brought the sensor back to the gearbox. She argued that if the sensor was brought back to the gearbox how then could the judge deem it to be a fact that the sensor was stolen by the appellant, when in fact he was not even the one to have taken it from RW2’s work bench. In any case, RW3 gave evidence J32 that the sensor in question was to be tried on another vehicle and not that there was ever an intention to deprive the respondent of the same. 65. That on the question of the incompatibility of the two sensors, the appellant adequately addressed the issue when he testified at page 262 of the record that: “I did ask Mr. Silomba why he was using the Land Cruiser Sensor on the Hilux he told me the connector was the same and I confirmed this as well.” 66. This testimony, she contended, makes it conceivable that despite the sensors being different and incompatible for purposes of usage, they do however have the same connector which would in effect allow the same to be tested interchangeably. Further, it helps the appellant to prove his innocence in that the respondent’s witnesses continually pointed out that the sensors were different, all the while ignoring that indeed the two sensors were interchangeable for purposes of testing the functionality of the same, a fact that the appellant reiterated when speaking against the allegations of theft levelled against him. Our attention was drawn to the testimony of RW4 in the record of appeal who stated that: “I then called the technician who removed the sensor Mr. Lottie Silomba. Mr. Silomba told me they were trying it on the Hilux.” 67. Counsel contended, therefore, that three respondent witnesses clearly attested to the fact that the speedometer sensor in question was not at all missing, and that the sensor was moved by a technician for purposes of testing only. She emphasized that he who alleges must prove and that since the respondent itself could not prove that the appellant was guilty, the learned trial judge should not have made a presumption of guilt. Relying on the case of Wilson Masauso Zulu v Avondale Housing Project Limited,12 she submitted that the finding of fact that there was theft is a perverse one as it was arrived at without any relevant evidence and should, therefore, be reversed. 68. Counsel also argued that the court has a duty to ensure that the disciplinary procedure was exercised in due form and this involves the court taking a closer look at the procedure undertaken to ensure that the same was not merely a fayade to escape liability. Where this due form is not exercised, the court has a duty to dig J34 deeper by considering whether there were facts established to support the disciplinary measure as the exercise of power will be regarded as bad if there are no facts to support it. In support of this argument, she referred us to the Richard Jackson Phiri1 case and contended that the learned trial judge’s finding of fact that there was a theft is therefore invalidated because there was never any substantiating evidence adduced to establish or reasonably infer that the appellant was guilty of the offence of theft. 69. In arguing ground five, counsel submitted that although the Industrial Relations Court is obligated under section 85(5) of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia to dispense substantial justice and shall not be bound by the evidentiary rules that courts of formal justice abide by, this cannot be construed to mean that the rules of evidence are unequivocally side-lined and will not apply to the Industrial Relations Court. Reliance was placed on the case of Boart Longyear (Zambia) v Austin Makanya.13 70. It was his contention that in the learned trial judge’s dispensing of substantial justice he did not consider the appellant at all and took J35 an approach that was solely beneficial to the respondent, which in effect strays from the basic principles of substantial justice itself. According to counsel, the lower court improperly allowed hearsay evidence which had a bearing on the outcome of the case. We were referred to the testimony of RW5 who stated that: “... Mr. Silomba changed his statement because he told me that Mr. Siisii was threatening him and had been to his house in Rhodes Park and he went on to show me several calls he received from Mr. SiiSii which Mr. Siisii declined ever making...” 71. It was pointed out that RW5’s testimony was plagued with hearsay and extraneous matters that should have never been considered as RW3 himself had previously been on the witness stand and did not mention any such harassment aimed at him from the appellant. That in any case, the record indicates that RW3 resides in Chilenje and not Rhodespark as put by RW5. This inconsistency, therefore, prejudiced RW5’s testimony and the court should have taken extra care in affording such a testimony any probative value. Counsel, accordingly, contended that there was no reason to stray from the rules of evidence as it was by those rules that justice would have prevailed in the matter. 