Mwansa Victoria Tembo v Standard Chartered Bank (Appeal 77 of 2001) [2002] ZMSC 104 (16 April 2002)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 77 OF 2001 HOLDEN AT KABWE [CIVIL JURISDICTION] BETWEEN: MWANSA VICTORIA TEM BO - APPELLANT AND STANDARD CHARTERED BANK - RESPONDENT CORAM: Sakala, JS; Chibesakunda, JS, and Mambilima, JS, on the 5th September, 2001 and 16th April, 2002. For the Appellant - Mr. M. Masengu of Michael Masengu & Co. For the Respondent - Mr. N. Mubonda of D. H. Kemp & Co. JUDGMENT MAMBILIMA JS, delivered the Judgment of the Court. Legislation referred to: (1) The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. This is an appeal from the decision of the Industrial Relations Court sitting at Ndola, in which the Appellants' claim for an Order that her dismissal from the employment of the Defendant was unlawful and unfair; and for payment of current salaries and benefits from the date of such termination to date^of Judgment. The Appellant's testimony was that in May, 1996, she was charged with dishonest conduct on allegations that she was concealing overdrafts contrary to Bank regulations, a charge which she denied. According to her, it was not her duty to supervise her boss. There were daily reports on overdrafts which would be sent to Ndola and these would be counter signed by the Appellant. Some overdrafts obtained by customers were not indicated in these periodic reports because they were reflected as loans for which there was no responsibility to give reports. The Appellant testified that she was not authorized to give out overdrafts but that she would pass on any applications for overdrafts to her boss. She told the Court that she did not know whether subsequent overdrafts given to customers were authorized. The Respondents evidence before the lower court was that there were fraudulent accounting practices at their Kitwe Industrial Branch, Members of staff and some corporate customers had unauthorized overdrafts. These overdrafts were not approved by the Senior Accounts Relationship Manager at Ndola and they were not known by the head office at Ndola South. It was a requirement that reports be prepared on overdrafts daily and monthly. Reports on loans were prepared monthly. Some overdrafts for staff and corporate customers would reflect as loans on the monthly reports. The Court below found that the Appellant was a party to the fraud because entries were reversed at the time of making the reports to reflect a situation which showed no unauthorized overdrafts. The Court was of the view that the conduct of the Appellant's Manager would have put a reasonable banker in the position of the Appellant on inquiry because her role could not have been merely to append her signature as a rubber stamp but that her signature was required for control functions. The Court found that the lapses on her part, were enough to allow the employer to dismiss her summarily. Before us, the Appellant has advanced two grounds of appeal; firstly that the lower Court misdirected itself in fact and law when it found that the Appellant was responsible and liable for her supervisor's misconduct. According to the Appellant, her Supervisor obtained approval of the overdrafts either by telephone conversation with Head Office or Ndola in writing. When returns were prepared, she signed them on the instructions of her supervisor. While the affected Managers had their employment contracts, the Appellant was the only Accounts Relationship Officer "fired." The second ground of appeal is that the lower Court erred in that under 4 (a) (d) of the Appellants Notice of Complaint, she asked the Court for payment of her accrued leave which she was not paid. Submitting for the Appellant on the first ground of appeal, Mr. Masengu referred us to the evidence of the Respondent's witness who said that a Junior's role was not to approve loans or overdrafts, but to appraise them. According to Mr. Masengu, the Appellant's role was to ensure that applicants for loans or overdrafts were Account holders and of good standing. Once this was done, everything is passed on to the supervisors for approval. He states further, relying on the evidence of the Respondent's witness that the Appellant signed the documents in issue under the instructions of her immediate supervisor and that she had nothing to do with the concealed overdrafts. On the second ground of Appeal, Mr. Masengu referred us to page 82 of the record of Appeal. This is a Memorandum from the Respondent's Manager; Employee Relations and Compensation to its Legal Counsel stating that the non payment of leave pay to the Appellant was an oversight on the part of the Bank. Mr. Mubonda, for the Respondent argued on the first ground of Appeal that the lower Court did not make any findings of either fact or law to the effect that the Appellant was responsible or liable for her supervisor's misconduct. In its Judgment, the lower Court found as a fact after hearing evidence 'that not only was the Appellant aware of the malpractice but that she was a party to it. According to Mr. Mubonda, this finding is supported by evidence. He referred us to the cross-examination of the Appellant and her exculpatory letter where she admitted counter signing the reports which were cheating Head Office. Mr. Mubonda also referred us to the Appellant's Job description. It includes ensuring compliance with Head Office requirements governing the Management of advances. He went on to state that the Respondent's witness explained the fraudulent activities. The unauthorized loans were concealed in reports which were signed by the Appellant. The Appellant failed to report the irregularities. ■e Mr. Mubonda submitted that the Court was right to hold that the Appellants role, was not merely that of appending her signature as a rubber stamp but that her signature was required for control functions. On the second ground of Appeal, Mr. Mubonda submits that the lower Court was right in not ordering payment for leave days as the Appellant owes the Respondent K8,000,000, 00. For this submission, he referred us to the Appellants evidence on page 27 of the Record of Appeal where on being challenged that she owed the Respondent K8 million, she replied that she would not know. We have carefully considered the evidence which was before the lower Court, the Judgment and the submissions of Counsel before us. The Court made a finding of fact on the evidence before it that the Appellant knew about the unauthorized overdrafts. She appended her signature to reports which concealed the overdrafts not as a rubber stamp but that her signature was required for control functions. Section 27 of the Industrial and Labour Relations Act (1) provides that "Any person aggrieved by any award, declaration decision or Judgment of the Court may appeal to the Supreme Court on any point of law or any point of mixed law and fact." In our view, there is no point of law raised in the first ground of appeal. The Appellant is raising issue on a finding of fact. The Court arrived at this finding after evaluating the Appellant's evidence and the evidence given on behalf of the Respondent. The Appellant has not demonstrated to us that this finding is perverse or that it is not supported by the evidence on record. The first ground of appeal therefore fails. On the second ground of appeal, we find that it is common cause that the Appellant is entitled to be paid for her leave days less any indebtedness to the Respondent. Mr. Mubonda has referred us to page 77 of the Record of Appeal which shows that on being challenged that she owed the Respondent K8 million kwacha, the Appellant replied that she would not know. The position is that the Appellant is entitled to be paid for leave days less any indebtedness she has to the Respondent. We accordingly order that she be paid for the said leave days less any indebtedness to the Respondent. We make no Order on costs. E. L. SAKALA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE I. C. MAMBILIMA SUPREME COURT JUDGE 6