Investrust Bank Plc v Intertrade Supply Limited [2019] ZMCA 361 (13 November 2019)

f (cid:9) S IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 104/2019 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: INVESTRUST BANK PLC NT AND INTERTRADE SUPPLY LIMITED RESPONDENT CORAM: (cid:9) Chashi, Mulongoti and Lengalenga, JJA On 25th September, 2019 and 13th November, 2019 For the Appellant: (cid:9) Mr. M. Nkole of Fraser Associates For the Respondent: (cid:9) Mr. W. Siyumbano of Mutemwa Associates JUDGMENT Mulongoti, JA, delivered the Judgment of the Court Cases referred to: 1. Sithole v State Lotteries Board (1975) ZR 106 2. Sablehand Zambia Limited v Zambia Revenue Authority (2005) ZR 109 3. Shawaza Fawaz and another v The People (1995) ZR 4. Indo Zambia Bank Limited v Lusaka Chemist Limited (2003) ZR 32 5. Base Chemicals Zambia Limited and another v Zambia Air Force and another (2011) ZR Vol 2 V 6. Nkhata and Four others v The Attorney General (1966( ZR 124 7. Khalid Mohamed v The Attorney General (1982) ZR 49 8. Fluid Base Industries Limited v Barclays Bank Limited Plc SCZ Appeal No. 125/2013 9. Girrafe Bus Services Limited v Abel Lwitiko Mwandema SCZ Judgment No. 4 of 2001 10. Bank of Zambia v The Attorney General (19 72) ZR 24 11. Barclays Bank of Zambia v Sky FM Limited and another (2006) ZR 51 (SC) 12. Canora Bank v Canora Bank Corporation and others (1987)2 SCR 1138 13. Attorney General v Achiume (1983 ) ZR 1 (SC) 14. Nkongolo Farms Limited v Zambia National Commercial Bank and others (2007) ZR 149 (SC) 15. Nwume v The People (1980) ZR 189 (SC) 16. Shreefl Investments Limited v Zambia National Commercial Bank PLC (2015) 1 ZR 14 (SC) 17. Bank of Ireland v Evans' Trustees 10 ER 410 Legislation referred to: 1. The Stamp Act 1853, section 19 2. The Bills of Exchange Act 1882, section 60 3. The Cheques Act, Chapter 424 of the Laws of Zambia, section 2(1) 1.0 Introduction 1.1 This is an appeal by the appellant, Investrust Bank PLC (Defendant in the court below) against the decision of Nkonde J, in which he found the appellant wanting for honouring two forged cheques drawn to the respondent's account. The trial Judge ordered the bank to credit the respondent's account for making payments on the forged cheques. J2 w 2.0 Background 2.1 (cid:9) The respondent, Intertrade Supply Limited, held an account number 010110002689015 with the appellant's Lusaka Main branch. The authorised signatories were the two directors; Mauto Chiyayika and Judith Sinzala Chiyayika. 2.2 The appellant paid out cheques in the amounts of K42,300.00 on 191h August, 2016 and K48,600.00 on 26th August, 2016, purportedly drawn by the respondent. 2.3 As a result of the two cheques being paid, the respondent sued the appellant alleging that the signature on the cheques was a forgery of the Director Mauto Chiyayika's signature. 2.4 The respondent averred that the two cheques bore neither of the submitted specimen signatures of their authorised signatories which was known by the appellant. The appellant therefore, had no authority to pay the cheques by debiting the respondent's account with the stated amounts. 2.5 The respondent claimed for a declaration that their account should be credited with the amounts on the two cheques with interest as the appellant was not entitled to debit its account with the amounts in the purported cheques. The particulars of forgery being that the cheques were not drawn or authorized by the J3 respondent as account holder but by an unknown person who unlawfully converted to himself the proceeds. 2.6 The appellant admitted that it did pay the two cheques (total K90,900.00) but averred that this was in its ordinary and normal course of business and that it did not fraudulently and or unlawfully pay the cheques. 2.7 It alleged that it was the respondent's duty to ensure that its cheque book and any information relating to its account was kept in a safe and secure manner. It denied having paid the amounts unlawfully or fraudulently. 3.0 Evidence Adduced in the Court Below 3.1 (cid:9) The testimony of Mauto Chiyayika, one of the two directors of the respondent and signatory to the respondent account, was to the effect that the respondent was issued with a cheque book bearing serial numbers 640400 to 640500. The two signatories to the account could sign a cheque to authorize a payment. The appellant usually verified, whenever a payment was issued and when a cheque was issued out of sequence, by calling any of the authorised signatories. 3.2 On 29th August, 2016 the witness discovered that two unauthorized withdrawals relating to cheque no. 640500 with the J4 amount of K42,300.00 dated 19th August 2016 and cheque no. 640483 dated 26th August, 2016 in the sum of K48,600.00 in favour of Ezekiel Machisa Mbuzi of Barclays Bank Limited. He immediately alerted the appellant and asked for the money to be paid back. The appellant refused. 3.3 After the appellant refused to pay, the respondent reported the matter to the police. The officer in charge of the Anti-Fraud Unit wrote to the respondent, letters at pages 168 and 169 of the record of appeal to the effect that the signature of Mauto Chiyayika on the two cheques was forged as it had dissimilarities between the disputed and provided specimen signature sample. The letter of 19th October, 2016 further stated that investigations were done by the forensic department. 