Savenda Management Services Limited v Stanbic Bank Zambia Limited (Selected Judgment No. 10 of 2018) [2018] ZMSC 616 (13 March 2018)

Jl JI ED JUDGMENT NO. 10 OF 2018 LECTED JUDGMENT NO. 10 OF 2018 I ' I } I JUOlCl^y'^ P.281 AL NO. 37 /2017 AL NO. 37/2017 IN THE SUPREME COURT OF iA IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA HOLDEN AT NDOLA (Civil Jurisdiction) (Civil Jurisdiction) '""' , . BETWEEN: BETWEEN: . i ·;;:._,,_ P.o_ so s^'STKy l.us:ioo6 7 SAVENDA MANAGEMENT SERVICES SAVENDA MANAGEMENT SERVICES PPELLANT AND AND STANBIC BANK ZAMBIA LIMITED STANBIC BANK ZAMBIA LIMITED RESPONDENT RESPONDENT Coram Coram Hamaundu, Musonda and Mutuna, JJS Hamaundu, Musonda and Mutuna, JJS On 6th March 2018 and 13th March 2018 On 6 th March 2018 and 13th March 2018 For the Appellant For the Appellant For the Respondent For the Respondent : Mr. M. Mutemwa SC of Messrs Mutemwa Mr. M. Mutemwa SC of Messrs Mutemwa Chambers; Mr. A. Musukwa of Messrs Andrew Chambers; Mr. A. Musukwa of Messrs Andrew Musukwa and Co.; Mr. K. Nchito of Messrs Musukwa and Co.; Mr. K. Nchito of Messrs Kapungwe Nchito Legal Practitioners; and, Kapungwe Nchito Legal Practitioners; and, Mr. M. Sinyangwe of Messrs Wila Mutofwe Mr. M. Sinyangwe of Messrs Wila Mutofwe and Co. and Co. Mr. E. S. Silwamba SC of Messrs Eric Mr. E. S. Silwamba SC of Messrs Eric Silwamba Jalasi and Linyama; Ms A. D. Silwamba Jalasi and Linyama; Ms A. D. Theotis of Mesdame Theotis Mataka and Theotis of Mesdame Theotis Mataka and Sampa; and Mrs. D. Tembwe and Mr. W. Sampa; and Mrs. D. Tembwe and Mr. W. Luwabelwa - In house counsel Luwabelwa - In house counsel JUDGMENT JUDGMENT Mutuna, JS. delivered the judgment of the court. Mutuna, JS. delivered the judgment of the court. Cases referred to: Cases referred to: 1) Donogue v Stevenson (1932) AC 562 1) Donogue v Stevenson (1932) AC 562 2) Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 2) Blyth v Birmingham Waterworks Co (1856) H Exch 781 J2 J2 P.282 P.282 3) Turner v Royal Bank of Scotland (1999) 2 ALL ER (Comm.) 3) Turner v Royal Bank of Scotland (1999) 2 ALL ER (Comm.) 4) Phillips v Copping (1935) 1KB 15 4) Phillips v Copping (1935) 1KB 15 5) Re a debtor v Printline (offset) Ltd (1992) 2 ALL ER 664 5) Re a debtor v Printline (offset) Ltd (1992) 2 ALL ER 664 6) Tournier v National Provincial and Union Bank of England (1924) 1 6) Tournier v National Provincial and Union Bank of England (1924) 1 KB62 KB62 7} The Mediana (1900) AC 113 7) The Mediana (1900) AC 113 8) In Beaument v Geathead, (1846) 2 CB 494 8) In Beaument v Geathead, (1846) 2 CB 494 9) Stanbic Bank Zambia Limited v A. S. E. Enterprises and others (2008) 9) Stanbic Bank Zambia Limited v A. S. E. Enterprises and others (2008) 1 ZR 259 1 ZR 259 10) 10) Yula Enterprises Limited v Muchabani Atra (A/T Kamara Yula Enterprises Limited v Muchabani Atra (A/T Kamara General Dealers) SCZ No. 23 of 2008 General Dealers) SCZ No. 23 of 2008 11) 11) R v Pensions Ombudsman and others, ex parte Legal & R v Pensions Ombudsman and others, ex parte Legal & 12) 12) 13) 13) 14) 14) 15) 15) 16) 16) 17) 17) 18) 18) 19) 19) 20) 20) General Assurance Society Ltd (2003} 1 ALL ER Comm General Assurance Society Ltd (2003) 1 ALL ER Comm Edith Tshabalala v Attorney General (1999) ZR 139 Edith Tshabalala v Attorney General (1999) ZR 139 The Minister of Information and Broadcasting v Fanwell The Minister of Information and Broadcasting v Fanwell Chembo and others SCZ Judgment No. 11 of 2007 Chembo and others SCZ Judgment No. 11 of 2007 Attorney General v Million Juma (1984) ZR 1 Attorney General v Million Juma (1984) ZR 1 Daphne Alves v The Attorney General of the Virgin Islands Daphne Alves v The Attorney General of the Virgin Islands BVlHCV 2007/0306 BV1HCV 2007/0306 Attorney General v Chipango (1971) ZR 1 Attorney General v Chipango (1971) ZR 1 Buchman v The Attorney General (1993/1994) ZR 131 Buchman v The Attorney General (1993/1994) ZR 131 Mususu Kalenga Building Ltd and another v Richman's money Mususu Kalenga Building Ltd and another v Richman's money Lendors ENT (1999) ZR 27 Lendors ENT (1999) ZR 27 Hedley Byrne & Co. Ltd v Heller & Partners Ltd (1968) 2 ALL ER, 575 Hedley Byrne & Co. Ltd v Heller & Partners Ltd (1968) 2 ALL ER, 575 Robinson v National Bank of Scotland SCZ Judgment No. 10 of Robinson v National Bank of Scotland SCZ Judgment No. 10 of 1992 21) 21) Zambia Electricity Supply Corporation Limited v Redlines Zambia Electricity Supply Corporation Limited v Redlines Haulage Limited Haulage Limited Mhango v Ngulube and others (1983) ZR 6 Mhango v Ngulube and others (1983) ZR 6 JZ Car Hire Limited v Chala Scirocco and another (2002) ZR JZ Car Hire Limited v Chala Scirocco and another (2002) ZR 22) 22) 23) 23) J3 J3 P.283 P.283 24) 24) Financial Bank Zambia Limited and Rajan Mahtani v Simataa Financial Bank Zambia Limited and Rajan Mahtani v Simataa Simataa SCZ judgment No. 21 of 2017 Simataa SCZ judgment No. 21 of 2017 25) 25) David Chiyengele and others v Scaw Limited SCZ judgment No. David Chiyengele and others v Scaw Limited SCZ judgment No. 2 of2017 2 of 2017 26) 26) Emmanuel Mpundu v Mwansa Christopher Mulenga, Emmanuel Mpundu v Mwansa Christopher Mulenga, Christopher Mungoya and the Attorney General SCZ Judgment Christopher Mungoya and the Attorney General SCZ Judgment No. 42 of 2007 No. 42 of 2007 Legislation referred to: Legislation referred to: 1) Banking and Financial Services Act, Cap 387 of the Laws of Zambia 1) Banking and Financial Services Act, Cap 387 of the Laws of Zambia 2) Credit Reference Services (Licensing) Guidelines, 2006 2) Credit Reference Services (Licensing) Guidelines, 2006 3) Credit Data (Privacy) Code 3) Credit Data (Privacy) Code 4) Court of Appeal Act, No. 7 of 2016 4) Court of Appeal Act, No. 7 of 2016 5) Constitution (as amended) Act No. 2 of 2016 5) Constitution (as amended) Act No. 2 of 2016 6) Arbitration Act No. 19 of 2000 6) Arbitration Act No. 19 of 2000 7) Evidence (Bankers') Books Act, Cap 44 7) Evidence (Bankers') Books Act, Cap 44 8) Court of Appeal Act No. 7 of 2016 8) Court of Appeal Act No. 7 of 2016 Other works referred to: Other works referred to: 1) Banking Litigation by David Warne and Nicholas Elliott QC General 1) Banking Litigation by David Warne and Nicholas Elliott QC General Editors, Sweet and Maxwell, London 2005 Editors, Sweet and Maxwell, London 2005 2) A Practical Approach to Arbitration Law, Andrew and Keren 2) A Practical Approach to Arbitration Law, Andrew and Keren Tweendle Tweendie 3) Paget's Banking Law, 13th Edition, (Reed Elservier (UK) Ltd 2007) 3) Paget's Banking Law, 13th Edition, (Reed Elservier (UK) Ltd 2007) 4) Toulson R. G. and Phipps C. M. Confidentiality (2 nd Ed, London, Sweet 4) Toulson R. G. and Phipps C. M. Confidentiality (2nd Ed, London, Sweet and Maxwell 2006) and Maxwell 2006) J4 P.284 P.284 5) Granton Ross Principles of Banking Law, 2 nd Edition Oxford 5) Granton Ross Principles of Banking Law, 2nd Edition Oxford University Press 2002 University Press 2002 6) Chitty on Contracts Vol 1 General Principles Thirtieth Edition 6) Chitty on Contracts Vol 1 General Principles Thirtieth Edition London Sweet and Maxwell 2008 London Sweet and Maxwell 2008 7) Atkin's Court Forms, second edition Volume 32, 1996 issue, 7) Atkin's Court Forms, second edition Volume 32, 1996 issue, managing editor Inarid Persadsigh, Butterworths, London. managing editor Inarid Persadsigh, Butterworths, London. 8) Writing of Judgments: A Practical Guide For Courts and Tribunals by 8) Writing of Judgments: A Practical Guide For Courts and Tribunals by Dato Syed Ahmed Ibid, 2011 edition, Lexis Nexis and HUM Press Dato Syed Ahmed Ibid, 2011 edition, Lexis Nexis and HUM Press Introduction Introduction 1 The concept of credit referencing was fairly alien to The concept of credit referencing was fairly alien to the Zambian banking and financial sector until the the Zambian banking and financial sector until the year 2006. It entails the providing of customers' year 2006. It entails the providing of customers' credit data to a credit a credit data to a credit reference agency by a agency by reference credit provider and the search on such credit data credit provider and the search on such credit data by a credit provider for purposes of evaluating a by a credit provider for purposes of evaluating a customer's eligibility for credit. customer's eligibility for credit. 2 On 30th March 2006 the concept was introduced to 2 On 30th March 2006 the concept was introduced to the Zambian financial sector by virtue of the Credit the Zambian financial sector by virtue of the Credit Reference Services (Licensing) Guidelines and the Reference Services (Licensing) Guidelines and the Credit Data (Privacy) Code (the Code), issued by Credit Data (Privacy) Code (the Code), issued by J5 JS P.285 P.285 the Bank of Zambia. Afterwards, and pursuant to the Bank of Zambia. Afterwards, and pursuant to the powers conferred upon it by section 125 of the the powers conferred upon it by section 125 of the Banking and Financial Services Act, Bank of Banking and Financial Services Act, Bank of issued The Banking and Financial Zambia Zambia issued The Banking and Financial Services Act (Provision of Credit Data and Services Act (Provision of Credit Data and Services) Utilization of Credit Reference Utilization of Credit Reference Services) Directive 2008 (the Directive 2008) and Guidance Directive 2008 (the Directive 2008) and Guidance Note No.1 of 2014 - Utilization of the Credit Note No.l of 2014 - Utilization of the Credit Reporting System (the Guidance Note) on 10th Reporting System (the Guidance Note) on 10th December 2008 and 8th January 2014, respectively. December 2008 and 8th January 2014, respectively. These two documents gave directives and guidance These two documents gave directives and guidance on the provision of data to the credit reference on the provision of data to the credit reference agency and the use of such credit data by credit agency and the use of such credit data by credit providers. providers. On the other hand, the Code sets out obligations of On the other hand, the Code sets out obligations of various credit providers in Zambia in regard to the various credit providers in Zambia in regard to the provision of and resort to credit data with the credit provision of and resort to credit data with the credit J6 J6 P.286 P.286 reference agency and the obligations and rights of reference agency and the obligations and rights of these credit providers and customers. credit providers and customers. It is these It 1s obligations and rights that are the subject of the obligations and rights that are the subject of the contest in this appeal arising from a claim by the contest in this appeal arising from a claim by the Appellant that its rights were infringed by the Appellant that its rights were infringed by the Respondent when its credit data was provided to a Respondent when its credit data was provided to a credit reference agency. The contest also considers credit reference agency. The contest also considers the effect of the Directive 2008, Guidance Note, the effect of the Directive 2008, Guidance Note, Code and the Banking and Financial Services Code and the Banking and Financial Services Acts, in relation to the common law principle of the Acts, in relation to the common law principle of the duty of confidentiality owed by bankers to their duty of confidentiality owed by bankers to their customers and the exceptions thereto. customers and the exceptions thereto. 4 We have also considered the dispute in the light of 4 We have also considered the dispute in the light of the pleadings and evidence that were deployed the pleadings and evidence that were deployed before the High Court and the arguments which before the High Court and the arguments which were canvassed in the Court of Appeal. were canvassed in the Court of Appeal. J7 P.287 P.287 5 Last of all, we have considered the provisions Last of all, we have considered the provisions relating to a litigant's right of appeal to this Court as relating to a litigant's right of appeal to this Court as the apex Court, in the light of the provisions of the the apex Court, in the light of the provisions of the Court of Appeal Act and the Constitution of the Court of Appeal Act and the Constitution of the Republic of Zambia (as amended). Republic of Zambia (as amended). The background to the dispute in this appeal The background to the dispute in this appeal 6 The context in which the dispute arises is that the The context in which the dispute arises is that the parties enjoyed a banker and customer relationship parties enjoyed a banker and customer relationship as a result of which the Appellant applied for an as a result of which the Appellant applied for an overdraft in the sum of USD540,000.00 from the overdraft in the sum of USD540,000.00 from the it purchase a printing Respondent Respondent to enable it purchase a printing to enable machine. The security provided by the Appellant to machine. The security provided by the Appellant to lease over the printing the Respondent was a the Respondent was a lease over the printing machine. machine. 7 The monthly repayments on the lease were to be The monthly repayments on the lease were to be serviced through the Appellant's overdrawn account serviced through the Appellant's overdrawn account J8 J8 P.288 P.288 the with with the Respondent, pursuant to which, the the Respondent, pursuant to which, Appellant executed a debit order. Appellant executed a debit order. The Appellant had other credit facilities running The Appellant had other credit facilities running with the Respondent. with the Respondent. 9 During the life of the lease a problem appeared to During the life of the lease a problem appeared to have arisen in relation to the Respondent's system, have arisen in relation to the Respondent's system, as a result of which the Appellant's instructions in as a result of which the Appellant's instructions in the de bit order were being posted to a suspense the debit order were being posted to a suspense account. The the account account instead of the lease account. The instead of lease Respondent wrote to the Appellant on 23 rd April Respondent wrote to the Appellant on 23rd April 2009 informing it of this problem and that it had 2009 informing it of this problem and that it had since rectified it by transferring the funds wrongly since rectified it by transferring the funds wrongly lease posted posted to the suspense account to the lease the suspense account the to to the account. The Respondent also account. The Respondent also informed the informed Appellant that despite the transfer of these funds, Appellant that despite the transfer of these funds, the Appellant's account was still in arrears in the the Appellant's account was still in arrears in the J9 J9 P.289 P.289 sum of USD80,050.34, representing five months' sum of USD80,050.34, representing five months' installments. installments. 10 Prior to this, a difference arose as to whether the 10 Prior to this, a difference arose as to whether the Appellant was in default of payment on the facilities, Appellant was in default of payment on the facilities, the which prompted which prompted the Respondent to refer the the Respondent refer to Appellant's credit data to a credit reference agency Appellant's credit data to a credit reference agency after it notified the Appellant of the default on 10th after it notified the Appellant of the default on 10th October 2008. This did not please the Appellant October 2008. This did not please the Appellant which, consequently, complained not only to the which, consequently, complained not only to the Respondent, but Bank of Zambia as well. Respondent, but Bank of Zambia as well. 11 Afterwards, on 3 rd December, 2008, in response to a 11 Afterwards, on 3rd December, 2008, in response to a the query query from Standard Chartered Bank, the from Standard Chartered Bank, Respondent indicated that the Appellant was credit Respondent indicated that the Appellant was credit worthy. worthy. 12 Despite the differences between the parties, they 12 Despite the differences between the parties, they continued to engage each other in relation to the continued to engage each other in relation to the facilities, and agreed to restructure them in facilities, and agreed to restructure them in JlO J10 P.290 P.290 November 2009. The Appellant also approached November 2009. The Appellant also approached other prospective financiers who, in considering its other prospective financiers who, in considering its need for funding, checked on its credit data with the need for funding, checked on its credit data with the credit reference agency in 2010 and onwards. credit reference agency in 2010 and onwards. and between 13 The 13 The differences between the Appellant and the Appellant differences Respondent in regard to the alleged default by the Respondent in regard to the alleged default by the Appellant escalated after November 2009. The Appellant escalated after November 2009. The Appellant contended as follows: the default on its Appellant contended as follows: the default on its account arose from the error in the Respondent's account arose from the error in the Respondent's system and, despite the Respondent acknowledging system and, despite the Respondent acknowledging the error it neglected to rectify it but negligently the error it neglected to rectify it but negligently listed it on the credit reference bureau data base; listed it on the credit reference bureau data base; the Respondent continued charging interest on the the Respondent continued charging interest on the overdraft facility which resulted in the Appellant overdraft facility which resulted in the Appellant defaulting on its undertaking to pay towards the defaulting on its undertaking to pay towards the facility for the lease; and that, the Respondent's facility for the lease; and that, the Respondent's action of listing it on the credit reference bureau action of listing it on the credit reference bureau jii Jll P.291 P.291 resulted in loss of funding opportunities because it resulted in loss of funding opportunities because it did not qualify for any business lending. did not qualify for any business lending. 14 On the other hand, the Respondent contended that On the other hand, the Respondent contended that the Appellant had breached the lease on account of the Appellant had breached the lease on account of its default in servicing the monthly installments and its default in servicing the monthly installments and declared a dispute which was referred to arbitration. declared a dispute which was referred to arbitration. That it informed the Appellant of the default and the That it informed the Appellant of the default and the consequences thereof, but the Appellant continued consequences thereof, but the Appellant continued to be in default prompting it to refer its credit data to be in default prompting it to refer its credit data to the credit reference bureau, which data was only to the credit reference bureau, which data was only accessed by the Appellant's intending financiers accessed by the Appellant's intending financiers after the year 2008. In addition, after the arbitration after the year 2008. In addition, after the arbitration proceedings were concluded, the Respondent was proceedings were concluded, the Respondent was (or awarded awarded a sum of K7,535,237.96 (or of K7 ,535,237. 96 sum a it as a USDl,363,350.49) as moneys due USD 1,363,350.49) as moneys due to it as a to consequence of the Appellant's default. The the Appellant's default. The consequence of Appellant was accordingly ordered by the arbitrator Appellant was accordingly ordered by the arbitrator J12 J12 P.292 P.292 the to settle to settle the said amount, failing which, the the said amount, failing which, Respondent was at liberty to repossess and sell the Respondent was at liberty to repossess and sell the property pledged as security for the lease. property pledged as security for the lease. The Appellant's claim and Respondent's defence before The Appellant's claim and Respondent's defence before the High Court the High Court 15 The Appellant took out an action against the 15 The Appellant took out an action against the Respondent in the High Court claiming: the sum of Respondent in the High Court claiming: the sum of Kl 92,500,000.00 as damages for loss of business; K192,500,000.00 as damages for loss of business; an order that it be delisted from the credit reference an order that it be delisted from the credit reference loss of business profits; bureau; damages bureau; damages for loss of business profits; for injury to damages for negligence; damages for damages for negligence; damages for injury to business reputation; and any other relief the court business reputation; and any other relief the court deemed fit. deemed fit. 16 Essentially, the Appellant anchored its claim on the 16 Essentially, the Appellant anchored its claim on the contention that the Respondent was negligent 1n contention that the Respondent was negligent in listing it on the credit reference bureau; that it listing it on the credit reference bureau; that it J13 J13 P.293 P.293 ought not to have done so; and, as a consequence of ought not to have done so; and, as a consequence of the said listing, it suffered damage in the form of the said listing, it suffered damage in the form of lost business opportunities. lost business opportunities. 1 7 In its defence, the Respondent contended that the In its defence, the Respondent contended that the default on the Appellant's account was not due to an default on the Appellant's account was not due to an error in its system but rather the Appellant's failure error in its system but rather the Appellant's failure to consistently service the facility on the lease in to consistently service the facility on the lease in the agreement of the parties. accordance with accordance with the agreement of the parties. listing of the it denied that the Consequently, Consequently, it denied that the listing of the the credit reference bureau was Appellant on Appellant on the credit reference bureau was the Appellant's default had been negligent as negligent as the Appellant's default had been established and that it was done in accordance with established and that it was done in accordance with the provisions of the relevant law. the provisions of the relevant law. 18 The Respondent contended further that: in any 18 The Respondent contended further that: in any event, the listing of a party on the credit reference event, the listing of a party on the credit reference bureau, in and of itself, does not preclude it from bureau, in and of itself, does not preclude it from accessing credit; and, if the default by the Appellant accessing credit; and, if the default by the Appellant J14 J14 P.294 P.294 was attributable to a failure of the Respondent's was attributable to a failure of the Respondent's system, the arbitrator would have found in favor of system, the arbitrator would have found in favor of the Appellant. the Appellant. Consideration of the matter by the Learned High Court Consideration of the matter by the Learned High Court Judge and decision Judge and decision 19 After the Learned High Court Judge heard the 19 After the Learned High Court Judge heard the evidence and arguments by the two parties, he evidence and arguments by the two parties, he identified the Appellant's claim as being premised on identified the Appellant's claim as being premised on the tort of negligence stemming from the relief of the tort of negligence stemming from the relief of damages for negligence endorsed on the writ of damages for negligence endorsed on the writ of the Respondent. He, sununons summons issued against the Respondent. He, issued against therefore, summarized the Appellant's contention as therefore, summarized the Appellant's contention as being that the Respondent acted negligently in being that the Respondent acted negligently in listing the Appellant on the credit reference agency listing the Appellant on the credit reference agency data base in total disregard of its rights and data base in total disregard of its rights and business reputation which resulted in the Appellant business reputation which resulted in the Appellant J15 JlS P.295 P.295 losing out on funding opportunities. In addition, the losing out on funding opportunities. In addition, the Appellant's business reputation was severely injured Appellant's business reputation was severely injured and lowered. and lowered. 20 The Learned High Court Judge then considered the 20 The Learned High Court Judge then considered the the Respondent's Respondent's defence and summarized the summarized defence and the Respondent's contentions as being Respondent's contentions as being that: the that: Appellant failed to service the overdraft resulting in Appellant failed to service the overdraft resulting in default on its part; there was no negligence on its default on its part; there was no negligence on its part in the manner it reported the Appellant to the part in the manner it reported the Appellant to the credit reference agency which, in his opinion, was in credit reference agency which, in his opinion, was in conformity with the law; and, the Appellant's default conformity with the law; and, the Appellant's default was not attributable to an error in the Respondent's was not attributable to an error in the Respondent's system. system. 21 As a consequence of the foregoing consideration, the 21 As a consequence of the foregoing consideration, the Learned High Court Judge found that in order for Learned High Court Judge found that in order for the Appellant to succeed, it had to prove that: the the Appellant to succeed, it had to prove that: the Respondent owed it a duty of care; it had been guilty Respondent owed it a duty of care; it had been guilty J16 J16 P.296 P.296 of breach of that duty; and, damage had been of breach of that duty; and, damage had been caused to the Appellant as a consequence thereof. caused to the Appellant as a consequence thereof. 22 The Judge referred to the case of Donoghue v 22 The Judge referred to the case of Donoghue v Stevenson1 which he stated enunciated the three Stevenson1 which he stated enunciated the three principles required to prove negligence aforestated. principles required to prove negligence aforestated. He also defined who one's neighbour 1s 1n He also defined who one's neighbour is in accordance with the opinion of Lord Atkins 1n the accordance with the opinion of Lord Atkins in the case of Donogue v Stevenson1 and defined case of Donogue v Stevenson1 and defined negligence in line with the decision in the case of negligence in line with the decision in the case of Blyth v Birmingham Waterworks Co. 2 Blyth v Birmingham Waterworks Co.2 23 The Judge went on to find that the relationship 23 The Judge went on to find that the relationship between the Respondent and Appellant was that of between the Respondent and Appellant was that of banker and customer/ client and as such, a duty of banker and customer/client and as such, a duty of care existed. This, the Judge observed, entailed that care existed. This, the Judge observed, entailed that the Respondent owed a duty to use reasonable skill the Respondent owed a duty to use reasonable skill and care when providing services to the Appellant and care when providing services to the Appellant J17 J17 P.297 P.297 which, subject to certain exceptions, extended to which, subject to certain exceptions, extended to keeping the Appellant's financial affairs confidential. keeping the Appellant's financial affairs confidential. 24 The Learned High Court Judge, concluded by 24 The Learned High Court Judge, concluded by finding that banks, such as the Respondent, in finding that banks, such as the Respondent, in certain circumstances owe private customers a duty certain circumstances owe private customers a duty to act in good faith, fairly and reasonably, in to act in good faith, fairly and reasonably, in regulations and accordance with extra accordance with extra legal regulations and legal termed, miscellaneous prov1s1ons 1n, what he miscellaneous provisions in, what he termed, Statutory Consumer Protection laws. That it was Statutory Consumer Protection laws. That it was the common cause between common cause between the parties that the the parties that Respondent owed the Appellant a duty of care. Respondent owed the Appellant a duty of care. 25 Having set out what he considered to have been the 25 Having set out what he considered to have been the relevant legal principles for the purpose of resolving relevant legal principles for the purpose of resolving the Judge identified the issue for the dispute, the dispute, the Judge identified the issue for the determination as being, whether or not determination as being, whether or not the Respondent had breached the duty of care it owed to Respondent had breached the duty of care it owed to the Appellant as alleged. In answer to the question the Appellant as alleged. In answer to the question Jl8 J18 P.298 P.298 posed, the Learned High Court Judge reviewed the posed, the Learned High Court Judge reviewed the evidence and found that the alleged default by the evidence and found that the alleged default by the Appellant in servicing the facility arose in October Appellant in servicing the facility arose in October the 2008, which coincided with 2008, which coincided with the error in the the error in Respondent's system which occurred in November Respondent's system which occurred in November 2008, as revealed by the letter of 23 rd April 2009. 2008, as revealed by the letter of 23rd April 2009. This evidence satisfied the Judge that it was the This evidence satisfied the Judge that it was the error in the Respondent's system and not the non error in the Respondent's system and not the non performing status of the account which caused the performing status of the account which caused the default on the Appellant's lease account. default on the Appellant's lease account. 26 The Judge felt fortified in his finding by the fact 26 The Judge felt fortified in his finding by the fact that the Respondent admitted the error in its that the Respondent admitted the error in its therefore, held that at the time of system. He, system. He, therefore, held that at the time of the credit reporting the Appellant's account to reporting the Appellant's account to the credit reference agency as delinquent, the Respondent had reference agency as delinquent, the Respondent had not conducted adequate investigations to ascertain not conducted adequate investigations to ascertain the real cause of the default on the Appellant's lease the real cause of the default on the Appellant's lease J19 J19 P.299 P.299 account. That, if the Respondent had done so, it account. That, if the Respondent had done so, it would have discovered the cause of the default as would have discovered the cause of the default as the being being the error on its system and that the its system and the error on that Appellant's account was at the material time not in Appellant's account was at the material time not in a non performing status. a non performing status. 27 The Learned High Court Judge sought to ring fence 27 The Learned High Court Judge sought to ring fence his findings by referring to legal provisions. He his findings by referring to legal provisions. He referred to clauses 2. 6 and 2. 7 of the Code which referred to clauses 2.6 and 2.7 of the Code which state as fallows: state as follows: "2.6 Before a credit provider provides any credit data to a "2.6 Before a credit provider provides any credit data to a CRA, it shall have taken reasonably practicable steps to CRA, it shall have taken reasonably practicable steps to check such data for accuracy. If subsequently the credit check such data for accuracy. If subsequently the credit provider discovers any inaccuracy in the data which has provider discovers any inaccuracy in the data which has been provided to the CRA, it shall update such data held been provided to the CRA, it shall update such data held in the database of the CRA as soon as possible. in the database of the CRA as soon as possible. If a credit provider fails to have taken reasonably 2. 7 2.7 If a credit provider fails to have taken reasonably practicable steps to check the accuracy of the data practicable steps to check the accuracy of the data before providing such data to a CRA, or if it fails to before providing such data to a CRA, or if it fails to update the data held in the data base of the CRA after update the data held in the data base of the CRA after discovering such inaccuracy, this will give rise to a discovering such inaccuracy, this will give rise to a presumption of contravention of DPP2 ( 1 ). " presumption of contravention of DPP2 (1)." J20 J20 P.300 P.300 He explained that DPP2 ( 1) which is Data Protection He explained that DPP2 (1) which is Data Protection Principle, contains similar provisions to clause 2.6 Principle, contains similar provisions to clause 2.6 of the Code. of the Code. 28 The Learned High Court Judge concluded that the 28 The Learned High Court Judge concluded that the data provided to the credit reference agency by the data provided to the credit reference agency by the Respondent, as at October 2008, was not accurate Respondent, as at October 2008, was not accurate because it did not take reasonably practical steps to because it did not take reasonably practical steps to check the data. The referral decision arose from check the data. The referral decision arose from "automated decision what what the Judge termed, "automated decision the Judge termed, making", as a result, the Respondent not only acted making", as a result, the Respondent not only acted carelessly but also negligently. According to the carelessly but also negligently. According to the Judge, that was not the end of the matter, because Judge, that was not the end of the matter, because the Respondent's default also extended to its failure the Respondent's default also extended to its failure to obtain the Appellant's express consent to the to obtain the Appellant's express consent to the reference of its confidential information to the credit reference of its confidential information to the credit reference agency. This, he found, was in line with reference agency. This, he found, was in line with J21 J21 P.301 P.301 section 50 (i) (a) of the Banking and Financial section 50 (i) (a) of the Banking and Financial Services Act which states as follows: Services Act which states as follows: "50(i) A f'mancial service provider and every director and "5O(i) A financial service provider and every director and employee thereof shall maintain the confidentiality of all employee thereof shall maintain the confidentiality of all confidential information obtained in the course of confidential information obtained in the course of service to the bank or institution and shall not divulge service to the bank or institution and shall not divulge the same except the same except (a) (a) In accordance with the express consent of the In accordance with the express consent of the customer or Order of a Court; or customer or Order of a Court; or (b) Where the interest of the licensee itself requires (b) Where the interest of the licensee itself requires disclosure; disclosure; (c) Where the Bank of Zambia, in carrying out its (c) Where the Bank of Zambia, in carrying out its functions under this Act, so requests " functions under this Act, so requests " 29 The Learned High Court Judge found that there was 29 The Learned High Court Judge found that there was no evidence on record nor was any brought to his no evidence on record nor was any brought to his attention by the Respondent that it had sought and attention by the Respondent that it had sought and the Appellant expressly consented to the reference of the Appellant expressly consented to the reference of its confidential information to the credit reference its confidential information to the credit reference agency. He reinforced this position by reference to agency. He reinforced this position by reference to the English case of Turner v Royal Bank of the English case of Turner v Royal Bank of J22 J22 P.302 P.302 Scotland3 in which the Court of Appeal in England Scotland3 in which the Court of Appeal in England the practice of banks giving credit held held that the practice of banks giving credit that references to other banks could not be justified on references to other banks could not be justified on the basis of the customer having given his implied the basis of the customer having given his implied consent to the practices and was, on the facts of consent to the practices and was, on the facts of that case, a breach of contract. In addition, he that case, a breach of contract. In addition, he pointed out that the learned authors of Banking pointed out that the learned authors of Banking Litigation ref erred to the Turner case when dealing Litigation referred to the Turner case when dealing with the topic of credit reference agencies and the with the topic of credit reference agencies and the Banking Code in England in a passage at page 81 Banking Code in England in a passage at page 81 paragraph 2.072 as follows: paragraph 2.072 as follows: "Paragraph 13.6 of the Banking Code and paragraph 13.10 of "Paragraph 13.6 of the Banking Code and paragraph 13.10 of the Business Banking Code restrict the disclosure of the Business Banking Code restrict the disclosure of information about personal debts to credit reference agencies. information about personal debts to credit reference agencies. This is limited to cases where the customer has fallen behind This is limited to cases where the customer has fallen behind with payments, the amount is undisputed, no satisfactory with payments, the amount is undisputed, no satisfactory proposals for payment have been made following formal proposals for payment have been made following formal demand and the customer has been given 28 days notice of demand and the customer has been given 28 days notice of intention to disclose. No other information will be disclosed intention to disclose. No other information will be disclosed to credit reference agencies without the customer's consent. to credit reference agencies without the customer's consent. Banks should ensure that their contracts with the customers Banks should ensure that their contracts with the customers J23 J23 P.303 P.303 incorporate a right to give confidential information to Credit incorporate a right to give confidential information to Credit reference agencies as the Banking Code is not a contractual reference agencies as the Banking Code is not a contractual document unless the bank and customer agree that it should document unless the bank and customer agree that it should be. Paragraph 112 of the Banking Code states that banker's be. Paragraph 112 of the Banking Code states that banker's reference will not be provided without the written permission reference will not be provided without the written permission of the customer." of the customer." 