72. In support of ground six. it was submitted that clause 11.15.2 of J36 the respondent’s staff manual which governs the working of an actual disciplinary hearing explicitly affords the appellant the right to cross-examine the charging officer and witnesses and it is a prerequisite that the charging officer must be present. However, the charging officer’s mandate goes beyond just being present but also that he must open the case by reading out the charges as this was a requirement under the staff manual. As such, a breach of the same would amount to breach in procedure. Additionally, counsel submitted, it is a requirement under clause 11.15.4 of the staff manual that any individual with intimate facts of the case must be present during the hearings. 73. Counsel argued that the charging officer and investigating officer were both absent in the present case and that the appellant was not given an opportunity to cross-examine witnesses or to call his own which inhibited his right to a fair and just trial thereby tainting the disciplinary proceedings to a point where this court cannot willfully ignore the respondent’s neglect when it failed to comply with proper disciplinary procedure. J37 74. In arguing ground seven, counsel submitted that the appellant was made to endure all kinds of mental distress throughout the disciplinary procedure and after the loss of his employment. As such, this was a proper case for the appellant to be awarded damages for mental anguish and inconvenience due to the manner in which he was treated by his employer, the respondent. Reliance was placed on the cases of Attorney General v Mpundu14 and Chilanga Cement Plc v Kasote Singogo.10 75. She emphasized that the respondent breached procedure as the disciplinary process was marred with various procedural improprieties and as such, a breach of the contract between the appellant and the respondent must attract liability as against the erring party being the respondent. She also contended that the appellant is entitled to damages for unfair and unlawful termination and damages for mental anguish and distress as a direct result of the unlawful termination of his employment. 76. In arguing ground eight, counsel relied on the cases of Minister of Home Affairs and Another v Habasonda,15 Zambian Breweries Plc v Lameck Sakala16 and Zambia J38 Telecommunications Company Limited v Mulwanda and Others17 and submitted that in passing judgment, the trial court did not reveal a review or summary of the submissions bringing into question whether it had recourse to the appellant’s submissions. This was based on the premise that the submissions of the appellant in the lower court clearly outlined the impropriety on the part of the disciplinary committee. They also alluded to the fact that the disciplinary committee was not constituted in accordance with the staff manual which forms part of the conditions of service contained in the contract of employment. Therefore, counsel argued, the lower court’s decision that the disciplinary committee was duly constituted was erroneous as the evidence on record proves to the contrary. 77. She also contended that the judgment of the court below did not reveal a review on its findings of fact particularly regarding the status of the sensor in addition to other allegations placed against the appellant. According to counsel, the trial court found as a fact that the appellant had stolen the sensor in question yet the judgment did not allude to how the trial court came to such a J39 conclusion given that all the witnesses and evidence laid before the court did not establish as to whether it was stolen or broken as the whereabouts of the sensor were never established. As such, the judgment of the lower court was lacking in the aspect of a review of the evidence and submissions. As a result, the appellant may have suffered injustice. We were accordingly urged to allow the appeal and overturn the finding of the lower court with costs. 78. In response to ground one, counsel for the respondent disagreed with the proposition that the breach of an employment contract would in effect have the same teeth as a breach of a statutory provision. He pointed out that the Contract Haulage Limited2 case relied on by the appellant involved the dismissal of a former employee of a parastatal and the question was whether there was a statute which specifically provides that an employee may only be dismissed if certain proceedings are carried out; whereas in the present case, the respondent company is not a parastatal company but a private company, therefore, its disciplinary code is not statutory in nature. J40 79. He referred us to the case of Zambia National Provident Fund v Chirwa19 where it was held that: “Where the procedural requirements before disciplinary action are not statutory but merely form part of the conditions of service in the contract between the parties, a failure to follow such procedure would be a breach of contract and could possibly give rise to a claim for damages for wrongful dismissal but would not make such dismissal null and void.” 80. Accordingly, it was argued that since the respondent is a private company with a disciplinary code that is not statutory, it means that if there was a breach of contract the dismissal is not null and void on the basis of failure to follow procedure. Consequently, such a breach cannot carry the same weight as the breach of statutory provisions. 81. In response to ground two, counsel submitted that clause 11.1.15.1 is clear and unambiguous; its meaning is to the effect that persons with interest in any way whatsoever should not sit with respect to that particular matter. He contended that there was no conflict of interest when Mr. Kennedy Kabaghe sat as a member of the committee to hear the matter against the appellant as there was no known acrimonious relationship between him and J41 the appellant. Relying on the Undi Phiri3case, he argued that even in cases where the appellant objects to some members of his disciplinary committee then the appellant cannot still use it as a ground to render a rightful dismissal unfair or unlawful. According to counsel, the appellant had the burden of proving that he had an unfair disciplinary hearing on account of Mr. Kabaghe forming part of the quorum and that his perceived bias or conflict of interest had the potential to erode the sanctity of impartiality or fairness of the hearing. However, he merely stated that he had an acrimonious relationship with Mr. Kabaghe, he did not demonstrate how that would be construed to be a conflict of interest either directly or indirectly and relating to the case at hand. It was his submission that Mr. Kabaghe had no interest in the case at hand. He cited the case of Ward v Bradford Corporation19 in support of his argument. 82. In response to ground three, counsel referred us to the case of Caroline Tomaidah Daka v Zambia National Commercial Bank20 and submitted that unfairness is linked to breach of statutory measures that prevent the employer from arbitrarily J42 terminating contracts of employment except on specified and reasonable grounds. That in the present case, the appellant’s contract of employment was terminated on the grounds of theft and lying to a supervisor which are reasonable grounds for terminating anyone’s employment. 83. Concerning clause 11.15.1, it was argued that the disciplinary committee that heard the appellant’s matter comprised of T3 panelists and not T4 panelists as that is what was required by the circumstances of this case as the same panel heard the case of Danny Kalale and RW4, the appellant’s immediate supervisor at T4 level. According to counsel, the wording of clause 1 1.15.1 of the staff manual is not absolute, therefore, it leaves room for a panel to be comprised of members above T4 level if that is what is required. That the appellant was at T5 level while his immediate supervisor was at T4 level and they had to appear before the same disciplinary committee because while their charges were different, their cases were interrelated as his supervisor’s case arose from a statement made by the appellant. Therefore, since the supervisor’s case stemmed from the appellant’s case it was paramount that the J43 committee that heard one case heard the other; it was for this reason that the committee was comprised of T3 members whose grade was higher than that of the appellant and his immediate supervisor. 84. Regarding clause 11.15.2, counsel contended that the appellant had the right to cross-examine the challenging manager or supervisor or any or all of the supporting witnesses but chose not to exercise that right as he did not request to do so in the disciplinary hearing; and that the respondent did not in any way prevent the appellant from cross-examining the charging officer and any or all the supporting witnesses. 85. As to the requirement under clause 11.15.5 that all material facts must be substantiated, it was argued that the respondent relied on information gathered from the appellant, RW2, RW3 and the investigation report; the appellant himself admitted that the removal of the speed sensor was not allowed; and he also admitted to removing the sensor from the Land Cruiser with RW3. That it is unclear as to whether or not the sensor broke during its removal because there are conflicting statements from the appellant. 86. Counsel highlighted that the respondent adduced evidence to J44 show how speed sensors are incompatible and also presented witnesses to substantiate facts. He added that the fact that the appellant admitted to removing the speed sensor from the Land Cruiser without the requisite permission and gave conflicting statements to his supervisor speaks to his guilt. Relying on the National Breweries Limited8 and Zambia National Provident Fund18 cases, he submitted that the appellant cannot claim that failure, if any, by the respondent to follow the procedure laid down in its own disciplinary code renders the termination of the contract of service unfair and unlawful. 87. With respect to clause 11.2, counsel argued that the respondent adhered to the principles of natural justice by giving the appellant the chance to exculpate himself before the disciplinary committee. Therefore, counsel contended, his right to be heard was respected when he wrote an exculpatory letter and he appeared before the disciplinary committee to exculpate himself. 88. In response to ground four, counsel referred us to the case of Chimanga Changa Limited v Stephen Chipango Ngombe21 and J45 submitted that the respondent acted reasonably when it came to the conclusion that the appellant had committed the offences in question as the appellant was given the opportunity to exculpate himself and it was only when he failed to give a satisfactory explanation about the alleged misconduct that he was dismissed from his employment. Further, that the respondent also carried out investigations into the matter. 89. He argued that the main findings of the report were contrary to the appellant’s assertion in that no testing of any speedometer sensor ever took place at Nangwenya workshop as no record of such a test was found on any job card or other documents that RW5 looked at; the speedometer sensor for a Land Cruiser is very different from that of a Toyota Hilux on which the appellant claimed to have tested the sensor; RW3 disowned the appellant’s version of events when he realised the seriousness of the offence; and there was no need for the appellant to go and source a replacement sensor from outside unless he was hiding something from the respondent. 90. According to counsel, the only logical conclusion that the respondent could come to from the finding of the investigations J46 was that the appellant stole the sensor and had lied to his supervisor about what happened to it. That not only did the appellant fail to give a satisfactory explanation about the alleged misconduct in question but his conduct was dishonest. Citing the cases of Stockdale v Woodpecker Inn Limited and Spooner22 and Edward Mweshi Chileshe v Zambia Consolidated Copper Mines,23 he contended that an employer has the right to terminate an employee’s contract of service if the conduct of the employee is such that the employer lost trust in the employee and, therefore, the respondent had the right to dismiss the appellant’s contract of service as a result of this loss of trust. 91. We were also referred to the case Pamodzi Hotel v Godwin Mbewe,24 where this court held that: “The decision to dismiss cannot be questioned unless there is evidence of malice or if no reasonable person could form such an opinion.” 92. Counsel submitted that the charging of the appellant was backed by evidence and as such the respondent was within its right to discipline the appellant as it did. 93. The respondent’s arguments in response to ground five, were that J47 after a party does not object to the evidence of an unpleaded matter then the party cannot later on complain if the court considers the evidence presented to him as it is the court’s duty to determine a matter based on all the evidence presented to it. For this proposition, counsel cited the case of Mazoka and Others v Mwanawasa and Others25 and the Undi Phiri3 case. He submitted that the appellant cannot present this appeal on the ground that the court should not have considered the evidence from RW3 and RW4 because the appellant had the opportunity to object to the evidence complained about but did not do so. As a result, the appellant should be precluded from appealing on the basis that the court considered evidence on an unpleaded matter as it is too late in the day and this issue was not canvassed in the lower court. 94. In response to ground six, counsel relied on the case of Khalid Mohammed v Attorney General26 and argued that the appellant has not proven that his termination of employment was unfair and against natural justice and unjust. Thus, he is not entitled to have judgment in his favour. He contended that the respondent acted J48 reasonably in coming to a decision to summarily dismiss the appellant on the basis of the available evidence. In support of this argument, we were referred to the cases of Zambezi Ranching and Cropping Limited v Lloyd Chewe27 and Mary Musole v Borassus Estates Limited.28 95. In response to ground seven, counsel reiterated that the appellant has failed to prove that his dismissal was unfair and unlawful and therefore this ground of appeal must fail. Regarding the claim for compensation for mental anguish and distress, counsel relied on the Chilanga Cement10 case where it was held that: “An award for torture or mental distress should be granted in exceptional cases, and certainly not in a case where more than the normal measure of common law damages have been awarded. 96. It was his submission that this is not an exceptional case in which this court should grant compensation for mental anguish and distress. He also contended that as a general rule, the court only awards damages which were or should have been in contemplation of the parties at the time when the contract was made. The cases of Chipungu Chilufya Dzekedzeke v Zambia Tele­ communications Company Limited29 and Hadley v Baxendale30 were called in aid. J49 97. In response to ground eight, it was argued that there was no procedural inadequacy and impropriety on the part of the disciplinary committee for the learned trial judge to have rendered the termination of the contract of service unfair or unlawful. According to counsel, the appellant committed an offence which was dismissible, therefore, any procedural errors by the disciplinary committee could not render his dismissed unfair or unlawful. 98. He also contended that the trial court was under no duty to consider the appellant’s submission regarding procedural inadequacy and impropriety on the part of the disciplinary committee as the trial court’s only mandate was to examine if the disciplinary committee had the necessary disciplinary power and if it was exercised properly. To buttress his argument, he cited the case of Zambia Electricity Supply Corporation Limited v David Lubasi Muyambango.31 99. Relying on the case Zambia Revenue Authority v Hitech Trading J50 Company Limited,32 it was submitted that the submissions by counsel cannot override the sworn evidence that had graced the court’s record and as such the submissions can never be a basis for finding in favour of the appellant or indeed to overturn the judgment of the court below that had the benefit of seeing, hearing the testimony of the witnesses and observing their demeanour. Further, that the respondent invoked the grievance in a fair manner as the allegations against the appellant were substantially substantiated. Counsel, therefore, urged us to dismiss the appeal with costs. 100. At the hearing of this appeal, both counsel indicated that they would rely on their written heads of argument. However, counsel for the appellant augmented grounds two and three of the written heads of argument. She referred us to the case of Zambia Electricity Supply Limited31 where this court stated that: “The duty of the court is to examine if there was the necessary disciplinary power and if it was exercised in due form.” 101. Counsel also referred us to the case of Kalumbila Mines v Kabamba34 where we stated that: J51 “The duty of the trial court is to consider whether the disciplinary body was duly constituted in accordance with the disciplinary and grievance procedure code applicable to the institution.” 102. She submitted that firstly, there was an objection raised by the appellant before the commencement of the disciplinary proceedings that he was uncomfortable with the inclusion of Mr. Kennedy Kabaghe with whom he had an acrimonious history. Despite the objection, the disciplinary committee proceeded to hear and determine his case. Secondly, that the disciplinary code specifically states that it is the T4 officers that are to sit on the disciplinary committee. However, the appellant being a T5 was subjected to a disciplinary committee of T3 instead of T4 officers. Consideration of the appeal and determination by the court 103. We have painstakingly considered the record of appeal, the judgment appealed against and the arguments advanced by the parties. We propose to start by considering grounds one, two, three and six collectively as they have raised interrelated issues regarding the appellant’s disciplinary hearing and the manner in which it was conducted. We will then deal with grounds seven, eight, four and five seriatim. 104. The thrust of grounds one, two, three and six is that the lower court erred by finding that there was no breach of procedure or the rules of natural justice and no unfairness in the termination of the appellant’s employment when the constitution and composition of the disciplinary committee was contrary to the provisions of the respondent’s staff manual and further, when the appellant was denied the opportunity to cross-examine his accusers. 105. The contention of the appellant is that the disciplinary committee which heard his case ought to have been comprised of managers at T4 level instead of T3 level as per clause 1 1.15.1 of the staff manual and that the respondent cannot justify the inclusion of T3 managers by stating that the same quorum sat to hear his manager’s matter. 106. From our reading, clause 11.15.1 does in fact stipulate that the disciplinary committee be comprised of T4 managers unless the J53 accused is of a higher grade than T4. In the present case, the appellant was at. T5 level whereas his line manager (RW4) was at T4 level. Going by the provisions of clause 11.15.1, the circumstances did not allow for the inclusion of T3 managers on the disciplinary committee which heard their cases. The only persons competent to hear their cases, as pointed out by the appellant, were T4 managers. 107. Notwithstanding the foregoing, the appellant has not disclosed what prejudice, if any, he suffered as a result of the T3 managers hearing his case. Furthermore, we have perused the minutes of the appellant’s disciplinary hearing and have noted that he never raised any objection at the said hearing as to the issue of the T3 managers forming part of the quorum of the disciplinary committee. The issue was only raised by the appellant in his notice of complaint in the court below and therefore, in our view, was an afterthought. 108. The appellant also contends that Mr. Kennedy Kabaghe should not have been a member of the disciplinary committee that sat to hear his case as he (Mr. Kabaghe) had an indirect interest in the matter J54 in that the two shared an acrimonious history and he would have a bias against the appellant. According to the respondent however, there was no known acrimonious relationship between the appellant and Mr. Kabaghe. Further, that the appellant had the burden of proving that he had an unfair disciplinary hearing on account of Mr. Kabaghe forming part of the quorum and his perceived bias or conflict of interest had the potential to erode the sanctity of impartiality or fairness of the hearing. 109. As we see it, the previous history between the appellant and Mr. Kabaghe has nothing to do with the disciplinary case which the appellant was facing. Further, the appellant did not adduce any evidence at the disciplinary hearing or in the court below to substantiate his accusation of apparent bias on the part of Mr. Kabaghe. His alleged apprehension of partiality- is, therefore, unfounded. 110. It was also the appellant’s contention that he was denied the opportunity to cross-examine the charging officer and investigating officer in his disciplinary case as they were not present at the hearing, thereby inhibiting his right to a fair and J55 just trial. Having perused the minutes of the disciplinary hearing, we agree with the respondent that no request was ever made by the appellant at the hearing for him to cross-examine his accusers and, therefore, he cannot now be heard to say that he was denied the right to do so when he made the choice not to exercise that right. 111. For the foregoing reasons, we cannot fault the court below in finding that there was no unfairness in the way the disciplinary proceedings were conducted and the subsequent termination of the appellant’s employment as due process was followed. Indeed, on the facts before us, the appellant has failed to demonstrate any form of unfairness by the respondent in the termination of his employment. The four grounds of appeal, therefore, lack merit and they are accordingly dismissed. 112. We now turn to ground seven. In this ground, the appellant I attacks the lower court’s holding that the appellant does not deserve the compensation claimed in damages for unlawful and unfair termination of employment, for mental anguish and distress as the dismissal was justified. J56 113. In view of the conclusion we have reached in the four grounds above, we have no hesitation to hold that the trial court was on firm ground in declining to award the appellant such damages as he failed to prove his claims. Ground seven therefore lacks merit and we also dismiss it. 114. The grievance in ground eight is that the court below failed to consider the appellant’s submissions regarding procedural inadequacy and impropriety on the part of the disciplinary committee. On the other hand, the respondent’s position is that the trial court’s mandate was to examine if the disciplinary committee had the necessary disciplinary power and if the same was exercised properly. That it was under no duty to consider the appellant’s submission regarding procedural inadequacy and impropriety on the part of the disciplinary committee. 115. Again, having regard to the conclusions we have made above, we find merit in the respondent’s contentions. Moreover, we have guided in many of our decisions that submissions are only meant to assist the court in arriving at a decision. The court is not bound to consider them. See, for example, the case of Kitwe City Council v William Ng’uni.34 This ground equally lacks merit and it fails. 116. Coming to ground four, the appellant asserts that the court below erred when it found as a fact that the offences of theft and lying to a supervisor were established when in fact not. The appellant contends that there is nothing on record pointing to the appellant’s guilt as it was never proven that the appellant had stolen the speedometer sensor. On the other hand, the respondent’s position is that it acted reasonably in concluding that the appellant had committed the offences in question because the appellant was given an opportunity to exculpate himself and it was only when he failed to give a satisfactory explanation was he dismissed from employment. 117. We have addressed our minds to the judgment of the court below. The findings of fact made by the lower court appear at pages JI8 to J19 of its judgment as follows: “From the evidence led before the Court we found as facts the following; - 1. It is common cause that the Complainant herein was in the employ of the Respondent; J58 2. We find that on 3rd September, 2014, the Complainant was charged with the Offences of Theft of a Speedometer Sensor and Lying to a Supervisor; 3. It is also our finding that the Sensor of the Toyota Land Cruiser did not break when Lottie Silomba, under the Complainant’s instructions, was removing it from the Gearbox of the land Cruiser, and gave it to the Complainant; 4. It is common ground also that the Speedometer Sensors of a Toyota Hilux and that of a Toyota Land Cruiser are not compatible, they are completely different (exhibit TL4); 5. The Complainant went through the Disciplinary Process of being charged with the Offences (exhibit TL5); exculpated himself (exhibit TL6); a Disciplinary Case Hearing took place (exhibit TL8 and TL9) and the Complainant was found guilty of the offences; 6. We find that the Complainant was summarily dismissed from employment (exhibit HNS in [the] Complainant’s Affidavit in support of Complaint) and he appealed against his dismissal (exhibit HNS9) but the Appeal was not successful (exhibit TL12 in the Respondent’s Affidavit in support of Answer); 7. It is also our finding that the Complainant’s Disciplinary . Hearing Committee comprised Gilbert Mfuya (Chairman), Kennedy Kabaghe (Committee member) and Inonge Mungandi (Committee member) who were more Senior Managers to Michael Mbangweta (RW4) at T4 level, because the same Committee was tasked to simultaneously hold a Disciplinary Hearing for RW4 who had been accused by the Complainant (exhibit TL7). This was in line with Clause 11.15.1 bullet 4 in the Respondent’s Staff Manual as an exception. 