3.4 The appellant called two witnesses. The first witness was Eunice Msoni Fundanga (DWI). She explained the technical verification or cheque image clearing process in the appellant bank. She testified that on 23rd and 26th August, 2016 she personally verified the cheques in dispute, and ensured that the signatures on the cheques conformed to the ones appearing on PW1's signature card at the bank. J5 3.5 In cross examination, she said she was not aware that the appellant verified with the respondent whenever cheques were issued out of sequence. The fact that the two cheques were issued out of sequence did not put her or the appellant on alert. She denied that the cheques were forged. When referred to the forged cheques at pages 221 and 222 of the record of appeal, DWI said the "C cuts the ir at page 417 of the record of appeal lines 5 to 8. When referred to page 208 of the record of appeal and shown the signature of PW1 at the time of opening the account, DWI said "not all of the 'C' cut the M1 at the bottom." 3.6 The second witness for the appellant was Manyando Emmanuel Sikanda, head of the appellants Operations Department. He handled the matter when it was brought to his attention by the Branch Manager. He discovered that the cheque book was in the custody of the respondent; there was no report from the respondent as regards a lost cheque book or lost leaves; and further that there were no express instructions for cheque confirmation before effecting payment. He explained that signatures are virtually correct if the signature on the check and on the mandate look the same from the view of the eye. He stated that there was no obligation on the appellant to confirm with a J6 client before effecting cheque payments. Thus, the appellant was not liable to reimburse the respondent. 4.0 Evaluation of the Evidence and Decision of the Lower Court 4.1 (cid:9) The trial Judge acknowledged that expert evidence would be ideal. However, that even though the handwriting expert did not testify before him, it would not defeat a customer's claim that a cheque is forged. Further, that as presiding Judge he had the duty to examine the signatures on the alleged forged cheques and see if they corresponded or are similar to the ones on the mandate at the appellant. 4.2 After analyzing the signatures, he concluded that the two cheques were forged. He found that the signatures are dissimilar as the letter 'C' made a complete contact with the letter 'M' on the mandate but it did not do so on the disputed signatures on the cheques. 4.3 He dismissed the appellant's averments that there was negligence by the respondent (PW1) in the handling of the cheque book. He also dismissed the respondent's testimony that each time cheques were issued out of sequence PW1 was called by the appellant. The Judge accepted DW1's explanation that apart from her not being J7 aware of such practice, it could not raise an alert as long as the cheques were within the range of the leaves in the cheque book issued. 4.4 Judgement was therefore, entered for the respondent because the evidence on forgery was cogent enough and that the plaintiff had proved its case against the defendant and granted the only relief claimed; the court declared that the appellant was not entitled to debit the respondent's account with the forged cheques for amounts of K42,300.00 and 1(48,600.00 dated 19th August, 2016 and 26th August, 2016 respectively. 5.0 The Appeal 5.1 Aggrieved by the Judgment, the appellant appealed to this Court on the following grounds: 1. The erudite Judge in the court below erred in law and fact when he found that the two cheques were forged based only on his own impressions after examining the two cheques Instead of basing such finding on evidence adduced by the respondent. 2. The erudite Judge in the Court below erred in both law and fact by failing to satisfy himself as to whether or not the respondent had discharged its burden of proof as required in cases of forgery and or fraud. 3. The Court below erred in both law and fact by failing to appreciate that the burden of proof In a forgery case is higher that proof on a preponderance of probabilities. J8 4. Alternatively, even if the Court was correct In its finding that the two cheques were forged, the Court fell in error in both law and fact as that finding in itself was not enough to hold the appellant liable in the absence of a specific finding as to whether or not the appellant was directly or indirectly involved in the forgery/fraud and or whether or not that the two cheques were paid outside the ordinary course of business 5. The Court erred In law and fact as the finding by the Court that the respondent was not negligent in handling its cheque book was against the weight of evidence. 6.0 The Arguments 6.1 Both parties filed heads of argument, for and against the grounds of appeal respectively. 6.2 In the appellant's heads of argument filed into Court, counsel argued grounds one, two and three together. It is Counsel's submission that the respondent's claim in the Court below was founded by forgery. It is the law that forgery and or fraud should be distinctly proved by the party alleging it on a degree higher than that of balance of probabilities because the proceedings are criminal in nature. Counsel placed reliance on the cases of Sithole v State Lotteries Board' and Sablehand Zambia Limited v Zambia Revenue Authority'. In the latter case the Supreme Court held that: ig 1. Where fraud is an issue in the proceedings, then a party wishing to rely on it must ensure that it is clearly and distinctly alleged. Further, at the trial of the cause, the party alleging fraud must equally lead evidence, so that the allegation is clearly and distinctly proved. 2. Allegations of fraud must, once pleaded, be proved on a higher standard of proof, than on a mere balance of probabilities, because they are criminal in nature. 6.3 Whilst acknowledging that expert evidence is an opinion of an expert and that it is the duty of the Court to come to its own conclusion based on the evidence, counsel opined that, that conclusion is to be based on the findings of the expert. It was argued that such evidence, provides a strong guide to the Court in arriving at its own conclusion. Counsel drew our attention to the case of Shawaza Fawaz and another v The People3. 6.4 (cid:9) The case of Indo Zambia Bank Limited v Lusaka Chemist Limited 4, was relied upon as authority that evidence of a handwriting expert is inevitable. And, the fact that the respondent produced a letter from the Anti-Fraud Unit of the Zambia Police was testimony to this fact. Learned counsel amplified that this realization is essential and crucial because in such cases, the Court has a duty to ensure that the higher burden of proof is successfully discharged by the asserting litigant. To emphasise J10 this point counsel referred us to the case of Base Chemicals Zambia Limited and another v Zambia Air Force and another5. 6.5 (cid:9) Realizing that ground one attacks a finding of fact by the Court below, Counsel acknowledged that this Court will rarely overturn findings of fact by a trial court unless the conditions set out in Nkhata and Four others v The Attorney Genera16 are met. The conditions being (1) the Judge erred in accepting evidence, or (2) the Judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (3) the Judge did not take proper advantage having seen and heard the witnesses, or (4) external evidence demonstrates that the Judge erred in assessing the manner and demeanor of witnesses. 6.6 It is the submission of counsel that in casu, the Judge erred in accepting the respondent's less cogent and inconclusive evidence that the signature on the two instruments had been forged in the absence of expert opinion; the Judge failed to take into account the fact that the burden of proof that rested on the respondent's shoulder was higher than a mere preponderance of probabilities. The fact that no employee of the appellant was ill arrested in line with the alleged forgery was evidence that the appellant had nothing to do with the forged cheques. 6.7 Furthermore, that the Judge erred in assessing the evidence of DWI, as he failed to consider that the witness maintained in cross examination that she thoroughly scrutinized the signatures on the mandate and those on the cheques and followed the rules diligently. She found that everything was in order before she made the payment. 6.8 It is also argued that the specific finding by the trial Judge that "the main dissimilarity is that whereas the "C" makes complete contact with the letter "M1' on the undisputed signatures on the mandate, it does not do so at the bottom on the disputed signatures on the cheques. DW1 's evidence on the aspect was therefore a drift from the truth. Had DW1 thoroughly scrutinized all images of the cheques, the dissimilarities would have been detected" was not supported by evidence adduced on record. The respondent's witness did not specifically state the dissimilarities of the signatures but the Court did so, which was wrong. Therefore, that without conclusive investigations from the Police and the identity of the person who forged the cheques, it is unsafe to conclude that there was forgery in this case. 6.9 Relying on the case of Khalid Mohamed v The Attorney-General7 it is the appellant's submission that the respondent failed to prove J12 forgery to the required standard of proof and such failure means that even if the defence failed, the respondent's case ought to have collapsed. 6.10 In relation to ground four, which was argued in the alternative, learned counsel contends that should this Court sustain the trial Judge's finding that the two cheques were forged, the forgery cannot be attributed directly or indirectly to the appellant. This is so, as the record showed clearly, that the payment of the cheques was done neither with negligence nor out of the appellant's ordinary course of business. According to counsel the trial Judge ought to have exonerated the appellant of any wrong doing in line with the reasoning in the case of Fluid Base Industries Limited v Barclays Bank Limited PLC8 that where a banker in good faith and in the ordinary course of business pays a cheque drawn on him which is not endorsed or is irregularly endorsed, he does not, in doing so, incur any liability by reason only of the absence of, or irregularity in endorsement and he is deemed to have paid it in due course. 6.11 Under ground five, it is Counsel's submission that the finding that the respondent was not negligent in handling its cheque books was against the weight of the evidence on record, Our J13 attention was drawn to PW1's testimony in cross examination that he recalled a time when he forgot it at the bank. The lower court did not properly assess and evaluate this piece of evidence as the conclusion that the respondent was negligent in handling the cheque book was inevitable. We were urged to reverse this finding of fact in line with the Nkhata and Four others v The Attorney Genera16 case. 6.12 In response to grounds one, two and three, it is the respondent's counsel's submission that the trial Judge was on firm ground when he found that the two cheques were forged. It is contended that the respondent's witness testified to the effect that there were dissimilarities between the purported signatures and his actual signature as contained on the mandate. He testified that the signature on the purported cheques was not his. These differences were further highlighted during cross examination of DWI when questioned on the letters C and 'M' on the signature. This testimony amounts to direct evidence as the learned authors of Cross on Evidence opined at pages 145-146 that handwriting may be proved by the testimony of the writer or someone who saw him write, as this is direct evidence. J14 Thus, the appellant's contention that the evidence of a handwriting expert was inevitable is not supported by law. 6.13 Furthermore, that there is no law that precluded the learned trial Judge from examining the already highlighted differences in the signatures on the disputed cheques and the specimen sample. Our attention was drawn to the case of Girrafe Bus Services Limited v Abel Lwitikiko Mwandemwa9 . 6.14 Counsel distinguished this case from that of Indo-Zambia Bank Limited v Lusaka Chemist4 cited by the appellant, to the extent that the forgeries in this case could be detected with the bare eye unlike the perfect forgeries that the Court was dealing with in that case. It is counsel's submission that the Judge was on firm ground when he drew the inference which he did, based on the dissimilarities already highlighted in evidence by the witnesses. The contention by the appellant that the respondent needed to lead evidence to the standard of fraud is misconceived as there were no allegations of fraud on the appellant's part. The unchallenged evidence that the signatures were not PW1's authorized signatures meant that the cheques were unauthorized. J15 6.15 In response to ground four, it is argued that the appellant does not appreciate the law contained in the Bill of Exchange Act of 1882 as well as the cases of Bank of Zambia v The Attorney General'° and Barclays Bank of Zambia v Sky FM Limited and another". Section 24 of the Bill of Exchange Act provides: "Subject to the provisions of this Act, where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be, the forged or unauthorized signature is wholly inoperative, and no right to retain the bill or to give a discharge therefore or to enforce payment thereof against any party thereto can be acquired through or under that signature, unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up forgery or want of authority provided that nothing in this section shall affect the ratification of an authorized signature not amounting to forgery." 6.16 Learned counsel concluded that based on the above reasoning and having demonstrated that the signatures were forgeries, the Judge was on firm ground when he held as he did whether or not the appellant was directly involved in the forgery, because it had no authority to debit the respondent's account. The basis of a bank's liability where it has paid on a forged instrument is not negligence but because money has been paid away without J16 the authority of the customer, as elucidated in the cases of Bank of Zambia v The Attorney General'° and Barclays Bank of Zambia v Sky FM Limited and another". 6.17 As regards ground five, it is argued in response, that the appellant did not lead evidence to prove that the respondent was negligent. The respondent did not breach any duty it owed to the appellant, like failure to report the debits upon discovering them or that they acted in concert with the persons that perpetrated the forgery. Thus the appellant is precluded from setting up the defence of negligence on the part of the respondent on the basis that PW1 once forgot the cheque book at the bank. Bank of Zambia v The Attorney General'° case has been cited in support of this argument. That the Supreme Court stated in that case that even gross carelessness by the customer in the care of its cheque form and stamps is too remote to found a defence of estoppels on the basis of inducing the appellant to pay. 6.18 The respondent also drew further guidance from the case of Canora Bank v Canora Bank Corporation and others'2 where the Court stated that there is duty on the part of the customer to inform the appellant of the irregularities when it comes to know J17 of it. But, by mere negligence, one cannot presume that there has been a breach of duty by the customer to the appellant. The Court further stated that whenever a cheque purporting to be by a customer is presented before a bank, it carries a mandate to the appellant to pay. If a cheque is forged there is no such mandate. The appellant can escape liability only if it can establish knowledge to the customer of the forgery in the cheques. 