30 The Judge likened the provisions of the Banking 30 The Judge likened the provisions of the Banking Code in England set out in the preceding paragraph Code in England set out in the preceding paragraph to clauses 2.1, 4.1 and 2.3 of the Code. According to to clauses 2.1, 4.1 and 2.3 of the Code. According to the Judge, clause 2.1 states the need for a credit the Judge, clause 2.1 states the need for a credit provider to notify a customer that credit data provider to notify a customer that credit data collected from him may be provided to a credit collected from him may be provided to a credit agency, while clause 4.1 emphasizes the fact that agency, while clause 4.1 emphasizes the fact that the requirement to furnish credit data to a credit the requirement to furnish credit data to a credit reference agency in respect of a defaulting customer reference agency in respect of a defaulting customer its duty of by a bank, does not abrogate by a bank, does not abrogate its duty of confidentiality to the said customer. confidentiality to the said customer. 31 In regard to clause 2.1 and in particular clause 2.3, In regard to clause 2.1 and in particular clause 2.3, the Learned High Court Judge dismissed the the Learned High Court Judge dismissed the J24 J24 P.304 P.304 Respondent's contention that the letter dated 10th Respondent's contention that the letter dated 10th the October 2008, October 2008, from the Respondent to the the Respondent from to Appellant, was sufficient notice on the grounds that Appellant, was sufficient notice on the grounds that the notification given fell short of the requirement the notification given fell short of the requirement under the clause and made no reference to the under the clause and made no reference to the credit reference agency. credit reference agency. 32 Lastly, the Learned High Court Judge found that 32 Lastly, the Learned High Court Judge found that clause 2.3 sets out the need for a bank to notify a clause 2.3 sets out the need for a bank to notify a defaulting customer of the consequences of failure defaulting customer of the consequences of failure to repay an account that is in default. to repay an account that is in default. 33 In making the findings on confidentiality set out in In making the findings on confidentiality set out in the preceding paragraphs, as well as the need for a the preceding paragraphs, as well as the need for a the customer's consent under section 50 of customer's consent under section 50 of the Banking and Financial Services Act and the Banking and Financial Services Act and the Code, the Judge acknowledged that the issue of Code, the Judge acknowledged that the issue of breach of confidentiality was not pleaded by the breach of confidentiality was not pleaded by the Appellant in the originating process. He, Appellant in the originating process. He, J25 J25 P.305 P.305 nonetheless, reasoned that he was clothed with nonetheless, reasoned that he was clothed with jurisdiction to consider it as he was duty bound to jurisdiction to consider it as he was duty bound to consider any breaches of the law regardless of consider any breaches of the law regardless of whether they had been pleaded or not. The Judge whether they had been pleaded or not. The Judge took solace in the decision in the case of Phillips v took solace in the decision in the case of Phillips v Copping4 in which Scrulton W had the following to Copping4 in which Scrulton LJ had the following to say at page 15: say at page 15: "It is the duty of the Court when asked to give a Judgment "It is the duty of the Court when asked to give a Judgment which is contrary to statute to take the point, although the which is contrary to statute to take the point, although the litigants may not take it. Illegality once brought to the litigants may not take it. Illegality once brought to the attention of the Court overrides all questions of pleadings attention of the Court overrides all questions of pleadings including any admission made therein." including any admission made therein." 34 The Learned High Court Judge concluded on the 34 The Learned High Court Judge concluded on the issue of liability by finding the Respondent in breach issue of liability by finding the Respondent in breach of both the Banking and Financial Services Act of both the Banking and Financial Services Act and the Code. He found the Respondent's actions as and the Code. He found the Respondent's actions as being, not only deliberate but also, careless and being, not only deliberate but also, careless and negligent and falling below the legal standard negligent and falling below the legal standard J26 J26 P.306 P.306 the established established to protect customers, such as the to protect customers, such as Appellant, against unreasonable risk of harm and Appellant, against unreasonable risk of harm and amounted to culpable carelessness. The Judge went amounted to culpable carelessness. The Judge went on to condemn the Respondent for failing to rectify on to condemn the Respondent for failing to rectify its omission given that the two parties were engaged its omission given that the two parties were engaged in restructuring the facility around October 2008 in restructuring the facility around October 2008 and immediately thereafter; and, the debt being fully and immediately thereafter; and, the debt being fully secured by legal mortgages. He found that the secured by legal mortgages. He found that the restructuring negotiations and the status of the restructuring negotiations and the status of the loans as being fully secured put the Appellant out of loans as being fully secured put the Appellant out of the realms of an entity that was unable to pay its the realms of an entity that was unable to pay its debts. Regard was had, in respect of the latter debts. Regard was had, in respect of the latter finding, to the decision in the case of Re a ex parte finding, to the decision in the case of Re a ex parte the debtor v Printline (offset) Ltd5 • He also took the debtor v Printline (offset) Ltd5. He also took the view that the letter by the Respondent to the view that the letter by the Respondent to Standard Chartered Bank revealed an honest belief Standard Chartered Bank revealed an honest belief J27 J27 P.307 P.307 by the Respondent that the Appellant was credit by the Respondent that the Appellant was credit worthy. worthy. 35 The Learned High Court Judge then considered the 35 The Learned High Court Judge then considered the issue of whether or not the Appellant suffered issue of whether or not the Appellant suffered the breaches consequence of damage as damage as a consequence of the breaches a highlighted above. highlighted above. 36 As a preamble to the determination, the Judge went 36 As a preamble to the determination, the Judge went on a crusade of defining the role of credit reference on a crusade of defining the role of credit reference agencies, their objectives and purpose as being: agencies, their objectives and purpose as being: gathering of, what he termed, "black information" on gathering of, what he termed, "black information" on individuals and business houses; providing such individuals and business houses; providing such information to banks and other lending institutions; information to banks and other lending institutions; and, to assist such banks and lending ins ti tu tions and, to assist such banks and lending institutions to make decisions on whether or not to lend money. to make decisions on whether or not to lend money. He described credit reference agencies as "very He described credit reference agencies as "very powerful the powerful institutions in finance" and that the finance" and institutions that in information they give which is usually not sieved information they give which is usually not sieved J28 J28 P.308 P.308 a and accepted without question can have and accepted without question can have a future. substantial substantial impact on one's financial future. impact on one's financial Further, despite the directive by Bank of Zambia Further, despite the directive by Bank of Zambia under the Guidance Note that credit reporting is not under the Guidance Note that credit reporting is not intended to be a black listing system and as such intended to be a black listing system and as such not intended to lock-out would-be borrowers from not intended to lock-out would-be borrowers from banks and lending institutions, more often than not, banks and lending institutions, more often than not, it serves as a blacklisting mechanism because most it serves as a blacklisting mechanism because most banks and lending institutions are not keen to banks and lending institutions are not keen to advance moneys to any business entity or individual advance moneys to any business entity or individual listed on the credit reference agency. listed on the credit reference agency. 37 In conclusion, the Judge found the evidence on In conclusion, the Judge found the evidence on record revealing that the listing of the Appellant on record revealing that the listing of the Appellant on the credit reference bureau was negligently done the credit reference bureau was negligently done impact on the Appellant. and had an adverse and had an adverse impact on the Appellant. Further, the evidence revealed that the Appellant Further, the evidence revealed that the Appellant who is specialized in global supply chain who is specialized in global supply chain J29 J29 P.309 P.309 management, logistics and project management and management, logistics and project management and dependent on financing from banks and financial dependent on financing from banks and financial institutions was, as a consequence of the listing, institutions was, as a consequence of the listing, denied access to funds by banks and financial denied access to funds by banks and financial the institutions as evident from documents institutions as evident from documents in the in bundle of documents. bundle of documents. 38 The Learned High Court Judge accordingly held that 38 The Learned High Court Judge accordingly held that the Appellant had proved its case on a balance of the Appellant had proved its case on a balance of probabilities and awarded it all the reliefs sought. probabilities and awarded it all the reliefs sought. He also awarded the Appellant general damages He also awarded the Appellant general damages which he referred to the Learned Deputy Registrar which he referred to the Learned Deputy Registrar for assessment and costs to be taxed in default of for assessment and costs to be taxed in default of agreement. agreement. Grounds of appeal to the Court of Appeal Grounds of appeal to the Court of Appeal 39 The judgment by the Learned High Court Judge 39 The judgment by the Learned High Court Judge resulted in an appeal by the Respondent to the resulted in an appeal by the Respondent to the Court of Appeal on seven grounds as follows: Court of Appeal on seven grounds as follows: J30 J30 P.310 P.310 1) The Learned Trial Judge erred in fact and law when; 1) The Learned Trial Judge erred in fact and law when; a) He made findings of fact that the [Respondent] had acted a) He made findings of fact that the [Respondent] had acted negligently when it determined that the [Appellant's[ loan negligently when it determined that the [Appellant's! loan account was in default and proceeded to classify it as a account was in default and proceeded to classify it as a delinquent account; delinquent account; b) He made findings of fact that the [Appellant] should not b) He made findings of fact that the [Appellant] should not have been listed on the Credit Reference Agency on the have been listed on the Credit Reference Agency on the basis that the debt was fully secured by legal mortgages; basis that the debt was fully secured by legal mortgages; c) He made a finding of fact when he held that the issue of c) He made a finding of fact when he held that the issue of in October 2008 notwithstanding default only arose default only arose in October 2008 notwithstanding evidence on record of the [Appellant's] default prior to that evidence on record of the [Appellant's] default prior to that date; date; d) It held that the [Appellant] was not indebted to the d) It held that the [Appellant] was not indebted to the [Respondent] by misconstruing the import of the letter [Respondent] by misconstruing the import of the letter dated 23 rd April 2009 from to the dated 23rd April 2009 from the [Respondent] to the the [Respondent] [Appellant]; and [Appellant]; and e) It held that the [Appellant[ had suffered loss as a result of e) It held that the [Appellant! had suffered loss as a result of being listed on the Credit Reference despite the [Appellant] being listed on the Credit Reference despite the [Appellant] having failed to prove any loss at trial. having failed to prove any loss at trial. 2) The Learned Trial Judge erred in law when he fixed the date 2) The Learned Trial Judge erred in law when he fixed the date for hearing and thereafter commenced the trial before the for hearing and thereafter commenced the trial before the parties had filed Bundles of Documents and thereafter thereafter parties had filed Bundles of Documents and permitted the parties to file Bundles of Documents ex post permitted the parties to file Bundles of Documents ex post facto (after the fact) and consequently filed amended and facto (after the fact) and consequently filed amended and Supplementary witness statements. Supplementary witness statements. 3) The Learned Trial Judge erred in law and fact when it ordered 3) The Learned Trial Judge erred in law and fact when it ordered that the [Appellant] be delisted from the credit Reference that the [Appellant] be delisted from the credit Reference J31 J31 P.311 P.311 the Agency admissions Agency notwithstanding the [Appellant's] admissions notwithstanding [Appellant's] contained in its statement of claim filed in the court below contained in its statement of claim filed in the court below confirming findings of indebtedness and/ or default in the confirming findings of indebtedness and/or default in the arbitration proceedings under cause number 2013/HP/ARB arbitration proceedings under cause number 2013/HP/ARB 14. 14. 4) The Learned Trial Judge misdirected himself in law when he 4) The Learned Trial Judge misdirected himself in law when he proceeded to determine suo motu ( on his own motion) the proceeded to determine suo motu (on his own motion) the issue of confidentiality under section 50 of the Banking and issue of confidentiality under section 50 of the Banking and Financial Services Act, Chapter 387, volume 21 of the Laws of Financial Services Act, Chapter 387, volume 21 of the Laws of Zambia which deals with the requirement of customer consent Zambia which deals with the requirement of customer consent and prior notification under the Credit Data (Privacy) Code and prior notification under the Credit Data (Privacy) Code issued by the Bank of Zambia when these were not pleaded issued by the Bank of Zambia when these were not pleaded and no evidence adduced. and no evidence adduced. 5) The Learned Trial Judge erred in law and fact when it awarded 5) The Learned Trial Judge erred in law and fact when it awarded the [Appellant] damages for loss of business, damages for loss the [Appellant] damages for loss of business, damages for loss of business and profits, damages for injury to business of business and profits, damages for injury to business reputation and damages for negligence when there was no reputation and damages for negligence when there was no evidence adduced by the Appellant at trial to support these evidence adduced by the Appellant at trial to support these claims, and after having acknowledged that Appellant had not claims, and after having acknowledged that Appellant had not addressed the Court below on the requisite ingredients of addressed the Court below on the requisite ingredients of negligence. negligence. 6) The Learned Trial Judge erred in law by admitting an Expert 6) The Learned Trial Judge erred in law by admitting an Expert Report which was filed in the absence of the requisite notices Report which was filed in the absence of the requisite notices videlicet; Hearsay Notice and Expert Report Notice. videlicet, Hearsay Notice and Expert Report Notice. 7) The Learned Trial Judge erred in law and fact when it did not 7) The Learned Trial Judge erred in law and fact when it did not adjudicate on all issues in controversy. adjudicate on all issues in controversy. J32 J32 P.312 P.312 The arguments advanced by the parties in the Court of The arguments advanced by the parties in the Court of Appeal Appeal 40 At the hearing of the appeal in the Court of Appeal 40 At the hearing of the appeal in the Court of Appeal both parties filed heads of argument and presented both parties filed heads of argument and presented viva voce arguments. The Respondent abandoned viva voce arguments. The Respondent abandoned ground 2 in prosecuting the appeal. ground 2 in prosecuting the appeal. 41 In its arguments the Respondent took the view that In its arguments the Respondent took the view that the Learned High Court Judge made a wrong finding the Learned High Court Judge made a wrong finding to of fact, which was perverse and amendable of fact, which was perverse and amendable to to the status of the setting aside, setting aside, in relation to the status of the in relation Appellant's account. The perverse finding arose from Appellant's account. The perverse finding arose from the Learned High Court Judge's misinterpretation of the Learned High Court Judge's misinterpretation of the effect of the letter of 23 rd April 2009 and the the effect of the letter of 23rd April 2009 and the effect of a loan secured by a mortgage. According to effect of a loan secured by a mortgage. According to Respondent, there was sufficient evidence on record, Respondent, there was sufficient evidence on record, which included the Appellant conceding to the which included the Appellant conceding to the arbitration, to show that the Appellant was in arbitration, to show that the Appellant was in J33 J33 P.313 P.313 default from before October 2008, as a result of its default from before October 2008, as a result of its failure to settle the facility on the lease as agreed by failure to settle the facility on the lease as agreed by September 2008. In relation to the payment made September 2008. In relation to the payment made by the Appellant of USDl00,000.00, the Respondent by the Appellant of USD100,000.00, the Respondent argued that the Appellant's witness, one Clever argued that the Appellant's witness, one Clever the payment of Mpoha, Mpoha, did concede that the payment of concede that did USD 100,000.00 related to the facility availed 1n USD 100,000.00 related to the facility availed in 2007 which was restructured and not the lease. 2007 which was restructured and not the lease. 42 The Respondent argued further that it complied with 42 The Respondent argued further that it complied with the law prior to referring the Appellant's credit data the law prior to referring the Appellant's credit data to the credit reference bureau because it notified the to the credit reference bureau because it notified the Appellant of the default in October 2008 and it had Appellant of the default in October 2008 and it had its written consent for such reference. It, therefore, its written consent for such reference. It, therefore, invited the Court of Appeal to interfere with the invited the Court of Appeal to interfere with the findings made by the Learned High Court Judge to findings made by the Learned High Court Judge to the contrary. the contrary. J34 J34 P.314 P.314 43 In regard to the Appellant's allegation of breach of In regard to the Appellant's allegation of breach of duty of care, the Respondent contended that the duty of care, the Respondent contended that the burden lay with the Appellant to prove such breach. burden lay with the Appellant to prove such breach. It also denied breach of such duty on account of the It also denied breach of such duty on account of the error in its system because the default by the error in its system because the default by the Appellant was not as a consequence of the system Appellant was not as a consequence of the system error but rather the Appellant's failure to service the error but rather the Appellant's failure to service the facility. facility. 44 On the issue of consent for the disclosure of the 44 On the issue of consent for the disclosure of the Appellant's credit data, the Respondent's position Appellant's credit data, the Respondent's position was that it did obtain the consent and that in any was that it did obtain the consent and that in any event, the duty owed of confidentiality, which was event, the duty owed of confidentiality, which was allegedly breached, is not absolute but qualified in allegedly breached, is not absolute but qualified in accordance with the case of Tournier v National accordance with the case of Tournier v National Provincial and Union Bank of England6 which is Provincial and Union Bank of England6 which is J35 J35 P.315 P.315 Replicated by the exceptions set out in section 50 of Replicated by the exceptions set out in section 50 of the Banking and Financial Services Act. the Banking and Financial Services Act. 45 The Learned High Court Judge, quoted section 50 45 The Learned High Court Judge, quoted section 50 selectively and did not address his mind to all the selectively and did not address his mind to all the exceptions in the section. exceptions in the section. 46 Further, the directive from Bank of Zambia required 46 Further, the directive from Bank of Zambia required the submission of both negative and positive credit the submission of both negative and positive credit data to the credit reference agency. data to the credit reference agency. 4 7 Consequently, consent having been established 47 Consequently, consent having been established there was no need for the Learned High Court Judge there was no need for the Learned High Court Judge of his own motion, to raise and determine the issue of his own motion, to raise and determine the issue of illegality. of illegality. 48 Arguing in the alternative, the Respondent urged the 48 Arguing in the alternative, the Respondent urged the Court to imply a term into the loan agreement that Court to imply a term into the loan agreement that the Appellant had consented to being listed on the the Appellant had consented to being listed on the credit reference agency. credit reference agency. J36 J36 P.316 P.316 49 As regards the award of damages, the Respondent 49 As regards the award of damages, the Respondent took the view that the award was not justified as took the view that the award was not justified as to support it. there was no evidence adduced there was no evidence adduced to support it. Further, that the evidence relied upon by the Further, that the evidence relied upon by the Learned High Court Judge in awarding the damages Learned High Court Judge in awarding the damages was hearsay and, therefore, inadmissible. was hearsay and, therefore, inadmissible. 50 In relation to quantum of damages and the award of In relation to quantum of damages and the award of the Respondent the sum of Kl 92,500,000.00, the sum of K192,500,000.00, the Respondent questioned the failure by the Learned High Court questioned the failure by the Learned High Court Judge to determine whether the claim could stand Judge to determine whether the claim could stand as a liquidated demand. As such, the award of the as a liquidated demand. As such, the award of the sum Kl 92,500,000.00 was, not only a gross failure sum K192,500,000.00 was, not only a gross failure to adjudicate on the part of the Judge, but would to adjudicate on the part of the Judge, but would also result in unjust enrichment. also result in unjust enrichment. 51 In response to the Respondent's arguments' the In response to the Respondent's arguments' the Appellant argued that although it was indebted to Appellant argued that although it was indebted to J37 J37 P.317 P.317 the Respondent it was not in default. In addition, the Respondent it was not in default. In addition, the Respondent stopped crediting the lease account the Respondent stopped crediting the lease account in November 2008 in accordance with the stop order in November 2008 in accordance with the stop order due to an error in its system which was confirmed due to an error in its system which was confirmed by the letter dated 23rd April 2009. The Learned High by the letter dated 23rd April 2009. The Learned High Court Judge did not misconstrue the letter. Court Judge did not misconstrue the letter. 52 The Learned High Court Judge was, therefore, on 52 The Learned High Court Judge was, therefore, on firm ground when he held that as at 31 st October firm ground when he held that as at 31st October 2008 the Appellant was not in default as evidenced 2008 the Appellant was not in default as evidenced by the payments made of USD16,563.17 on 28 th by the payments made of USD 16,563.17 on 28th October 2008 and a total of USDl00,000.00 on 5th, October 2008 and a total of USD 100,000.00 on 5th, 6 th and 26th November 2008. These payments were 6th and 26th November 2008. These payments were to facilitate the restructuring of the loan in January to facilitate the restructuring of the loan in January 2009. 2009. 53 The Appellant also agreed with the finding by the 53 The Appellant also agreed with the finding by the Learned High Court Judge that the letter of 3rd Learned High Court Judge that the letter of 3rd December 2008 by the Respondent to Standard December 2008 by the Respondent to Standard J38 J38 P.318 P.318 Chartered Bank revealed an honest view by the Chartered Bank revealed an honest view by the Respondent that the Appellant was credit worthy Respondent that the Appellant was credit worthy despite the referral to the credit reference agency of despite the referral to the credit reference agency of its credit data. its credit data. 54 The Appellant denied consenting to its credit data 54 The Appellant denied consenting to its credit data being referred to a credit reference agency or signing being referred to a credit reference agency or signing a facility letter which embodied such consent. It also a facility letter which embodied such consent. It also contended that the Respondent did not follow the contended that the Respondent did not follow the relevant law before referring its credit data to the relevant law before referring its credit data to the credit reference agency and that the notice of default credit reference agency and that the notice of default dated 10th October 2008 was not in accordance with dated 10th October 2008 was not in accordance with the Code. The Respondent was, in that respect, in the Code. The Respondent was, in that respect, in breach. breach. 55 Having breached the Code which, according to the 55 Having breached the Code which, according to the Appellant, Appellant, had mandatory application, the the had mandatory application, Respondent was negligent and the Learned High Respondent was negligent and the Learned High Court Judge was, therefore, on firm ground when he Court Judge was, therefore, on firm ground when he J39 J39 P.319 P.319 found that the Respondent owed the Appellant a found that the Respondent owed the Appellant a duty of care which was breached and resulted in duty of care which was breached and resulted in consequential damages. consequential damages. 56 The Appellant also argued that the Learned High 56 The Appellant also argued that the Learned High Court Judge was on firm ground when he found Court Judge was on firm ground when he found that the Appellant ought not to have been listed on that the Appellant ought not to have been listed on the credit reference agency because the debt was the credit reference agency because the debt was secured by a mortgage. secured by a mortgage. 57 As regards the damages suffered as a consequence 57 As regards the damages suffered as a consequence of the listing, the Appellant reiterated that they were of the listing, the Appellant reiterated that they were letters from Eidan Engineering proved by proved by the letters from Eidan Engineering the Limited, Messrs Smart Dynasty and the report Limited, Messrs Smart Dynasty and the report prepared by the Financial Consultants which it prepared by the Financial Consultants which it relied upon in the High Court. These letters, it relied upon in the High Court. These letters, it argued, were not hearsay evidence because the argued, were not hearsay evidence because the them had Appellant's witness who referred Appellant's witness who referred to them had to personal knowledge of them because they were personal knowledge of them because they were J40 J40 P.320 P.320 addressed to him. In any event, the Respondent addressed to him. In any event, the Respondent could not raise objection to them at trial having could not raise objection to them at trial having missed the opportunity to do so at discovery stage. missed the opportunity to do so at discovery stage. The Learned High Court Judge was, as a result, on The Learned High Court Judge was, as a result, on firm ground in relying upon them in the award of firm ground in relying upon them in the award of damages. damages. the Respondent's duty of 58 On 58 On the issue of the Respondent's duty of issue of the confidentiality, the Appellant conceded that it was confidentiality, the Appellant conceded that it was not absolute but subject to the exceptions in section not absolute but subject to the exceptions in section 50 of the Banking and Financial Services Act. 50 of the Banking and Financial Services Act. That the exceptions were not applicable in this case That the exceptions were not applicable in this case the because Bank of Zambia did not request because Bank of Zambia did not request the Respondent to disclose the Appellant's credit data at Respondent to disclose the Appellant's credit data at the time, therefore, it should have obtained the the time, therefore, it should have obtained the express consent of the Appellant before disclosing it. express consent of the Appellant before disclosing it. 59 Lastly, the Appellant clarified that the the 59 Lastly, the Appellant clarified that K192,500,000.00 awarded as damages for loss of Kl 92,500,000.00 awarded as damages for loss of J41 J41 P.321 P.321 business was indorsed as a liquidated claim which it business was indorsed as a liquidated claim which it was and that the general damages were awarded in was and that the general damages were awarded in line with principles in various precedents. The line with principles in various precedents. The Appellant having proved its case, the Court of Appellant having proved its case, the Court of Appeal should not interfere with the award of Appeal should not interfere with the award of damages. damages. Reasoning by the Court of Appeal and Decision Reasoning by the Court of Appeal and Decision 60 The Court of Appeal considered the arguments 60 The Court of Appeal considered the arguments presented by the parties and the record of appeal. presented by the parties and the record of appeal. Although it did not specifically state so, in dealing Although it did not specifically state so, in dealing with the appeal from the decision of the Learned with the appeal from the decision of the Learned High Court Judge it appeared to have identified four High Court Judge it appeared to have identified four issues, namely: was the Appellant in default in issues, namely: was the Appellant in default in servicing the loan relating to the lease; was the servicing the loan relating to the lease; was the Respondent entitled to refer the Appellant's credit Respondent entitled to refer the Appellant's credit data to the credit reference agency; was the data to the credit reference agency; was the J42 J42 P.322 P.322 reference of the credit data to the credit reference reference of the credit data to the credit reference agency in accordance with the law; a side issue agency in accordance with the law; a side issue arising from issue 3 was, what is the effect of the arising from issue 3 was, what is the effect of the Code, the Directive 2008 and Guidance Note; and, Code, the Directive 2008 and Guidance Note; and, suffer any damage as a did did the Appellant suffer any damage as a the Appellant consequence of the reference to the credit reference consequence of the reference to the credit reference agency. agency. 61 The court tackled all these issues when dealing with 61 The court tackled all these issues when dealing with grounds 1, 3 and 4 of the appeal. grounds 1, 3 and 4 of the appeal. 62 In relation to the first issue, on default, the Court In relation to the first issue, on default, the Court reviewed the documentary evidence which was in reviewed the documentary evidence which was in the form of an exchange of letters between the two the form of an exchange of letters between the two parties from 10th October 2008 to 13th November parties from 10th October 2008 to 13th November 2008. This communication in the Court's view 2008. This communication in the Court's view the revealed notification by the Respondent revealed notification by the Respondent to the to Appellant that it was in default which the Appellant Appellant that it was in default which the Appellant acknowledged and undertook to remedy. The Court acknowledged and undertook to remedy. The Court J43 J43 P.323 P.323 there was communication also observed also observed that there was communication that between both the Appellant and Respondent and between both the Appellant and Respondent and Bank of Zambia in which the latter noted that the Bank of Zambia in which the latter noted that the Appellant's default in servicing the facility began Appellant's default in servicing the facility began immediately after the lease was granted and went on immediately after the lease was granted and went on for nine months. Moreover, despite the restructuring for nine months. Moreover, despite the restructuring of the facility, the Appellant still neglected to service of the facility, the Appellant still neglected to service the facility and the initial payment made prior to 8 th the facility and the initial payment made prior to 8th June 2009 fell far short of the agreed installments. June 2009 fell far short of the agreed installments. 63 The Court then set out the correspondence from 63 The Court then set out the correspondence from which the Learned High Court Judge arrived at his which the Learned High Court Judge arrived at his the decision and concluded decision and concluded that it revealed the revealed that it following: the Appellant had fallen into arrears by following: the Appellant had fallen into arrears by 20th August 2008 and despite assurances that it 20th August 2008 and despite assurances that it would settle the arrears by end of September 2008, would settle the arrears by end of September 2008, it failed to do so because its debtors did not settle it failed to do so because its debtors did not settle their indebtedness to it; by 11 th November, 2008 the their indebtedness to it; by 11th November, 2008 the J44 J44 P.324 P.324 Appellant was aware that it was performing below Appellant was aware that it was performing below the expectations of the Respondent or in other the expectations of the Respondent or in other words, its performance was dented; there was an words, its performance was dented; there was an admission by the Appellant to Bank of Zambia that admission by the Appellant to Bank of Zambia that it did not service the loans after the lease was it did not service the loans after the lease was granted as there was no real need to do so because, granted as there was no real need to do so because, in its opinion, the overdraft account from which the in its opinion, the overdraft account from which the payments were being drawn was not in excess; and, payments were being drawn was not in excess; and, in response to an indication by the Respondent in in response to an indication by the Respondent in respect of facilities which were not being serviced, respect of facilities which were not being serviced, the Appellant did not dispute owing the sums of the Appellant did not dispute owing the sums of alleging USD9 l 7,829. l 9 USD917,829.19 and USD544,403.30, alleging and USD544,403.30, however, that it signed the restructured facility however, that it signed the restructured facility under duress. under duress. 64 The Court concluded that the Learned High Court 64 The Court concluded that the Learned High Court Judge overlooked evidence before him which Judge overlooked evidence before him which J45 J45 P.325 P.325 indicated that the Appellant was 1n default of indicated that the Appellant was in default of servicing the facilities. servicing the facilities. 65 The position taken by the court was that by 31 st 65 The position taken by the court was that by 31st October 2008, the Appellant was delinquent and as October 2008, the Appellant was delinquent and as such, there was no negligence on the part of the such, there was no negligence on the part of the Respondent when it classified it as such. Stemming Respondent when it classified it as such. Stemming from this, the Court rejected the finding by the from this, the Court rejected the finding by the Learned High Court Judge that the cause of the Learned High Court Judge that the cause of the Appellant's default was an error in the Respondent's Appellant's default was an error in the Respondent's system and agreed with the argument by the system and agreed with the argument by the Respondent that the finding was perverse, thereby Respondent that the finding was perverse, thereby opening the door to the Court to interfere with it. opening the door to the Court to interfere with it. 66 The Court was of the opinion that the Learned High 66 The Court was of the opinion that the Learned High Court Judge relied heavily on the letter of 23rd April Court Judge relied heavily on the letter of 23rd April 2009, which it clearly misconstrued, because it 2009, which it clearly misconstrued, because it stated that after rectification of the anomaly in the stated that after rectification of the anomaly in the system the arrears on the lease still stood at system the arrears on the lease still stood at J46 J46 P.326 P.326 the USD80,000.00. This amount, according USD80,000.00. This amount, according to the to Court, represented five unpaid installments on the Court, represented five unpaid installments on the lease. It also rejected arguments to the contrary by lease. It also rejected arguments to the contrary by counsel for the Appellant which alleged that the counsel for the Appellant which alleged that the Appellant was not in default because the over draft Appellant was not in default because the over draft and de bit order were cancelled on 23 rd April 2009. and debit order were cancelled on 23rd April 2009. 67 In regard to the finding by the Learned High Court In regard to the finding by the Learned High Court Judge that since the debt was fully secured by a Judge that since the debt was fully secured by a legal mortgage the Appellant ought not to have been legal mortgage the Appellant ought not to have been listed on the credit reference agency, the Court held listed on the credit reference agency, the Court held that there was no provision to that effect in the that there was no provision to that effect in the Code. To the contrary, clause 2.5.3.3 of the Code Code. To the contrary, clause 2.5.3.3 of the Code authorized the provision of account data to the authorized the provision of account data to the credit reference agency relating to a mortgage loan credit reference agency relating to a mortgage loan where a current material default exists. The same where a current material default exists. The same Code defines material default as being a default in Code defines material default as being a default in payment for a period in excess of sixty days. Given payment for a period in excess of sixty days. Given J47 J47 P.327 P.327 the foregoing, the Court found that the holding by the foregoing, the Court found that the holding by the Learned High Court Judge ,:vas a misdirection. the Learned High Court Judge was a misdirection. the Respondent's 68 The Court also agreed with 68 The Court also agreed with the Respondent's argument that the date of delinquency was different argument that the date of delinquency was different from that of listing, as was evident from the listing from that of listing, as was evident from the listing report. The former date was 31 st October 2008, while report. The former date was 31st October 2008, while the latter was 8 th June 2009. Further, the credit the latter was 8th June 2009. Further, the credit the credit reference agency was not report report to the credit reference agency was not to confined to the lease facility but extended to other confined to the lease facility but extended to other loans which the Appellant had with the Respondent. loans which the Appellant had with the Respondent. 69 In regard to the Appellant's contention that the In regard to the Appellant's contention that the burden of proving that it was in arrears rested with burden of proving that it was in arrears rested with the Respondent, the Court held to the contrary. Its the Respondent, the Court held to the contrary. Its opinion was that since it was the Appellant asserting opinion was that since it was the Appellant asserting that it was negligently listed as a delinquent debtor that it was negligently listed as a delinquent debtor despite acknowledgment by the Respondent that the despite acknowledgment by the Respondent that the arrears were due to an error in the Respondent's arrears were due to an error in the Respondent's J48 J48 P.328 P.328 system, it bore the burden of proving its contention. system, it bore the burden of proving its contention. The Court noted that the Appellant relied on the The Court noted that the Appellant relied on the letter of 23 rd April 2009 to prove the contention letter of 23rd April 2009 to prove the contention despite the fact that the letter also stated that the despite the fact that the letter also stated that the Appellant was in arrears of five installments. Appellant was in arrears of five installments. 70 In reference to the contention that the matter was In reference to the contention that the matter was referred to arbitration and the Respondent awarded referred to arbitration and the Respondent awarded the sum of K7,353,850.49, the Court accepted the the sum of K7,353,850.49, the Court accepted the Respondent's argument that the Learned High Court Respondent's argument that the Learned High Court Judge should not have ignored the fact that the Judge should not have ignored the fact that the Appellant conceded to the arbitration. It noted that Appellant conceded to the arbitration. It noted that the law is that an arbitral award is binding on the the law is that an arbitral award is binding on the parties to the reference, and everyone who, by parties to the reference, and everyone who, by the claiming through or under the parties claiming through or under the parties to the to reference, are privy to the reference. The Court reference, are privy to the reference. The Court referred to A Practical Approach to Arbitration referred to A Practical Approach to Arbitration Law by, Andrew and Keren Tweedle. Law by, Andrew and Keren Tweedie. J49 J49 P.329 P.329 In relation to the second and third issues of whether In relation to the second and third issues of whether the Respondent was entitled to refer the Appellant's the Respondent was entitled to refer the Appellant's credit data to the credit reference agency and credit data to the credit reference agency and whether it was done in accordance with the law, the whether it was done in accordance with the law, the Court initially set out the genesis of the Code; the Court initially set out the genesis of the Code; the obligations of the Respondent as credit provider to obligations of the Respondent as credit provider to the Appellant as its customer; and, the rights of the the Appellant as its customer; and, the rights of the Appellant. It then discussed the effect of the Code, Appellant. It then discussed the effect of the Code, pre and post the Directive 2008. pre and post the Directive 2008. 72 According to the Court, prior to the issuance of the According to the Court, prior to the issuance of the Directive 2008 by Bank of Zambia, a credit provider Directive 2008 by Bank of Zambia, a credit provider was obliged to obtain consent from the customer was obliged to obtain consent from the customer to referring its credit data to the credit prior prior to referring its credit data to the credit reference agency. It also took the view that since the reference agency. It also took the view that since the the Respondent was Appellant was Appellant was in default, the Respondent was in default, entitled, subject to consent, to refer its data to the entitled, subject to consent, to refer its data to the credit reference agency. credit reference agency. J50 JSO P.330 P.330 73 In dealing with the issue as to whether or not the In dealing with the issue as to whether or not the Appellant gave consent to its referral of its credit Appellant gave consent to its referral of its credit data to the credit reference bureau, the Court data to the credit reference bureau, the Court dismissed the Respondent's contention that the dismissed the Respondent's contention that the consent was contained in the facility letter dated consent was contained in the facility letter dated 18th September 2007. The basis upon which it did 18th September 2007. The basis upon which it did so was that: the facility letter related to a general so was that: the facility letter related to a general sum of short short term banking facility in the sum of term banking facility 1n the USD450,000.00; although signed on behalf of the USD450,000.00; although signed on behalf of the Respondent and initialed at every page, it was not Respondent and initialed at every page, it was not signify signed on behalf of signed on behalf of the Appellant to signify the Appellant to acceptance of the terms and conditions; the identity acceptance of the terms and conditions; the identity of the persons who initialed the document was not of the persons who initialed the document was not addressed by the Learned High Court Judge; and, addressed by the Learned High Court Judge; and, there was uncertainty as to whether or not the there was uncertainty as to whether or not the Appellant received the loan in respect of which the Appellant received the loan in respect of which the facility letter related. It concluded that at the stage facility letter related. It concluded that at the stage J51 JSl P.331 P.331 the facility letter was generated, the Appellant had the facility letter was generated, the Appellant had not consented to its credit data being disclosed to not consented to its credit data being disclosed to the credit reference agency. the credit reference agency. the 74 The Court was also not persuaded by 74 The Court was also not persuaded by the Respondent's argument that given the size of the Respondent's argument that given the size of the Respondent it is inconceivable to assume that it Respondent it is inconceivable to assume that it on does does not have terms and conditions on conditions terms have and not confidentiality, and as such, the terms should be confidentiality, and as such, the terms should be implied into the lease agreement. In rejecting the implied into the lease agreement. In rejecting the argument, the Court pointed out that whether or not argument, the Court pointed out that whether or not a term will be implied in a contract depends on the a term will be implied in a contract depends on the intentions of the parties. That intention will be intentions of the parties. That intention will be discerned from the words of the agreement and the discerned from the words of the agreement and the surrounding circumstances. surrounding circumstances. 75 the Court took the view that the In addition, In addition, the Court took the view that the attention of the Learned High Court Judge was not attention of the Learned High Court Judge was not drawn to any terms that could properly be implied drawn to any terms that could properly be implied J52 J52 P.332 P.332 into the banker and customer relationship which into the banker and customer relationship which existed between the parties. It also found that the existed between the parties. It also found that the Respondent made no effort whatsoever to show that Respondent made no effort whatsoever to show that despite the fact that the facility letter in issue which despite the fact that the facility letter in issue which contained the general condition was not signed on contained the general condition was not signed on behalf of the Appellant, the other facilities upon behalf of the Appellant, the other facilities upon which credit was availed to the Appellant were on which credit was availed to the Appellant were on those terms. In the absence of such evidence, the those terms. In the absence of such evidence, the Learned High Court Judge could not imply the Learned High Court Judge could not imply the general conditions into the facility letter in question. general conditions into the facility letter in question. 7 6 the Court issue In determining In determining the issue further, the Court further, the considered the Respondent's argument that a term considered the Respondent's argument that a term permitting negative disclosure could be implied in permitting negative disclosure could be implied in the relationship between a banker and customer. It the relationship between a banker and customer. It held that this was not a proper case to imply such a held that this was not a proper case to imply such a term because, although the facility letter expressly term because, although the facility letter expressly stated that the general conditions would be stated that the general conditions would be J53 J53 P.333 P.333 applicable, the Appellant requested to sign the letter applicable, the Appellant requested to sign the letter in acceptance of those conditions. in acceptance of those conditions. 77 Turning to the Respondent's misgivings about the Turning to the Respondent's misgivings about the Learned High Court Judge's reference to section 50 Learned High Court Judge's reference to section 50 of the Banking and Financial Services Act in of the Banking and Financial Services Act in determining the issue of breach of confidentiality, determining the issue of breach of confidentiality, the Court held the misgivings misplaced because the the Court held the misgivings misplaced because the statement of claim and evidence led in the High statement of claim and evidence led in the High Court revealed that the main issue before the Court revealed that the main issue before the Judge was breach of Learned High Court Learned High Court Judge was breach of confidentiality by the Respondent. The contention confidentiality by the Respondent. The contention being that it had disclosed the Appellant's credit being that it had disclosed the Appellant's credit data to a third party without its consent and when it data to a third party without its consent and when it was not in default. The view taken by the Court was was not in default. The view taken by the Court was that, in any event, section 13 of the High Court Act that, in any event, section 13 of the High Court Act empowers adjudicators of that Court to award a empowers adjudicators of that Court to award a party all such reliefs to which any party may appear party all such reliefs to which any party may appear J54 J54 P.334 P.334 to be entitled in respect of any and every equitable to be entitled in respect of any and every equitable claim or defence presented by them or which would claim or defence presented by them or which would appear in the cause or matter. To this extent, it appear in the cause or matter. To this extent, it found that the Learned High Court Judge was on found that the Learned High Court Judge was on firm ground when he considered the doctrine of firm ground when he considered the doctrine of confidentiality and was entitled to examine the confidentiality and was entitled to examine the inroads or extent extent to which Statute had made inroads or to which Statute had made qualified the duty of confidentiality in the banker qualified the duty of confidentiality in the banker and customer relationship. and customer relationship. 78 In explaining the provisions of section 50 of the In explaining the provisions of section 50 of the Banking and Financial Services Act, the Court Banking and Financial Services Act, the Court took the view that they embody the qualification to took the view that they embody the qualification to the duty of confidentiality articulated in the case of the duty of confidentiality articulated in the case of Tournier v National Provincial and Union Bank Tournier v National Provincial and Union Bank of England6 . It stated the facts of the case before of England6. It stated the facts of the case before setting out the circumstances in which a bank may setting out the circumstances in which a bank may disclose confidential information according to the disclose confidential information according to the J55 JSS P.335 P.335 1s under follows: where disclosure case as case as follows: where disclosure is under compulsion of the law; where there is a duty to the compulsion of the law; where there is a duty to the public to disclose; where the interests of the bank public to disclose; where the interests of the bank require disclosure; and, where the disclosure is require disclosure; and, where the disclosure is made by the express or implied consent of the made by the express or implied consent of the customer. customer. 79 The 79 The Court extended its discussions on on discussions extended Court its confidentiality by restating the genesis of the Code, confidentiality by restating the genesis of the Code, the obligations of a credit provider to a customer the obligations of a credit provider to a customer and the rights of the Appellant as customer by way and the rights of the Appellant as customer by way of reference to clause 2.3 of the Code which states of reference to clause 2.3 of the Code which states as follows; as follows; "Where the credit provider has provided credit to a person and "Where the credit provider has provided credit to a person and the account is subsequently in default, the credit provider the account is subsequently in default, the credit provider shall, as a recommended practice, give to such person within shall, as a recommended practice, give to such person within 30 days from the date of default a written reminder stating 30 days from the date of default a written reminder stating that unless the amount in default is fully repaid before the that unless the amount in default is fully repaid before the expiry of 60 days from the date of the default, the person shall expiry of 60 days from the date of the default, the person shall be liable to have his account data retained by the credit be liable to have his account data retained by the credit reference agency until the expiry of 7 years from the date of reference agency until the expiry of 7 years from the date of J56 J56 P.336 P.336 final settlement of the amount in default or 7 years from the final settlement of the amount in default or 7 years from the date of the person's discharge from bankruptcy as notified to date of the person's discharge from bankruptcy as notified to the CRA whichever is earlier." the CRA whichever is earlier." 80 The Court explained clause 2. 3 as placing an 80 The Court explained clause 2.3 as placing an inform a obligation upon a credit provider obligation upon a credit provider to inform a to customer of the consequences of default within customer of the consequences of default within thirty days of the default and the need to remedy it thirty days of the default and the need to remedy it before the expiry of sixty days from the date of before the expiry of sixty days from the date of default, failing which the credit data would be default, failing which the credit data would be retained by the credit reference agency until the retained by the credit reference agency until the the date of final expiry of seven years expiry of seven years from the date of final from settlement of the amount in default. Further, the settlement of the amount in default. Further, the customer had to be informed that he had the right customer had to be informed that he had the right to instruct the credit provider to move a request to to instruct the credit provider to move a request to the credit reference agency to delete any credit data the credit reference agency to delete any credit data relating to the terminated account after seven years relating to the terminated account after seven years of termination of the account by full repayment, as of termination of the account by full repayment, as J57 J57 P.337 P.337 long as the customer would not have made material long as the customer would not have made material default within that period of seven years. default within that period of seven years. 81 The Court considered the letter of 10th October 2008 81 The Court considered the letter of 10th October 2008 from the Respondent to the Appellant warning the from the Respondent to the Appellant warning the latter that if the arrears were not paid by 30th latter that if the arrears were not paid by 30th October 2008, it would classify its facility as non October 2008, it would classify its facility as non performing, in the light of the explanation given of performing, in the light of the explanation given of clause 2.3, and agreed with the Learned High Court clause 2.3, and agreed with the Learned High Court the Judge Judge that the letter fell far short of the far short of letter that the fell requirements of clause 2.3 and that it did not refer requirements of clause 2.3 and that it did not refer to the credit reference agency. It, however, noted to the credit reference agency. It, however, noted that the practice prescribed under clause 2.3 was that the practice prescribed under clause 2.3 was merely recommended practice, consequently, the merely recommended practice, consequently, the non adherence to the clause was not mandatory. Of non adherence to the clause was not mandatory. Of equal importance, the consequences of default as equal importance, the consequences of default as contained in clause 2.3 were required to be to be contained in clause 2.3 were required stipulated in the written statement availed to a stipulated in the written statement availed to a J58 J58 P.338 P.338 customer at the time of applying for credit. Such customer at the time of applying for credit. Such impliedly customer would be customer would be taken as having impliedly taken as having consented to his credit data being availed to a credit consented to his credit data being availed to a credit reference agency in case of default, if he still went reference agency in case of default, if he still went ahead and obtained the credit. ahead and obtained the credit. 82 The view taken by the Court was, as a result, that 82 The view taken by the Court was, as a result, that there would be no breach on the part of a credit there would be no breach on the part of a credit provider if it later failed to notify the defaulting provider if it later failed to notify the defaulting customer of the consequences of the default in view customer of the consequences of the default in view of the earlier notification. Hence, the Respondent's of the earlier notification. Hence, the Respondent's to notify the breach did not lie breach did not lie in its failure to notify the in its failure Appellant within thirty day of default that it had to Appellant within thirty day of default that it had to settle its indebtedness within sixty days, failing settle its indebtedness within sixty days, failing ,vhich its credit data would be referred to the credit which its credit data would be referred to the credit reference agency, but rather its failure at inception reference agency, but rather its failure at inception to provide a written statement that the Appellant's to provide a written statement that the Appellant's credit data may be availed to a credit reference credit data may be availed to a credit reference J59 J59 P.339 P.339 agency in the event of default in repaying a facility agency in the event of default in repaying a facility availed to it. availed to it. the 83 The Court summed up by holding 83 The Court summed up by holding that the that Respondent breached the duty of confidentiality Respondent breached the duty of confidentiality owed to the Appellant because there was no express owed to the Appellant because there was no express or implied consent disclosed in the evidence on the or implied consent disclosed in the evidence on the record before it. record before it. 84 In dealing with the position post the Directive 2008, In dealing with the position post the Directive 2008, the the Court began by observing that when the Court began by observing that when the Appellant was availed another facility by letter dated Appellant was availed another facility by letter dated to 20 th November 2009 by 20th November 2009 by the Respondent, to the Respondent, restructure existing debts, it consented to its credit restructure existing debts, it consented to its credit data being listed. The offer of the facility by the data being listed. The offer of the facility by the Respondent was subject to the "general term and Respondent was subject to the "general term and conditions" constituting an integral part of and conditions" constituting an integral part of and indivisible from the facility letter. The offer was indivisible from the facility letter. The offer was accepted by the Appellant appending its authorized accepted by the Appellant appending its authorized J60 J 60 P.340 P.340 it officer's officer's signature under the words where it the words where signature under expressed its pleasure at accepting the offer on the expressed its pleasure at accepting the offer on the terms and conditions contained in the facility letter terms and conditions contained in the facility letter and the attached general conditions. and the attached general conditions. 85 The Court then took judicial notice of the Directive g5 The Court then took judicial notice of the Directive 2008 and noted that it was issued pursuant to the 2008 and noted that it was issued pursuant to the powers vested in the Bank of Zambia by section 125 powers vested in the Bank of Zambia by section 125 of the Banking and Financial Services Act. of the Banking and Financial Services Act. It concluded that when the Directive 2008 came into g6 It concluded that when the Directive 2008 came into force the Respondent was required to submit all force the Respondent was required to submit all the credit credit data, negative or positive, credit data, negative or positive, to the credit to reference agency. That the position was confirmed reference agency. That the position was confirmed by Bank of Zambia in its response to the Appellant's by Bank of Zambia in its response to the Appellant's complaint on the manner the Respondent was complaint on the manner the Respondent was the handling handling its account. Therefore, when the account. Therefore, when its Appellant's facilities were restructured by the the Appellant's restructured by facilities were Respondent, the Respondent was obliged to report Respondent, the Respondent was obliged to report J61 J61 P.341 P.341 the restructured facilities to the credit reference the restructured facilities to the credit reference agency in accordance with the Directive 2008. agency in accordance with the Directive 2008. 87 As regards the last issue as to whether the Appellant 87 As regards the last issue as to whether the Appellant suffered damage, the Court posed the question: suffered damage, the Court posed the question: what was the effect of disclosing the negative data to what was the effect of disclosing the negative data to the credit reference bureau? It took the view that the the credit reference bureau? It took the view that the position of the law is that a bank which gives a position of the law is that a bank which gives a reference without the customer's consent is 1n reference without the customer's consent is in breach of its duty to such customer. It went on to breach of its duty to such customer. It went on to state the views expressed by the learned authors of state the views expressed by the learned authors of Paget's Law of Banking l 3 th edition that, if the Paget's Law of Banking 13th edition that, if the reference is accurate, it is difficult to see what reference is accurate, it is difficult to see what the customer will suffer as a foreseeable foreseeable loss the customer will suffer as a loss consequence of giving of the reference. For example, consequence of giving of the reference. For example, the loss of a transaction between the customer and the loss of a transaction between the customer and the third party to whom the reference is given, but the third party to whom the reference is given, but the bank's, refusal to give a reference (because the the bank's, refusal to give a reference (because the J62 J62 P.342 P.342 customer does not consent), would probably have customer does not consent), would probably have caused the same loss. If so, the customer would caused the same loss. If so, the customer would have suffered loss in any event. have suffered loss in any event. 88 In addition, the Court referred to Toulson R. G. and In addition, the Court referred to Toulson R. G. and Phipps CM, Confidentiality, 2 nd edition, whose Phipps CM, Confidentiality, 2nd edition, whose view was that the only case where particular view was that the only case where particular damages would probably be easily recoverable is damages would probably be easily recoverable is the data provided by the bank proves where where the data provided by the bank proves inaccurate. In such a case, the customer will also inaccurate. In such a case, the customer will also have a concurrent claim based upon the breach of have a concurrent claim based upon the breach of the duty of care and skill. the duty of care and skill. the 89 The Court summarized the background 89 The Court summarized the background to the to matter in relation to the foregoing common law matter in relation to the foregoing common law principles as follows: the credit data provided to the principles as follows: the credit data provided to the credit reference agency by the Respondent on the credit reference agency by the Respondent on the Appellant was accurate; and, the negative credit Appellant was accurate; and, the negative credit data was only accessed by banks and other financial data was only accessed by banks and other financial J63 J63 P.343 P.343 the institutions after November 2009, when institutions after November 2009, when the Appellant's credit data, both positive and negative, Appellant's credit data, both positive and negative, was as a matter of law required to be availed to the was as a matter of law required to be availed to the agency. It agreed with Ross Granton's Principles of agency. It agreed with Ross Granton's Principles of Banking Law that, information which is common Banking Law that, information which is common the duty of subject knowledge knowledge is not subject to the duty of not to 1s confidentiality. confidentiality. 90 Further, the Court took the view that the Directive 90 Further, the Court took the view that the Directive 2008 having abrogated the common law duty of 2008 having abrogated the common law duty of confidentiality and thereby rendered the credit data confidentiality and thereby rendered the credit data of a bank's customer accessible to other financial of a bank's customer accessible to other financial providers, an action for breach of confidentiality was providers, an action for breach of confidentiality was not sustainable. The Court also found that since the not sustainable. The Court also found that since the negative data disclosed before the Directive 2008 negative data disclosed before the Directive 2008 was accurate, it could not fathom what damage was was accurate, it could not fathom what damage was inflicted on the Appellant by the disclosure. inflicted on the Appellant by the disclosure. I • • J64 J 64 P.344 P.344 91 The Court concluded that although the Respondent 91 The Court concluded that although the Respondent breached the duty of confidentiality prior to the breached the duty of confidentiality prior to the facilities being restructured and the issuance of the facilities being restructured and the issuance of the Directive 2008 making it mandatory to report all Directive 2008 making it mandatory to report all credit data, no damage can be said to have been credit data, no damage can be said to have been suffered. Besides, there was no evidence that the suffered. Besides, there was no evidence that the Appellant was denied funding by any would-be Appellant was denied funding by any would-be financiers in the period before the Directive 2008 financiers in the period before the Directive 2008 and restructuring of the facilities in November 2009. and restructuring of the facilities in November 2009. 92 Consequently, the Court found that the Appellant 92 Consequently, the Court found that the Appellant was only entitled to nominal damages, predicated on was only entitled to nominal damages, predicated on the principle that where breach of contract 1s the principle that where breach of contract is proved, but no actual damages are proved, a proved, but no actual damages are proved, a claimant is entitled to nominal damages. It referred claimant is entitled to nominal damages. It referred to Chitty on Contracts, General Principles, Vol. 1, to Chitty on Contracts, General Principles, Vol. 1, 13th edition. 13th edition. J65 J65 P.345 P.345 93 Whilst the Court was dealing with the mandatory 93 Whilst the Court was dealing with the mandatory effect of the Directive 2008, it also considered the effect of the Directive 2008, it also considered the order by the learned High Court Judge directing the order by the learned High Court Judge directing the delisting of the Appellant from the credit reference delisting of the Appellant from the credit reference the agency. agency. It agreed with the contention by the the contention by It agreed with Respondent that the order was a misdirection Respondent that the order was a misdirection because of the mandatory requirement that all because of the mandatory requirement that all credit facilities availed after 10th December 2008 be credit facilities availed after 10th December 2008 be facilities listed. The Appellant having had listed. The Appellant having had its facilities its restructured after December 2008, same were liable restructured after December 2008, same were liable to be listed and cannot be delisted. to be listed and cannot be delisted. 94 Turning back to the nominal damages awarded to 94 Turning back to the nominal damages awarded to the Appellant, the Court justified it by defining what the Appellant, the Court justified it by defining what constitutes nominal damages by reference to Mc constitutes nominal damages by reference to Me Gregor on Damages, 18th edition quoting Lord Gregor on Damages, 18th edition quoting Lord Hals bury in The Mediana7 . It stated that the Halsbury in The Mediana7. It stated that the J66 J66 P.346 P.346 phrase is a technical one which means that you phrase is a technical one which means that you have negatived anything like real damage, but that have negatived anything like real damage, but that you are affirming by your nominal damages that you are affirming by your nominal damages that there is an infraction of a legal right which, though there is an infraction of a legal right which, though it gives no right to any real damages at all, yet gives it gives no right to any real damages at all, yet gives you a right to the verdict or judgment because your you a right to the verdict or judgment because your legal right was infringed. Regard was also had to the legal right was infringed. Regard was also had to the in the case of Beaument v decision bv Maule J decision by Maule J in the case of Beaument v .., Geatheads. Geathead8. 95 The Court, accordingly, awarded the Appellant the 95 The Court, accordingly, awarded the Appellant the sum of KS,000.00 as nominal damages. In doing so, sum of K5,000.00 as nominal damages. In doing so, it set aside the award by the Learned High Court it set aside the award by the Learned High Court Judge of K192,500,000.00 and all the other reliefs Judge of Kl 92,500,000.00 and all the other reliefs granted. The award was to attract interest at the granted. The award was to attract interest at the short term deposit rate from date of judgment and short term deposit rate from date of judgment and thereafter, at the current bank lending rate till full thereafter, at the current bank lending rate till full settlement. It also reversed the award of costs to the settlement. It also reversed the award of costs to the J67 J67 P.347 P.347 Appellant in the High Court and ordered that each Appellant in the High Court and ordered that each the party bears party bears its own costs and awarded the its own costs and awarded Respondent the costs of the appeal. Finally, it Respondent the costs of the appeal. Finally, it granted leave to appeal to this Court. granted leave to appeal to this Court. 96 The Court did not find it necessary to consider the 96 The Court did not find it necessary to consider the other grounds of appeal in view of its decision which other grounds of appeal in view of its decision which it stated rendered their consideration academic. It it stated rendered their consideration academic. It the only considered ground 5 by addressing only considered ground 5 by addressing the admissibility of the letters from ECO Bank and admissibility of the letters from ECO Bank and Dynasty in view of the hearsay rule. We do not feel Dynasty in view of the hearsay rule. We do not feel compelled to state the opinion of the Court as it is compelled to state the opinion of the Court as it is not the subject of this appeal. not the subject of this appeal. The grounds of appeal to this Court The grounds of appeal to this Court 97 Arising from the decision of the Court of Appeal, the 97 Arising from the decision of the Court of Appeal, the is disgruntled and has brought this Appellant Appellant is disgruntled and has brought this appeal advancing four grounds as follow: appeal advancing four grounds as follow: J68 J68 P.348 P.348 1) The court below erred in law and fact and fell in grave 1) The court below erred in law and fact and fell in grave error by failing to properly address and evaluate the error by failing to properly address and evaluate the application of the Banking and Financial Services Act, application of the Banking and Financial Services Act, Credit Data (Privacy) Code, Banking and Financial Credit Data (Privacy) Code, Banking and Financial Services Act (Provision of Credit Data and Utilization of Services Act (Provision of Credit Data and Utilization of Credit Reference Services) Directive, 2008 and Guidance Credit Reference Services) Directive, 2008 and Guidance Note 1 of 2014 - Utilization of Credit Reporting System. Note 1 of 2014 - Utilization of Credit Reporting System. 2) The Court below erred in law and in fact when it held that 2) The Court below erred in law and in fact when it held that the Appellant subsequently consented to being listed on the Appellant subsequently consented to being listed on the Credit Reference Bureau when the finding is not the Credit Reference Bureau when the finding is not supported by the evidence on record neither was it supported by the evidence on record neither was it pleaded nor considered by the trial court. pleaded nor considered by the trial court. 3) 3) The court below misdirected itself and failed to (a) (a) The court below misdirected itself and failed to consider documentary evidence and witness consider documentary evidence and witness testimony as a whole but instead chose to testimony as a whole but instead chose to highlight certain pieces of the evidence in highlight certain pieces of the evidence in isolation and made findings of fact based entirely isolation and made findings of fact based entirely on the said isolated evidence without referring it on the said isolated evidence without referring it to or contrasting it with other evidence on record to or contrasting it with other evidence on record by holding that the Appellant was in default when by holding that the Appellant was in default when there was evidence to support the fact that the there was evidence to support the fact that the Appellant was not in default: Appellant was not in default: The court below erred in law and fact by interfering (b) (b) The court below erred in law and fact by interfering with the findings of fact made by the learned trial with the findings of fact made by the learned trial judge in the High Court; judge in the High Court; The court below fell in grave error by holding that (c) (c) The court below fell in grave error by holding that the reference to the Credit Reference Bureau was the reference to the Credit Reference Bureau was accurate and despite the evidence to the contrary. accurate and despite the evidence to the contrary. J69 J69 4) 4) The court below erred in fact and law when it interfered The court below erred in fact and law when it interfered with the award of damages of the learned trial judge. with the award of damages of the learned trial judge. P.349 P.349 The arguments presented by the parties and decision The arguments presented by the parties and decision by the Court by the Court 98 The parties filed heads of argument which they 98 The parties filed heads of argument which they relied upon at the hearing and also made verbal relied upon at the hearing and also made verbal submissions to augment the heads of argument. We submissions to augment the heads of argument. We have considered the arguments along with the two have considered the arguments along with the two judgments by the learned High Court Judge, and judgments by the learned High Court Judge, and the Court of Appeal and record of appeal. the Court of Appeal and record of appeal. 99 The Appellant's heads of argument at pages 1 to 7 99 The Appellant's heads of argument at pages 1 to 7 set out the background to the appeal which we have set out the background to the appeal which we have ignored because the purpose of heads of argument ignored because the purpose of heads of argument is to guide the Court on a party's legal position and is to guide the Court on a party's legal position and not recite the facts of the case to the Court. not recite the facts of the case to the Court. 100 In relation to ground 1, the Appellant contended 100 In relation to ground 1, the Appellant contended that the Court of Appeal erred both in law and fact that the Court of Appeal erred both in law and fact in the interpretation of the application of the in the interpretation of the application of the J70 J70 P.350 P.350 Banking and Financial Services Act, Directive Banking and Financial Services Act, Directive 2008 and Guidance Note. Counsel restated the 2008 and Guidance Note. Counsel restated the interpretation given by the Court of Appeal of the interpretation given by the Court of Appeal of the foregoing documents and set out the provisions of foregoing documents and set out the provisions of clause 2 of the Code. They argued that the clause clause 2 of the Code. They argued that the clause makes provision for two aspects. Firstly, clause 2.1 makes provision for two aspects. Firstly, clause 2.1 deals with the mandatory requirement of a credit deals with the mandatory requirement of a credit provider at the time of providing credit to a customer provider at the time of providing credit to a customer to give a written statement to such customer of the to give a written statement to such customer of the consequences of default and failure to remedy the consequences of default and failure to remedy the default in sixty days in relation to retention of such default in sixty days in relation to retention of such credit data by the credit reference agency until the credit data by the credit reference agency until the the date of final expiry of seven years expiry of seven years from the date of final from settlement of the amount in default. Counsel argued settlement of the amount in default. Counsel argued that there was no written statement as envisaged by that there was no written statement as envisaged by clause 2.1 on the record nor was there evidence clause 2 .1 on the record nor was there evidence before the Learned High Court Judge to show that before the Learned High Court Judge to show that J71 J71 P.351 P.351 the Appellant was explicitly or impliedly informed, to the Appellant was explicitly or impliedly informed, to use counsel's words, to have its credit data supplied use counsel's words, to have its credit data supplied to the credit reference agency. to the credit reference agency. 101 According to counsel, although the Court held that 101 According to counsel, although the Court held that the breach of the Code lay in not availing the said the breach of the Code lay in not availing the said written statement to the Appellant, it nonetheless written statement to the Appellant, it nonetheless failed to categorically state or pronounce itself in the failed to categorically state or pronounce itself in the judgment that the Respondent was in breach by judgment that the Respondent was in breach by to provide such written statement. The failing failing to provide such written statement. The breach, counsel argued, amounts to negligence. breach, counsel argued, amounts to negligence. 102 The second aspect of clause 2 which counsel 102 The second aspect of clause 2 which counsel submitted on was under clause 2.3. Their position submitted on was under clause 2.3. Their position that the notification upon default was a was was that the notification upon default was a mandatory requirement and as such, the Court of mandatory requirement and as such, the Court of Appeal misdirected itself when it held that the Appeal misdirected itself when it held that the clause merely prescribed a recommended practice, clause merely prescribed a recommended practice, adherence to which was not mandatory. Counsel adherence to which was not mandatory. Counsel J72 J72 P.352 P.352 is couched 1n took took the view that Clause 2.3 is couched in the view that Clause 2. 3 mandatory terms because there is the use of the mandatory terms because there is the use of the ,, word "shall" immediately before the words word "shall" immediately before the words "as a as a recommended practice" which the Court relied upon. recommended practice" which the Court relied upon. 103 Further, the mandatory effect of clauses 2 .1 and 2. 3 103 Further, the mandatory effect of clauses 2.1 and 2.3 is evident from the wording in Guidance Note No. 1 is evident from the wording in Guidance Note No.l of 2014, 3 and 4 on the need for the credit provider of 2014, 3 and 4 on the need for the credit provider to notify the customer and consequences of default to notify the customer and consequences of default of adherence to the Code. Counsel agreed with the of adherence to the Code. Counsel agreed with the holding by the Court of Appeal that the letter dated holding by the Court of Appeal that the letter dated 1 Oth October 2008 fell far short of the requirements 10th October 2008 fell far short of the requirements of clause 2.1 and argued that the consequences of of clause 2.1 and argued that the consequences of the breach of the Code by the Respondent amounted the breach of the Code by the Respondent amounted they argued, was to negligence. This position, to negligence. This position, they argued, was affirmed by this court in the case of Stanbic Bank affirmed by this court in the case of Stanbic Bank Zambia Limited v A. S. C. Enterprises Limited9 , Zambia Limited v A. S. C. Enterprises Limited9, Yula Enterprises Limited and Muchabani Atra Yula Enterprises Limited and Muchabani Atra J73 J73 P.353 P.353 (T/A Karama General Dealers1 0 when we held (T/A Karama General Dealers10 when we held that: the code of banking is a binding regulatory that: the code of banking is a binding regulatory mechanism on banks as well as members engaged mechanism on banks as well as members engaged in banking business in Zambia; and, the breach of in banking business in Zambia; and, the breach of the code is, therefore, evidence of negligence. That the code is, therefore, evidence of negligence. That we went further and quoted the learned authors of we went further and quoted the learned authors of Halsbury's Laws of England 4th edition that Halsbury's Laws of England 4th edition that failure by the banks to follow their own regulations failure by the banks to follow their own regulations is evidence of negligence. Thus, the breach by the is evidence of negligence. Thus, the breach by the Respondent amounted to negligence of duty for Respondent amounted to negligence of duty for failure to exercise reasonable care and skill in the failure to exercise reasonable care and skill in the manner the Appellant was reported to the credit manner the Appellant was reported to the credit reference agency, in line with the findings by the reference agency, in line with the findings by the Learned High Court Judge. Learned High Court Judge. 104 Once again counsel referred us to the case of A. S. 104 Once again counsel referred us to the case of A. S. and E. Enterprises Limited9 where we set out the and E. Enterprises Limited9 where we set out the statutory duty of a bank to act in good faith, without statutory duty of a bank to act in good faith, without J74 J74 P.354 P.354 negligence and exercise such care and skill as would negligence and exercise such care and skill as would be exercised by a reasonable banker. be exercised by a reasonable banker. the Directive 2008, 105 Turning 105 Turning their attention to the Directive 2008, their attention to counsel took issue with the interpretation given by counsel took issue with the interpretation given by the Court of Appeal that, upon its coming into effect, the Court of Appeal that, upon its coming into effect, it was mandatory for a credit provider to provide it was mandatory for a credit provider to provide credit data to a credit reference agency, thus doing credit data to a credit reference agency, thus doing the need for prior consent of the away with away with the need for prior consent of the customer. They argued that the Guidance note No.1 customer. They argued that the Guidance note No.l of 2014 emphasizes the application of both the Code of 2014 emphasizes the application of both the Code and Directive 2008 and that all three documents are and Directive 2008 and that all three documents are products of, and issued pursuant to section 125 of products of, and issued pursuant to section 125 of the Banking and Financial Services Act and, the Banking and Financial Services Act and, law. We same therefore, have therefore, have the same force of law. We force of the understood counsel to be saying that the three understood counsel to be saying that the three documents must be read together and all have the documents must be read together and all have the same force of law. They, in this regard, set out the same force of law. They, in this regard, set out the J75 J75 P.355 P.355 sanction for non compliance with the Code as sanction for non compliance with the Code as revealed in the introductory note to the Code and revealed in the introductory note to the Code and the authority under which the Directive 2008 was the authority under which the Directive 2008 was issued as captured by its introductory note. issued as captured by its introductory note. the Court of Appeal that 106 Counsel submitted 106 Counsel submitted that the Court of Appeal erroneously quoted and misapplied the Directive erroneously quoted and misapplied the Directive 2008 piecemeal, and without having regard to the 2008 piecemeal, and without having regard to the Code and Guidance Note No.1 of 2014 when it held Code and Guidance Note No.l of 2014 when it held that following the issuance of the Directive 2008 the that following the issuance of the Directive 2008 the Respondent was obliged to submit the Appellant's Respondent was obliged to submit the Appellant's credit data to the credit reference agency without credit data to the credit reference agency without having regard to the notification procedure set out having regard to the notification procedure set out in the Code. That the provisions of the Directive in the Code. That the provisions of the Directive 2008 cannot oust the provisions of the Code and 2008 cannot oust the provisions of the Code and Banking and Financial Services Act pursuant to Banking and Financial Services Act pursuant to which they were issued. which they were issued. )76 J76 P.356 P.356 107 Counsel also attacked the holding by the Court of 107 Counsel also attacked the holding by the Court of Appeal that the Respondent was obliged to provide Appeal that the Respondent was obliged to provide data to the credit reference bureau following the data to the credit reference bureau following the restructuring of the Appellant's facility in November restructuring of the Appellant's facility in November 2009 in view of the Directive of 2008. 2009 in view of the Directive of 2008. 108 In the viva voce arguments, Mr. M. Mutemwa, SC 108 In the viva voce arguments, Mr. M. Mutemwa, SC essentially restated the arguments in the heads of essentially restated the arguments in the heads of argument, the only departure was the reference to argument, the only departure was the reference to the case of R v Pensions Ombudsman and others, the case of R v Pensions Ombudsman and others, ex parte Legal and General Assurance Society ex parte Legal and General Assurance Society Ltd11 taken when Ltd11 on the approach to be taken when the approach to be on interpreting a banking Code. interpreting a banking Code. 109 In response to the arguments under ground 1, 109 In response to the arguments under ground 1, the counsel counsel for the Respondent argued that the the Respondent argued that for provisions of clause 2 of the Code were not provisions of clause 2 of the Code were not mandatory but merely recommended practice as the mandatory but merely recommended practice as the J77 P.356 P.356 Court of Appeal held. There was, therefore, no Court of Appeal held. There was, therefore, no breach of clause 2 committed by the Respondent. breach of clause 2 committed by the Respondent. Counsel argued that the Code should be interpreted Counsel argued that the Code should be interpreted in the same manner as any statute by giving the in the same manner as any statute by giving the words their literal meaning. He referred us to our words their literal meaning. He referred us to our the case of Edith Tshabalala v decision decision in the case of Edith Tshabalala v in Attorney General 12 (among other authorities) where Attorney General12 (among other authorities) where we held the fundamental rule of interpreting a we held the fundamental rule of interpreting a statute to be that it should be construed to the statute to be that it should be construed to the intent expressed by Parliament which means that intent expressed by Parliament which means that the literal and grammatical meaning will prevail the literal and grammatical meaning will prevail where there is nothing to indicate or suggest that where there is nothing to indicate or suggest that the language should be understood in any other the language should be understood in any other special sense. special sense. 11 O Counsel quoted at length the opinion by Sakala CJ 110 Counsel quoted at length the opinion by Sakala CJ ( as he then was) on the meaning of the word (as he then was) on the meaning of the word 'recommendation' in the case of The Minister of 'recommendation' in the case of The Minister of J78 J78 P.357 P.357 v Fanwell Information and Broadcasting Information and Broadcasting v Fanwell Chembo and Others13 that it is a "suggestion" to Chembo and Others13 that it is a "suggestion" to someone on what to do and that one has the option someone on what to do and that one has the option to follow or ignore such suggestion. They argued to follow or ignore such suggestion. They argued that the use of the word "shall" in clause 2.3 was not that the use of the word "shall" in clause 2.3 was not conclusive because, and quoting from our decision conclusive because, and quoting from our decision 1n Attorney General v Million Juma 14 , no in Attorney General v Million Juma14, no universal rule can be laid down for the construction universal rule can be laid down for the construction of Statutes as to whether mandatory enactments of Statutes as to whether mandatory enactments should be considered as only directory with an should be considered as only directory with an implied nullification for disobedience. It is the duty implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole of the legislature by carefully attending to the whole scope of the Statute to be construed. scope of the Statute to be construed. Ill Concluding arguments under ground 1, counsel 111 Concluding arguments under ground 1, counsel agreed with the Appellant's counsel that a breach of agreed with the Appellant's counsel that a breach of the Code amounts to unsafe and unsound practice the Code amounts to unsafe and unsound practice J79 J79 .358 .358 which could attract supervisory action by Bank of which could attract supervisory action by Bank of in accordance with section 77 of the Zambia Zambia in accordance with section 77 of the Banking and Financial Services Act. Therefore, Banking and Financial Services Act. Therefore, the since no such action was since no such action was taken against the taken against Respondent, there was no breach of the Code by the Respondent, there was no breach of the Code by the Respondent. Respondent. 