8. The Complainant at T5 level disputed the composition of the J59 Disciplinary Committee. Following our findings of facts, we now proceed to determine whether or not there was Wrongful and Unfair dismissal of the Complainant by the Respondent, for which he is seeking Damages and other reliefs.” 118. From the foregoing, it is quite clear that the lower court did not make any finding of fact to the effect that the offences of theft and lying to a supervisor were established. We, however, note that at pages J24 to J26 of its judgment, the trial court did state that: “Following the evidence adduced in (i) to {iii) above, we find that there was no Breach of Procedure and there was no Unlawful and Unfairness in the termination of the Complainant’s employment as actions by the Respondent’s Officers were appropriately justified and done in accordance with the Respondent’s Staff Manual. To buttress our finding, we refer to the case of Attorney General v Richard Jackson Phiri where it was held that: “Once the correct procedures have been followed, the only question which can arise for consideration by the Court based on the facts of the case would be whether there were in fact facts established to support disciplinary measures, since any exercise of powers will be regarded as bad if there is no substratum of facts to support the same.” In casu, the facts established against the offences of Theft and Lying to a Supervisor/Superior are that: (i) The Speedometer Sensors of Toyota Land Cruiser and Toyota Hilux are not compatible, and so, each one of them cannot fit J 60 on the other vehicle; (ii) When the RW3 removed the Speedometer Sensor of the Land Cruiser at the request of the Complainant on 17th July, 2014, he gave it to the Complainant who took it out of the Company premises; (iii)The Sensor did not actually break in the process of being removed from the Gearbox of the Land Cruiser, contrary to what was reported by the Complainant to his Supervisor, RW4. It was in fact intact; (iv)The Complainant gave instructions to RW3 on what to tell/report to the Service Manager (RW4) or whoever inquired, and kept on threatening him with bad consequences in future, should he disclose the truth about the Sensor (breaking or not breaking); (v) The Complainant told his Supervisor that he would source the Speedometer Sensor from outside the Company premises to replace the ‘broken’ one. Considering this substratum of facts established and obtaining, the Respondent was justified to take the Disciplinary Measures that it took against the Complainant, and that the dismissal was not done in bad faith.” . 1 19. In our view, the expression that “the facts established against the offences of Theft and Lying to a Supervisor/Superior are that," referred to in the excerpt above were loosely used by the trial court to mean findings which the disciplinary committee made before effecting disciplinary measures against the appellant. It ought not J61 to be misconstrued as having implied that the same were findings of fact made by the trial court itself. The appellant has, therefore, misconstrued the judgment of the trial court in this respect. This ground of appeal lacks merit and it is also dismissed. 120. Finally turning to ground five, the appellant alleges error on the part of the court below for taking into consideration hearsay evidence and extraneous matters that were not before the court. 121. The respondent, on the other hand, argues that since the appellant did not raise any objection when the unpleaded evidence was adduced in the court below, he is precluded from appealing on this basis as the issue was not canvassed in the court below. 122. We have perused the proceedings in the court below and agree with the respondent that the issue of hearsay evidence and unpleaded matters was never raised by the appellant during the trial or in the submissions in the court below. In the case of Antonio Ventriglia Manuela Ventriglia v Eastern and Southern African Trade and Development Bank,34 we held that an issue that has not been raised in the court below cannot be raised on * appr ■ .> accordingly precluded from raising this stage of the proceedings. On that score, this ground : ‘ tai must also suffer the same fate as the other grounds. 123. All the grounds of appeal having failed, we dismiss this appeal in its entirety and uphold the lower court’s judgment. We, however, order that each party shall bear their own costs. E. C. MUYOVWE SUPREME COURT JUDGE A. M. WOOD SUPREME COURT JUDGE C. KAJI GA SUPREME COURT JUDGE