6.19 Citing the cases of Attorney General v Achiume'3, Nkhata and others v The Attorney General6 and Nkongolo Farms Limited v. Zambia National Commercial Bank and others '4, Counsel for the respondent has argued in conclusion that the trial Judge cannot be faulted in his findings of fact. We have been urged not to reverse the findings of fact by the court below. 6.20 At the hearing of the appeal, Mr. Nkole, who appeared for the appellant placed reliance on the appellants heads of argument. Mr. Siyumbano, who appeared for the respondent augmented the respondent's heads of argument with brief oral submissions. 6.21 He submitted that there are several ways in which a handwriting can be proved. He cited the learned authors of J18 Haisburys 5th edition, volume 12 paragraph 922 at page 418 that proof can be by calling the writer, witness who saw the document written or signed, witness with general knowledge of writing, comparison of disputed signature with other documents proved to satisfaction of the Judge, etc. It was argued that by calling the person (PW1) whose signature was forged, the respondent proved that the signature was forged. Additionally, that at pages 416-417 of the record of appeal, the Judge was referred to the signatures. Thus, we are in as good a position as the court below in drawing inferences regarding the handwriting. 7.0 Issues on Appeal 7.1 We have considered the arguments and submissions by counsel including the Judgment of the High Court. The cardinal issue in this appeal, is, whether it is a must that a handwriting expert should testify in cases of forged signatures. Secondly, whether where a bank honours a cheque and it is later discovered that the signatures on the instrument are a forgery it can escape liability simply because its employees were not involved. We also have to consider the issues in the court below stated at page Jig S J27 (page 38 of the record of appeal) on the respondents negligence in keeping his cheque book. 8.0 Consideration of Issues and Decision on Appeal 8.1 In the Sithole v The State Lotteries Board' case cited, the Court stated clearly the position of a handwriting expert in assisting the trial court. It stated thus: "The court is not required to blindly follow what the handwriting expert said. The function of a handwriting expert is to point out similarities or differences in two or more specimens of handwriting and the court is not entitled to accept his opinion that these similarities or differences exist but once it has seen for itself the factors to which the expert draws attention, it may accept his opinion in regard to the significance of these factors." 8.2 This was followed in Girrafe Bus Services Limited v Abel Lwitikiko Mwandemwa9 where the Supreme Court further stated that: "even our own looking for ourselves and making up our own mind, is a proper course to adopt. This is precisely what we did in the case of Nwume v The People." In the Nwume v The People15 case, the Supreme Court drew its own inferences from the facts and substituted its views for that of the trial court. The Court examined two specimens of handwriting and was of the view that it was impossible to say J20 beyond reasonable doubt that both specimens were written by the same hand. 8.3 Guided by these decisions, we are of the considered view that the trial court did not err when it observed the dissimilarities on the disputed cheques and the specimen provided and rightly concluded that the cheques were forged. Even though it is important to call a handwriting expert, his/her opinion is not binding on the Court. The Court must assess the evidence before it and be satisfied that the expert's opinion is in line with the evidence before it. As aforestated the handwriting expert was not called but the forged cheques and PW1's specimen signature kept at the bank were adduced before the Court. 8.4 The Court was therefore, on firm ground to find that the signature on the cheques was forged, by its ocular observation and also the oral testimony of PW1 and DWI as argued by Mr. Siyumbano. DWI admitted in cross examination that the signatures were different when asked about the letter 'C' and 'M'. So this is one of the cases of a forged signature, which could easily be seen. Thus, even though we have upheld the trial Judge's findings and observations in the absence of a handwriting expert, we are in no way saying that in all cases of J21 forgery the evidence of a handwriting expert is not necessary. Each case must be determined on its own merit. 8.5 Obviously, there are cases of near perfect forgery and complex ones where the expert evidence is required. Based on the evidence both oral and documentary, in this particular case, the trial court was on firm ground when it held that the respondent had proved its case to the required standard of forgery cases. DW1 admitted that the signatures on the mandate and the cheques were different. 8.6 Thus the respondent's allegations that PW1's signature was forged was proved to the required standard in civil matters that is slightly higher than a balance of probability as DW 1, PW 1 and the trial court observed the dissimilarities. Fraud or forgery is not required to be proved beyond reasonable doubt. In criminal matters where proof is beyond reasonable doubt, perhaps, the expert's testimony would have been crucial as observed in the Nwume v The People'5 case. Accordingly, we find no merit in grounds one, two and three and dismiss them. 8.7 We now turn to grounds four and five which we shall consider simultaneously as they are interlinked. The Supreme Court has J22 held in a plethora of cases such as Bank of Zambia v The Attorney General" cited by the respondent's counsel that: "at one time it was said that a banker was bound to know his customer's signature and it was negligence to pay on a forged instrument but this basis of a bank's liability has long since been shown to be false; that it is now established that the real basis of the bank's liability is that money has been paid away without the authority of the customer". And also in the cited case of Barclays Bank of Zambia v Sky FM Limited and another" that: "what this means is that a Bank pays a forged cheque at its peril, and in such event, payment will be considered to have been made from the bank's own funds so that it has no right to charge the customer's account with the amount paid contrary to his legitimate order." We, would therefore, not hesitate to find as meritless the appellant's argument that because none of its employees were involved in the forgery, it cannot be found wanting. 8.8 We note also the other aspect of the appellant's argument that the cheques were paid in the ordinary course of business and thus it cannot be held liable. In Shreeji Investments Limited v Zambia National Commercial Bank PLC16, the Supreme Court considered the provisions of section 19 of the Stamp Act 1853, J23 section 60 of the Bills Exchange Act 1882 and section 2(1) of the Cheques Act which provide protection to the banker where a forged cheque is paid in good faith and in the ordinary course of business. 8.9 The Supreme Court further observed that: "there is no doubt that a bank is under a duty to its customer to use care in examining cheques presented in order to detect forgeries and to render its accounts to prevent the commission of frauds on its customer. So, if a bank, in the exercise of proper care could have discovered the forgery of a customer's cheque it cannot throw the loss caused by paying them upon the customer merely because the latter was negligent in failing to examine his statement of account, or returned cheques. The bank does not pay because previous forgeries were not reported to it, but it pays because on its own negligent inspection it supposed the cheques were genuine." 8.10 In casu, DWI admitted that she inspected the cheques before payment and when shown the cheques in Court and PW1's specimen signature, she agreed that there were dissimilarities. The trial court by ocular observation also saw the glaring dissimilarities. Clearly, the appellant was negligent in its inspection and should suffer the consequence by paying back the respondent as ordered by the trial court. J24 q (cid:9) -i 8.11 This finding of fact was made by the trial Judge who had the advantage of seeing the witnesses and observing their demeanor, which we do not. Additionally, the finding was supported by the evidence. We cannot therefore, overturn his findings. We are guided by the Supreme Court decision in Nkhata and Four others v The Attorney General6 . 8.12 We opine that this particular case is, ultimately, distinguishable from the Shreeji Investments Limited v Zambia National Commercial Bank PLC16 where the customer (Shreeji) was subsequently found wanting. In casu, the appellant was negligent in its inspection as determined in paragraph 8.10. 8.13 The evidence on record shows that there was one incident when PW1 forgot his cheque book at the bank which he later collected. Negligence in handling the cheque book by the respondent does not relieve the bank from liability, we are fortified by the cases of Bank of Zambia v The Attorney General'° and Bank of Ireland v Evans' Trustees'7 that: "If a man should lose his cheque book, or neglect to lock the desk in which it is kept, and a servant or stranger should take it up, it is impossible in our opinion to contend that a banker paying his forged cheque would be entitled to charge his customer with that payment." J25 8.14 In light of what we have said in paragraphs 8.7 to 8.13, grounds four and five are equally bereft of merit and are dismissed. 8.15 In the net result, the appeal lacks merit and is dismissed with costs in this Court and below to th - res . ondent, to be taxed in default of agreement. J. HASH! .1 Co RT OF APPEAL JUDGE J. Z. MULON I I COURT OF APPEAL JUDGE FM. LENGALENGA COURT OF APPEAL JUDGE J26