Leker v Bank of Zambia (Appeal 88 of 1998) [1999] ZMSC 126 (18 February 1999)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 88 OF 1998 HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) BETWEEN: FRED LEKER APPELLANT AND BANK OF ZAMBIA RESPONDENT CORAM: NGULUBE, CJ, CHAILA AND MUZYAMBA, JJS On 4th November, 1998 andl 8th February, 1999 For the appellant - Mr. Mumba Malila, of Phoenix Partners For the respondent - Mr. Albert M. Wood, of Wood and Company JUDGMENT Ngulube, CJ, delivered the judgment of the court. For convenience, we will call the appellant the plaintiff and the respondent as the central bank. The case arose from the days when foreign currency debts could be purchased and dismantled in a pipeline maintained by the central bank as and when foreign exchange became available. Certain monies were due to the plaintiff in assorted foreign currencies and by the terms of what was known as the viselva reinvestment scheme, it was agreed that 65% would be re-invested in Zambia while 35% would be remittable. Arrangements were made accordingly through the concerned commercial banks for the central bank to remit the portion which was remittable. Some remittances were made from time to time. By his writ, the plaintiff claimed that the central bank still owed some balances which ought to have been remitted and that these were US $309,492-85, sterling 0,392.30 and DM 153,066-27. The central bank had before action began sent the plaintiff a telex which confirmed the debt but after checking and verifying with the commercial banks and after taking into account what had been remitted and what was duplicated in the computations, they advised the plaintiff that only a sum of US $12,655-92 was in fact due to him and that the earlier telex was advised to him in error. The plaintiff nonetheless sued for the amounts we have already mentioned. The learned trial Commissioner upheld the defence and found that the plaintiff could not rely on certain internal memoranda of the central bank which he had managed to obtain; that the telex sent to the plaintiff based on such memoranda was a mistake; that there was no account stated between the parties on the basis of the erroneous telex and that in any case had the telex constituted an account stated it was a good defence to show that the account was stated by mistake or in error; that the plaintiff had failed to demonstrate with precision or at all how he arrived at the amounts claimed; and that the plaintiff who claimed to have suffered damage in reliance upon the telex failed to prove such damage. The grounds of appeal alleged errors and misdirections of law and fact in the findings of the learned trial Commissioner. One ground criticized the rejection of the internal memoranda with Counsel arguing that, on the authority of DAVIS JOCKEY KASOTE -v- THE PEOPLE (1977) ZR 75 and texts by the authors of Cross and Wilkins "Outline of the Law of Evidence", 5th edition at pages 221 and 226, illegally obtained evidence which is relevant is admissible in this country. As will become apparent, we do not consider it necessary for the decision in this case to dwell on the principle discussed in the KASOTE case nor to discuss the principles of possible privileged and equitable protection of confidential information. The plaintiffs position appears to have been that because he was previously advised by telex, the central bank should have been estopped from pleading mistake. There were in fact other documents on the record, some of them again internal memoranda but other documents written to and from the plaintiff and commercial banks which established the central bank's mistake. The factual position as it emerged at the trial was that by mistake which could not reasonably be disputed or gainsaid, the central bank advised the plaintiff that certain amounts were still outstanding but upon checking with the commercial banks they advised the plaintiff of the error and told him the correct position. This was that only the relatively small sum of slightly over US $12,000 was owed and which has since been paid on summary judgment being entered. The learned trial Commissioner dealt with all the aspects of the case which were urged before him. The plaintiff desired that the Court consider only the telex and the internal memoranda which supported his claim and that these should have been treated as an I. O. U. or an account stated. Pretty much the same sort of arguments and submissions have been advanced before us and we have duly considered all that we heard from Mr. Malila and Mr. Wood. We consider that it is misleading to look at an account stated in terms of estoppel. The learned authors of "Stroud's Judicial Dictionary", 4th edition include two definitions of an account stated which are rather apt, and which we quote, (at p.29 of Vol. 1):- ”(2) "An account stated, in the interpretation which is placed on the expression by the law of England, is mere evidence establishing only a prima facie liability and not in itself constituting a debt. If by such evidence an admission is shown of money being due, a promise to pay the amount is indeed inferred by the law. But the liability may be rebutted by disputing the debt charged in the account, as for instance by proving mistake among other ordinary defences" (per Lord Haldane in Camillo Tank Steamship Co. v. Alexandria Engineering Works, 38 T. L. R. 134, at p. 137). See Lord Finlay's judgment therein. (3) "There are two forms of account stated. An account stated may take the form of a mere acknowledgement of a debt, and in those circumstances, though it is quite true it amounts to a promise and the existence of a debt may be inferred, that can be rebutted, and it may very well turn out that there is no real debt at all, and in those circumstances there would be no consideration and no binding promise. But, on the other hand, there is an account stated which is a very usual form between merchants in business, in which the account stated is an account which contains entries on both sides, and in which the parties who have stated the account between them have agreed that the items on one side should be set against the items on the other side and the balance only should be paid; the items on the smaller side are set off and deemed to be paid by the items on the larger side, and there is a promise for good consideration to pay the balance, arising from the fact that the items have been so set off and paid in the way described" (per Lord Atkin, Siqueira v. Noronha (1934) A. C. 332)." The learned trial Commissioner was on very firm ground when he upheld the mistake which was established and when he required the plaintiff to offer proof of the claim, which proof was not forthcoming. In truth, there is no basis for us to interfere. The appeal is dismissed, with costs to be taxed in default of agreement. M. M. S. W. NGULUBE CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE