Prudence Bank Ltd (in Liquidation) v Devalia Emporium Ltd (Appeal 38 of 2000) [2002] ZMSC 109 (29 April 2002)

I IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 38 OF 2000 HOLDEN AT LUSAKA BETWEEN: PRUDENCE BANK LIMITED APPELLANT (In Liquidation) and DEVALIA EMPORIUM LIMITED RESPONDENT CORAM: Chaila, Chirwa and Lewanika, JJS on 20th March 2001 and 29th April 2002 For the Appellant: Mr. A. M. Wood, of AM Wood & Co. For the Respondent: Mr. J. A. Wright of Malambo Silwamba & Co. JUDG MENT Chirwa, J. S. delivered judgment of the court: - Case referred to: (1) Zulu V Avondale Housing Project Limited (1982] Z. R. 171 at 175 This appeal was heard before the demise of our brother Mr. Justice Chaila and this judgment should therefore be taken as judgment by the majority. The appellant, who were plaintiffs in the Court below and will continue to be referred to as plaintiffs were, registered Commercial Bank until they were put under liquidation. The respondents, who were defendants in the Court below and will continue to be referred to as defendants were a registered company under the company’s Act. The relationship between the parties was that a bank/client. The defendant had a current account with the plaintiff and were offered overdraft facilities and before the plaintiff was placed under liquidation the : J2 : overdraft facility accumulated to K91,039,985.53 plus interest of K66,492,283.21 bring the total to K157,532,268.74. This is the amount that the plaintiff claimed. The defendants' defence is a total denial of having obtained any overdraft facilities from the plaintiff and therefore denied owing the plaintiff. At the trial, there was no attendance by the defendant or Counsel and the Court proceeded to hear the evidence of the plaintiff after being satisfied that the defendant was aware of the hearing date. After hearing the plaintiff and after perusal of the statements supplied, held that there was no money outstanding due to the plaintiff. The appeal was argued on four grounds of appeal and these were amplified by detailed heads of arguments. The defendant also filed detailed response to the grounds of appeal and both counsel relied on these detailed heads of arguments at the hearing of the appeal. We will not go into full details of the arguments but it is worthwhile to list the grounds of appeal. The four grounds of appeal are: - 1. The Court below erred in fact and in law in not taking into account the plaintiffs’ whole record before it and in finding that the plaintiff had failed on the balance of probability to prove that the defendant owes it the sum claimed. 2. The Court below misdirected itself in fact in finding that the defendant’s account stood at zero. 3. The Court below erred in law in not finding that the defendants defence was a mere denial devoid of proof. : J3 : 4. The Court below erred in law in not taking into account the significance of Sections 4 and 5 of the Bankers Evidence Act, Cap. 44 of the laws of Zambia. We wish to reiterate, in considering this appeal, what we stated in the case of ZULU V AVONDALE HOUSING PROJECT LIMITED [19821 Z. R. 172 at 175 where is stated that: - “I think it is accepted that where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed in any other case. Where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent’s case.” It is necessary for us to refer to this law having regard to the defence pleaded by the defendant, which is a denial of having obtained any overdraft facilities from the plaintiffs. This denial cannot stand in view of the letters dated 7th June 1995 and 14th June 1995 at pages 32 and 33 of the record respectively. There was therefore no valid defence. The plaintiffs led evidence through the liquidation manager who testified from the records he found at the plaintiffs premises on being appointed as Liquidation Manager and the evidence is supported by documents produced. We note that the learned trial did refer to the accounts between the plaintiffs and the defendants on the overdraft facilities. It is true that the balances as shown in the court on 20th June 1986 showed a “0.00" balance but a look at page 109 of the record show that having transactions of inter transfer of this account to loan account in sum of K157,532,268.74. The way the overdraft account came to be “0.00” is not stated in these statements and can only by way of transferring the outstanding sum in this account to loan account. We bear in mind that this was a family bank and the Bank of Zambia investigations showed that there was a lot of insider borrowing by the Chairman and Directors of the bank who are also members of the Devalia Emporium. The loan account has not been cleared and : J4 : the plaintiffs’ beneficiaries especially the depositors are entitled to their money. The money must be followed I from the overdraft account to the loan account. We therefore set aside the learned judge’s finding that the plaintiff failed to prove its case on the balance of probability. The credit balance on overdraft account for the defendant was smartly removed and put into a loan account yet this H0.00" account continued being charged interest and there is no proof that this account has been cleared; and this amount of K157,532,268.74 was on transfer to loan account with the interest it has accumulated. We therefore, allow this appeal and enter judgment in favour of the plaintiff and we refer to the Deputy Registrar to find out the amount due starting with K157,532,268.74 that was transferred into the loan account. Costs in the court below and in this court shall be for the plaintiffs to be agreed, in default to be taxed. D. K. CHIRWA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE