Mansfield Scott Investments Limited v Barclays Banks Zambia Plc (Application No. SP 45/2024) [2025] ZMCA 16 (25 February 2025)

(Civil Jurisdict io n) BETWEEN: 2 4 FEB 2U25 REGISTR'r' 2 067, -- MANSFIELD SCOTT INVESTMENTS LIMITED APPLICANT AND BARCLAYS BANK ZAMBIA PLC RESPONDENT Coram: Siavwapa JP, Chishimba and Patel, JJA On 1gth & 24th February 2025 Fo r the Ap plicant: Mr. L. M wam ba & M r. M. Chu ngu Messrs. M wamba & M ilan Advocates For the Respo nde nt: Mr. R. Mwa nza Messrs. Ro bert & Partners RULING Patel, JA, delivered the Ruling of the Court Rl I Page Cases Referred to: 1. KV Wheels and Construction Limited and Others v Development Bank of Zambia- SCZ Appeal No. 123 of 2016 2. Bidvest Food Zambia Limited, Chipkins Bakery Suppl ies (Pty) Limited , Crown National (Pty) Limited, Bidfood Ingredients (Pty) Limited, Bidvest Group Limited v. CAA Import and Export Limited- SCZ Appeal No. 56 of 2017. 3. Hermanus Philipus Steyn v Giovanni Ruscone Sup Ct Appl No. 4 of 2012 4. KV Wheels Constructio n Lim ited v Invest Trust Bank Pie - SCZ/8/29/2021 5. Kekelwa Samuel Kongwa vs Meamui Georgina Kongwa - SCZ/8/05/ 2019 . 6. Zlatan Zlatakkoauronotivic v Stanbic Bank Limited - SCZ/08/14/ 2020 7. John Kawadilu Kalenga v Mususu Mambo Kalenga -Caz Application No.35 of 8. Philip v Barclays Bank Pie (2022) Q. B. 578 9. Barclays Bank Pie v Quincecare Limited & Another (1992) ALL ER 363 10 . Shreeji Investments Limited v ZANACO Pie -SCZ Appeal No. 143/20009 11. First National Bank v Libyan Investments Limited - CAZ Appeal No. 64 of 12. Barclays Bank Pie vs Jeremiah Njovu & Others- SCZ/8/21, SCZ [2019] Rules and Legislation Referred to: 1. The Court of Appeal Act No.7 of 2016 R2 I Page 1.0 INTRODUCTION 1.1 This is the Ruling in respect of a Notice of Motion for leave to appeal the Judgment of this Court dated 13th June 2024 to the Supreme Court of Zambia pursuant to Section 13 (3) (a) and (c) of the Court of Appeal Act • 1.2 The Applicant commenced this matter in the High Court against the Respondent by Writ of Summons and statement of claim seeking th e following reliefs: 1) Special damages for economic loss due to the Respondent's negligent misrepresentation and its failure to carry out its fiduciary duties owed to the Appellant in its capacity as the Appellant's banker; 2} In the alternative, a declaration that the Respondent assumed the role of an escrow agent to the Appellant and proceeded to act outside its escrow mandate and in breach of its fiduciary duties as an escrow agent, causing the Appellant financial loss, thereby making it liable for special damages for economic loss; General and exemplary damages for negligence; And interest and costs. 3} 4) R3 I Page 1.3 The lower Court considered the evidence on record and found that the new signatories to its bank account, were nominated by th e Applicant itself. The lower Court further concluded that the Applicant had not establish ed its case on a balance of probabilities and dismissed all its cla ims with costs. 1.4 Dissatisfied, the Applicant subseque ntly appealed to this Court, and we rendered our Judgment on 13th June 2024, (now the subject of leave to appeal) by which we dismissed the appeal with costs to the Respondent. 1.5 The Applicant has moved this Court seeking leave to appeal to the Supreme Court of Zambia on four (4) grounds as stated in the intended Memorandum of Appeal. 2.0 NOTICE OF MOTION 2.1 The Motion was filed on 26th June 2024 with an affidavit in support sworn by one Titus Nyirongo, in his capacity as Accountant in the Applicant company. 2.2 The deponent has averred that following the Judgment of this Court, a copy of which w as exhibited and marked 'TNl', the Applicant is desirous of appealing to the Supreme Court and exhibited and marked 'TN2' and 'TN3' are cop ies of the proposed Notice of Appeal and Memorandum of Appeal respectively. R4 I Page 2.3 The intended grounds of appea l are as follows : Ground 1 The lower Court erred in law and fact by holding that the Respondent was not negligent when it honoured the instructions issued by the authorized signatories to the account to pay the various payees until it was put on notice. Ground 2 The lower Court erred in law and in fact when it held that where a Bank receives instructions in accordance with the mandate, the duty of the bank is to simply carry out, the instructions promptly and that the bank is not concerned with the risks of the paying instructions. Ground 3 The Court of Appeal erred in law and in fact by holding in paragraph 8.31 of the Judgment that the Respondent had no reasonable grounds of believing that the payments were being fraudulently made by the authorized signatories. Ground 4 The lower Court erred in law and in fact by holding that the Bank was on firm ground when it declined to give viewing rights to the appellant or bank statements which are only availed to authorized signatories. RS I Page 2. 4 The depon ent avers, that on the advice of Coun se l, the intended appeal raises points of la w of public importance that transcen d the parties to t his action. 2.5 It is further deposed that the ext en t of a Bank's duty in cases such as t he o ne in casu, w here there is misappropriation of funds by an authorized signatory of a customer, is o ne w hose determination wi ll inte rest every Bank and all its cu stomers, particu larly those that appoint signatories to oversee t heir accounts. 2.6 The deponent has furth er averred th at th e issue as to whether a customer ca n have access to its bank statements and internet banking, even where it has appointed signatories, also has a public signif ica nce as Banks and Customers alike will benefit from the gu ida nce of the Supreme Court. 2.7 The Applicant also placed reliance on its ske leton arguments filed in suppo rt of the Notice of Motion. We have fully interrogated these and wi ll reference them where appropriate in th e analysis section of our Ruling. 2.8 The App licant also fil ed its skeleton argu ments in reply dated 11th Feb ru ary 2025 whic h we have fully considered and w hich in fact reiterate or lend force to its argu ments in support of t he Motion. R6 I Page 3.0 THE RESPONDENT'S OPPOSITION 3.1 The Respondent opposed the Motion and pla ced reliance on its affidavit and skeleton arguments filed on 2nd December 2025. In similar manner, w e have interrogated these and will reference them where appropriate in t he analysis section of our Ruling. 3.2 The main issues raised by the Respondent in opposing the Motion for leave to appeal to the Supreme Court are that the proposed appeal does not raise a point of la w of public importance, nor does it have prosp ects of success. 4.0 THE HEARING OF THE NOTICE OF MOTION 4.1 At the hearing of the Motion, Counsel for th e Applicant placed reliance on its heads of argument in support and those filed in reply. It was argued that there had been negligence on th e part of the Respondent, more so that it had been made aware of the business transaction entered into by the Appellant. It was the combined submissio n that the proposed appeal had raised important points of law of public importance which deserve to be pronounced upon by the Supreme Court. 4.2 Counsel Mwanza placed entire reliance on its opposing process and submitted that the applicant had not met the threshold as prescrib ed and was not deserving of the grant of leave to appeal. R7 I Page 5.0 CONSIDERATION OF THE NOTICE OF MOTION 5.1 We have careful ly considered the application together wit h the entire record of motion and the intended grounds of appeal. We have also considered the affidavits and skeleton arguments which have been referred to in paragraphs 2 and 3 above . 5.2 The ma in issue for determ ination is, as we see it, straight forward. Has th e Applicant demonstrated that leave to appeal to the Supreme Court ought t o be gran t ed based on th e proposed grounds of appeal set o ut in paragraph 2 above as read with section 13 {3) (a) (c) and (d) of th e Cou rt of Appeal Act1 . The Applicant contends t hat the int ended appea l has ra ised points of law of public importance which transcend the interest of the Parties to the actio n, that there are reasonable prospects of success and that it is in the interest of justice, that th e leave sought is granted. 5.3 It is trite that leave to appeal to th e Supreme Cou rt may only be granted if this Court is satisfied that at least one of the cond it ions in Section 13 of the Act is satisfied . Section 13 (3) of the Court of Appea l Act No. 7 of 2016 1 provides as follows: - "{3} The Court may grant leave to appeal where it considers that (a) the appeal raises a point of law of public importance; (b) it is desirable and in the public interest that an appeal by th e person convicted should be determined by the Supreme Court; R8 I Page (c) the appeal would have a reasonable prospect of success; or (d} there is some other compelling reason fo r the appeal to be heard." 5.4 The cru cial question before us is w heth er th e Applicant s have met the threshold in Section 13 (3) of the Court of Appeal Act 1 . We will now exa min e t his M oti on to determ ine w hether it has met th e est ab lished bench m ar ks. Issue of Public Importance 5.5 We are alive to the threshold required to d ischarge th e argument that the appeal has raise d an issue of pu bli c impo rtance. We place prem ium on the decision of t he Supreme Cou rt in t he case of KV Wheels and Construction Limited and Others v Development Bank of Zambia 1 in which the Apex Court, cited w ith app roval, t he ca se of Bidvest and Four Others v CAA Import and Export Limited 2 • Thi s decis ion has est abli shed th e m ini mum t hreshold t o be met by a litiga nt, inte nding to seek leave t o appea l t o t he Supreme Court of Zam bia, comm only referred to as t he Bidvest case. 5.6 In t he KV Wheels 1 case, th e Supre me Co urt stated as fo llows: "In the Bidvest case, we explained quite clearly that for a point of public im portance to provide a basis for granting leave to appeal, it ought to be a point of law- an arguable point of law. We stated as fo llows: Two fin al points on section 13 (3) (a). First, it is always critical to bear in mind that under section 13 (3) (1), the three different facets R9 I Page of the qualifying criteria for leave to be granted must be satisfied. These are: (i) a point of law; (ii) of public importance; and (iii) raised in the appeal. We went further to explain in that case that an appeal anchored on findings of fact alone, even if it is demonstrated that those findings were perverse or not borne out of evidence, does not qualify as raising a 'point of law' in the first instance. An ordinary finding of fact ipso facto fails the test on that account alone. " 5.7 In our Judgment, we addressed the same cardinal issues, which the Appellant wants the Supreme Court to pronounce itself on. It is clear from the perusal of the intended Memorandum of Appea l, that the intended appeal is grounded on findings of fact which in terms of the KV Wheels 1 case does not qualify as raising a 'poin t of law.' 5.8 It is notoriously obvious th at to cast the net on an issue of public importance, it must affect a wider audience and not just the litigants. The Sup reme Court of Kenya, in the case of Hermanus Philipus Steyn v Giovanni Ruscone3, gave guidance on the meaning of a matter of general public importance. It is noteworthy that the Kenyan Supreme Court clarified that for a matter to be one of general public importance, the matter must be of wider public significance, it should be based on uncertain points of law which must transcend beyond the rights or interests of the parties to the dispute. (emphasis ours.) RlO I Page 5 .9 In our jurisdiction, the Apex Court has clarified the meaning of the phrase "a matter of general public importance' in t he case of KV Wheels Construction Limited v Invest Trust Bank Plc4 in the following terms : "{1} The importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance. {2} Where the matter involves a point of law and that it is for the common good that such law should be clarified so as to enable courts to administer the law, not only the case at hand, but other cases in future." 5.10 Similar sentiments we re expressed by a single Judge of the Supreme Court in the case of Kekelwa Samuel Kongwa v Meamui Georgina Kangwa 5 when the Judge stated : .. .for a legal question to be treated as a point of law of public importance, it must have a public or general character rather than one that merely affects the private rights or interests of the parties to a particular dispute. The legal point in issue should relate to a widespread concern in the body politic the determination of which should naturally have effect beyond the private interests of the parties to the appeal. " 5.11 In a recent decision, in the case of Zlatan Zlatakkoauronotivic v Stanbic Bank Limited 6 the Supreme Court st ated: Rll I Page "Therefore, for a legal question to be treated as a point of law of public importance it must have a public or general character rather than one that merely affects the private rights or interest of the parties to a particular dispute; and it must be raised in the appeal." 5.12 In our decision rendered in the case of John Kawabilu Kalenga v Mususu Mambo Kalenga 7 , we rejected the argument that the issue raised grounds of points of law of public importance. We stated in that case that the argument did not meet the threshold stipulated in section 13 (3) (a), (c) or (d}1. 5.13 In casu, we direct our mind to the intended grounds of appeal (cited at paragraph 2 above). Firstly, it is common cause that reference should not be made to 'the lower court" as it is the Judgment of this Court, that is under reference in the Motion. The Applicant refers to the lower Court in grounds 1, 2 and 4. It would therefore be correct for us to take the intended grounds of appeal as only being ground 3 which is directed at our finding in paragraph 8.31 of the Judgment of the Court. 5.14 We must stress and reiterate that mistakes of such a fundamental nature must lie against the Party who makes them. It is not the place of the Court, let alone at appellate level, to correct blatant errors. 5.15 Even overlooking the error noted above, the Applicant canvasses the argument that leave to appeal, is critical so that the Apex Court may R1 2 I P a g e pronounce itself on novel areas of the Banker/Customer relationship and the duty owed by a Bank to its customers, more so, on an account which is opened for a specific purpose only. To th is extent, it has argued that the Bank ought to make reasonable inquiries and as such, t he matter of a bank mandate, is of public importance and transcends the interest of the Parties to the action. 5.16 While the argument may, on the face of it, have an ingenuous ap peal and public importance feature, we are of the considered opinion that there is no point of law that has been raised which warrants the Supreme Court to pronounce itself on. At best, the Applicant is attempting to challenge findings of fact which were arrived at by the lower Court and upheld in our Judgment. It is critical to note that the Bank was not found to have abrogated or violated any normal banking duty that it was mandated to perform . The Bank wa s also not found to be negl ige nt, an issue strongly canvassed by the Applicant. 5.17 In th e cited Bidvest case, the Apex Court also revea led its mind on issues wh ich could be viewed as raising a point of law of public importance. Th e Supreme Court stated as follows: "Second as regards the issue of whether every novel point should be viewed as raising a point of law of public importance and thus satisfying the threshold for the grant of leave to appeal, we must state that novelty of a matter does not in itself and of itself turn a R13 I Page matter into one that raises a point of public importance within the intendment of section 13 {3} (a) of the Act. " (emphasis added). 5.18 It is fundamental in banking pract ice t hat before a customer alleges breach of duty or obligation on the part of the Bank, it must prove that th e Bank owed it that duty in the first place. The Applicant has argued that on the facts at hand, the Bank ought to have made reasonable inquiries, as it had been put on notice as to the specific purpose of the money. In casu, it was established by both the documentary evidence and of th e witnesses, that the Appl icant by its letter of 8th February 2016, changed signatories to operate its USD Account. The Bank, in compliance with the resolution allowed the newly appointed signatories to transact the said account, until the Applicant, by its lett er issued someti me in June 2016, instructed the Bank to revert to the original signatories. We are at a loss now, as we were when we delivered our Judgment, as to wh ich duty the Bank is supposed to have breached . This is a finding of fact. It is not a point of law, novel or otherwise that needs det erm in at ion by the Supreme Court. 5.19 We have also in our said Judgment ful ly considered the authorities referred to by the App licant, and wh ich it has de ployed to fu rt her canvass the argument that the Apex Court must pronounce it self on th e aspect of duty of care owed by a Bank to its customer. We have considered the cases of Philips v Barclays Bank8 and Barclays Bank v Quincecare Limited 9 and in our considered opin ion, we were able to dist inguish the facts in casu to the R14 I Page facts of the cases cited. On this point, we refer to paragraphs 8.18 to 8.22 of our Judgment. 5.20 We did equally pronounce on the duty of care, owed by a Bank t o its Customer. We also referenced a decision of the Supreme Court rendered in the case of Shreeji Investments Limited v Zambia National Commercial Bank Plc10 , whic h confirmed banking practice which allows a duly authorized signatory to operate th e account in question. Again, this evidence was not challenged. The deponent at page 7, pa ragraph 6 of the Affidavit in support has averred as follows: " That the extent of a Bank's duty ;n cases such as this one where there is misappropriation of funds by the authorized signatory of a customer is one whose resoluUon will interest every Bank and in fact every customer particularly companies/corporates that appoint signatories to oversee their accounts." 5.21 We are of the cons id ered view th at this is a completely flawed argument. A prudent customer does not appoint signatories to oversee their account, signatories are mandated to manage and operate the account. Th is onus cannot be placed on th e Bank in the face of no evidence to support it. 5.22 We also referred to our decision in th e case of First National Bank v Libyan African Investments Company Limited 11, in wh ich the Bank was found liable as it had been given actual notice, in writing of two fraudsters, RlS I Page presenting themselves as officia ls of the Respondent. In casu, the Appl icant itself authored a change of banking mandate and appointed new signatories to the Account. 5.23 The factual argument that the Bank, having been put on notice as to the purpose of the account and the maize contract between the App licant and its business associates, and that it ought to have managed the account as per the business, is an argument that has already been dismissed and is not a point of law. Paragraph 8.37 of our Judgment refers. 5.24 With regard to ground four of the intended grounds of appeal, that the Court erred in law and in fact by holding that the Bank was on firm ground when it declined to give viewing rights to the Applicant, the evidence before the Court was clear. There was no request in writing by the Applicant that it had asked for such viewing rights or access to the internet banking platform. There being no evidence that it made the request, there is no issue of the same having been denied by the Bank. We refer to paragraph 8.40 of our Judgment. Again, th is is a classic attempt to create a hypothetical issue to warrant a pronouncement by the Supreme Court under the gu ise of public importance and prospect of success. 5.25 Th e Applicant has continued to assert that all the grounds of appea l are points of law, without actually supporting that statement. As we have noted, the findings challenged are findings of fact and grounded in the R16 I Page evidence placed before the trial court and which we saw no reason to disturb. Prospect of success 5.26 We must emphasize that all the intended grounds of appeal are findings of fact, grounded on evidence before the court. There are no prospects of success. We are also alive to the guidance of the Apex Court, in the case of Barclays Bank Pie vs Jeremiah Njovu & Others12 , when dealing with the principles of 'reasonable prospect of success1 on an application for leave to appea l, and in rende rin g judgment Judge Mutuna emphasized as fol lows: "Although section 13(3} (c) of the Court of Appeal, when dealing with prospects of success, provides a stand-alone basis for granting leave to appeal. It should, however, be resorted to very sparingly. It is not every appeal that stands a nominal or notional chance of success that qualifies to be heard by the Supreme Court. It must have real prospects of success. My view is that the proposed appeal does not present sufficient prospects of real, eventual success to justify the intervention of the Supreme Court". 5.27 We are therefore of the settled view that the intended grounds of appeal do not amount to a legal question or issue to be treated as points of law or public importance. It is also trite that facts are foundational, and if those facts have not been established before the lower Court, what magic wand did the App licants expect this Court to waive, or indeed does it expect the R17 1Page Supreme Court to use, in arriving at conclusions any different to the one s already established. 5.28 Having analyzed the motion, we are of the considered view that the issues only affect the private interests of the Applicant herein and this is its attempt at re-litigating the same issues. We find no merit in the application for leave to appeal to the Supreme Court. We dismiss it with costs to the Respondent to be taxed in default of agreement. JUDGE PRESIDENT F. M. CHISHIMBA COURT OF APPEAL JUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGE R18 I P a g e