112 The first limb of ground 1 contends that the Court of 112 The first limb of ground 1 contends that the Court of Appeal failed to pronounce itself on the breach Appeal failed to pronounce itself on the breach committed by the Respondent by failing to comply committed by the Respondent by failing to comply with clause 2.1 of the Code. We must state from the with clause 2.1 of the Code. We must state from the outset that we find this contention strange in view of outset that we find this contention strange in view of the fact that the Court specifically stated that the the fact that the Court specifically stated that the Respondent's breach lay in the fact that it did not Respondent's breach lay in the fact that it did not provide a written statement to the Appellant at the provide a written statement to the Appellant at the time of availing credit that it may, among other time of availing credit that it may, among other things, refer its credit data to a credit reference things, refer its credit data to a credit reference agency. agency. J80 J80 P.359 P.359 113 Counsel for the Appellant quite rightly observed that 113 Counsel for the Appellant quite rightly observed that the pronouncement is made in the portion of the the pronouncement is made in the portion of the judgment where the Court held that "breach of the judgment where the Court held that "breach of the Code lay in not availing the said written statement to Code lay in not availing the said written statement to the Respondent." We are, as a result, at sea as to the Respondent." We are, as a result, at sea as to what further pronouncement counsel wished the what further pronouncement counsel wished the Court to make to satisfy the Appellant's needs. Of Court to make to satisfy the Appellant's needs. Of equal importance, is the fact that the interpretation equal importance, is the fact that the interpretation given to clause 2 .1 of the Code by the Court is given to clause 2.1 of the Code by the Court is flawless. We must, for purposes of clarity and flawless. We must, for purposes of clarity and completeness, reproduce the clause. completeness, reproduce the clause. "2.1 A credit provider who provides credit data to a CRA or in "2.1 A credit provider who provides credit data to a CRA or in the event of default, to a DCA, shall, on or before collecting the event of default, to a DCA, shall, on or before collecting the credit data, take all reasonably practicable steps to the credit data, take all reasonably practicable steps to provide to such person a written statement setting out clearly provide to such person a written statement setting out clearly the following information. the following information. 2.1.1 that the data may be so supplied to a CRA and/or, in the 2.1.1 that the data may be so supplied to a CRA and/or, in the event of default to a DCA event of default to a DCA J81 J81 P.360 P.360 2.1.2 that the person has the right to be informed, upon 2.1.2 that the person has the right to be informed, upon request, about which items of data are routinely so request, about which items of data are routinely so disclosed, and his right to be provided with further disclosed, and his right to be provided with further information to enable the making of a data access and information to enable the making of a data access and correction request to the relevant CRA or DCA, as the correction request to the relevant CRA or DCA, as the case may be; case may be; 2.1.3 that, in the event of any default in repayment, unless 2.1.3 that, in the event of any default in repayment, unless the amount in default is fully repaid before the expiry of the amount in default is fully repaid before the expiry of 60 days from the date such default occurred, otherwise 60 days from the date such default occurred, otherwise the person shall be liable to have his account data the person shall be liable to have his account data retained by the CRA until the expiry of 7 years from the retained by the CRA until the expiry of 7 years from the date of final settlement of the amount in default; and, date of final settlement of the amount in default; and, where applicable; where applicable; 2.1.4 (where the credit applied for does not involve a mortgage 2.1.4 (where the credit applied for does not involve a mortgage loan) that the person, upon termination of the account loan) that the person, upon termination of the account by full repayment and on condition that there has not by full repayment and on condition that there has not been, within 7 years immediately before account been, within 7 years immediately before account termination, any material default on the account, will termination, any material default on the account, will have the right to instruct the credit provider to make a have the right to instruct the credit provider to make a request to the CRA to delete from its database any request to the CRA to delete from its database any account data relating to the terminated account. account data relating to the terminated account. 114 Our understanding of this clause is that it compels 114 Our understanding of this clause is that it compels a credit provider, prior to or at the time of providing a credit provider, prior to or at the time of providing credit, to inform the customer of the consequences credit, to inform the customer of the consequences J82 J82 P.361 P.361 of obtaining the credit which primarily are that the of obtaining the credit which primarily are that the to a credit customer's data may be provided customer's data may be provided to a credit reference agency or debt collection agency. In the reference agency or debt collection agency. In the latter event if there is default on the part of the latter event if there is default on the part of the customer. In addition, the clause compels a credit customer. In addition, the clause compels a credit provider to reveal to the customer the con ten ts of provider to reveal to the customer the contents of the credit data so provided and advise the customer the credit data so provided and advise the customer of the consequences of default in respect to the of the consequences of default in respect to the period of retention of such data by the credit period of retention of such data by the credit reference agency. reference agency. 115 The rationale for such written notice is that it serves 115 The rationale for such written notice is that it serves as express consent from the customer to the credit as express consent from the customer to the credit provider that its confidential information can be provider that its confidential information can be given to a third party. The Court of Appeal was given to a third party. The Court of Appeal was correct in its interpretation of the clause and gave a correct in its interpretation of the clause and gave a valid demonstration of how such consent is obtained valid demonstration of how such consent is obtained by credit providers when it referred to the text by credit providers when it referred to the text J83 J83 P.362 P.362 Banking Litigation that the written statement is in Banking Litigation that the written statement is in most cases incorporated in the terms and conditions most cases incorporated in the terms and conditions of the borrowing and the customer gives his consent of the borrowing and the customer gives his consent upon accepting the said terms and conditions. upon accepting the said terms and conditions. 116 The Court, also explained in detail the confidential 116 The Court, also explained in detail the confidential nature of the relationship of a banker and customer nature of the relationship of a banker and customer in accordance with section 50 of the Banking and in accordance with section 50 of the Banking and Financial Services Act and the qualifications to Financial Services Act and the qualifications to such confidentiality. These qualifications, it found, such confidentiality. These qualifications, it found, are mirrored by the ratio descidendi in the case of are mirrored by the ratio descidendi in the case of Tournier v National Provincial and Union Bank Tournier v National Provincial and Union Bank of England6 • The explanation was prompted by the of England6. The explanation was prompted by the objection raised by the Respondent that the Learned objection raised by the Respondent that the Learned High Court Judge ought not to have referred to the High Court Judge ought not to have referred to the provisions of section 50 because neither of the provisions of section 50 because neither of the parties referred to it. The Court dismissed the it. The Court dismissed the parties referred to argument for the reasons we have explained in the argument for the reasons we have explained in the J84 J84 P.363 P.363 latter parts of the judgment where the importance of latter parts of the judgment where the importance of the discussion by the Court of Appeal becomes the discussion by the Court of Appeal becomes apparent as we discuss the pleadings and evidence apparent as we discuss the pleadings and evidence deployed in the High Court and the nature of the deployed in the High Court and the nature of the appeal before the Court of Appeal. appeal before the Court of Appeal. 117 We have no doubt that a banker owes a customer a 117 We have no doubt that a banker owes a customer a duty of confidentiality. Paget's Law of Banking duty of confidentiality. Paget's Law of Banking 11 th edition, traces the origins of the law on the duty 11th edition, traces the origins of the law on the duty of confidentiality to the Tournier case where Banks of confidentiality to the Tournier case where Banks W, although not specifically defining it, stated the LJ, although not specifically defining it, stated the duty to be a legal one arising out of the contract of duty to be a legal one arising out of the contract of banker and customer and not a moral one. That it banker and customer and not a moral one. That it does not cease the moment a customer closes his does not cease the moment a customer closes his the account and, "... account and, "... information gained during the information gained during currency of the account remains confidential unless currency of the account remains confidential unless the case released under circumstances bringing released under circumstances bringing the case within one of the classes of qualification ... referred within one of the classes of qualification ... referred J85 J85 P.364 P.364 to." Lastly, it applies whether the customer's account to." Lastly, it applies whether the customer's account is in credit or overdrawn. is in credit or overdrawn. 118 The Court of Appeal concluded its discussion on the 118 The Court of Appeal concluded its discussion on the confidential nature of the relationship between a confidential nature of the relationship between a banker and customer by noting that the Respondent banker and customer by noting that the Respondent did not obtain the Appellant's consent prior to did not obtain the Appellant's consent prior to referring its credit data to the credit reference referring its credit data to the credit reference agency and accordingly held it in breach. agency and accordingly held it in breach. 119 We have difficulty with the pronouncement made by 119 We have difficulty with the pronouncement made by the Court of Appeal in the preceding paragraph the Court of Appeal in the preceding paragraph finding made by the because it arises from a because it arises from a finding made by the Learned High Court Judge after he referred to Learned High Court Judge after he referred to section 50 of the Banking and Financial Services section 50 of the Banking and Financial Services Act of his own motion after creating a new set of Act of his own motion after creating a new set of facts and circumstances resulting in the the facts circumstances resulting and 1n introduction of an extra remedy in favour of the introduction of an extra remedy in favour of the Appellant namely, breach of the duty of Appellant namely, breach of the duty of J86 J86 P.365 P.365 confidentiality. The Court of Appeal justified this confidentiality. The Court of Appeal justified this departure by the Learned High Court Judge by departure by the Learned High Court Judge by holding that he is empowered by virtue of section 13 holding that he is empowered by virtue of section 13 of the High Court Act to grant all such reliefs to of the High Court Act to grant all such reliefs to which any party may appear to be entitled in respect which any party may appear to be entitled in respect of any and every equitable claim or defence properly of any and every equitable claim or defence properly brought by them, or which shall appear in the cause brought by them, or which shall appear in the cause or matter. or matter. 120 This reasoning by the Court of Appeal ignores the 120 This reasoning by the Court of Appeal ignores the fact that, in exercising the powers vested upon it by fact that, in exercising the powers vested upon it by section 13, the High Court must not, of its own section 13, the High Court must not, of its own volition, seek out authorities that create new reliefs volition, seek out authorities that create new reliefs or remedies for one party at the expense of another. or remedies for one party at the expense of another. The power which Section 13 of the High Court Act The power which Section 13 of the High Court Act creates is limited to that of the Court investigating if creates is limited to that of the Court investigating if alternative remedies and reliefs are available from alternative remedies and reliefs are available from the pleadings and evidence deployed before it as the pleadings and evidence deployed before it as J87 J87 P.366 P.366 fresh opposed opposed to suggesting, from a vacuum, fresh from a vacuum, to suggesting, remedies or reliefs. The actions by Learned High remedies or reliefs. The actions by Learned High Court Judge effectively amounted to his stepping Court Judge effectively amounted to his stepping into the arena of the dispute to the disadvantage of into the arena of the dispute to the disadvantage of the Respondent, which we find to be a misdirection the Respondent, which we find to be a misdirection on his part deserving of intervention by the Court of on his part deserving of intervention by the Court of Appeal. Ours is an adversarial court system which Appeal. Ours is an adversarial court system which shackles the judge to the pleadings and evidence shackles the judge to the pleadings and evidence presented before him. He is at large and by virtue of presented before him. He is at large and by virtue of section 13 to grant any relief and remedies coming section 13 to grant any relief and remedies coming out of such pleadings and evidence, whether they out of such pleadings and evidence, whether they are specifically asked for or not, but he is not are specifically asked for or not, but he is not permitted to introduce a remedy or relief from facts permitted to introduce a remedy or relief from facts and circumstances of his own creation and outside and circumstances of his own creation and outside the pleadings and evidence. the pleadings and evidence. 121 For the avoidance of doubt, the Appellant did not 121 For the avoidance of doubt, the Appellant did not plead breach of duty of confidentiality and neither plead breach of duty of confidentiality and neither J88 J88 P.367 P.367 did it deploy any evidence to that effect in the High did it deploy any evidence to that effect in the High Court. Further, the evidence led in the High Court Court. Further, the evidence led in the High Court the duty of did not suggest any breach of did not suggest any breach of the duty of confidentiality on the part of the Respondent. But confidentiality on the part of the Respondent. But the Learned High Court Judge, of his own motion, the Learned High Court Judge, of his own motion, brought in the issue of want of consent by the brought in the issue of want of consent by the Appellant for the referral of its credit data to the Appellant for the referral of its credit data to the credit reference bureau which the Appellant neither credit reference bureau which the Appellant neither pleaded nor alluded to 1n its evidence. This is pleaded nor alluded to in its evidence. This is contained in the portion of the Judge's judgment contained in the portion of the Judge's judgment which states as follows: which states as follows: ’’there is no evidence from the documents before the Court "there is no evidence from the documents before the Court and neither did the Defendant bring it to the attention of the and neither did the Defendant bring it to the attention of the Court that they sought and the Plaintiff had expressly Court that they sought and the Plaintiff had expressly consented to the reference of its confidential information to consented to the reference of its confidential information to the CRA, so as not to be in breach of section SO(i)(a) of the Act. the CRA, so as not to be in breach of section 50(i)(a) of the Act. 122 In the pleadings deployed before the Learned High 122 In the pleadings deployed before the Learned High Court Judge, the grievance which the Appellant Court Judge, the grievance which the Appellant J89 J89 P.368 P.368 presented was that of being listed as a delinquent presented was that of being listed as a delinquent borrower on the credit reference agency and not that borrower on the credit reference agency and not that it was listed without its consent. The basis of the it was listed without its consent. The basis of the it denied being delinquent grievance was grievance was that it denied being delinquent that because it attributed its default to the error in the because it attributed its default to the error in the Respondent's system. Respondent's system. 123 In arriving at the decision we have made in the 123 In arriving at the decision we have made in the preceding paragraph we are alive to the holding in preceding paragraph we are alive to the holding in the English case of Phillips v Copping which was the English case of Phillips v Copping which was relied upon by the Learned High Court Judge when relied upon by the Learned High Court Judge when issue of confidentiality and he he introduced the issue of confidentiality and introduced the Section 50 of the Banking and Financial Services Section 50 of the Banking and Financial Services Act. The case was applied with approval by the Act. The case was applied with approval by the Eastern Caribbean Supreme Court, sitting as a High Eastern Caribbean Supreme Court, sitting as a High Court, in the case of Daphne Alves v The Attorney Court, in the case of Daphne Alves v The Attorney General of the Virgin lslands15 when Hariprashad General of the Virgin Islands15 when Hariprashad - Charles J, held as follows: - Charles J, held as follows: J90 J90 P.369 P.369 "The Court is entitled to take judicial notice of all Acts and "The Court is entitled to take judicial notice of all Acts and subsidiary legislation and they are applied when relevant to subsidiary legislation and they are applied when relevant to the facts and circumstances of the case without the necessity the facts and circumstances of the case without the necessity of being pleaded. of being pleaded. (underlining is our for emphasis only) (underlining is our for emphasis only) We endorse the foregoing holding to the extent that We endorse the foregoing holding to the extent that it expresses the need for such legislation to be it expresses the need for such legislation to be "relevant to the facts and circumstances of the case." "relevant to the facts and circumstances of the case." These facts and circumstances should exist in the These facts and circumstances should exist in the case and not be created by a Judge as was the case case and not be created by a Judge as was the case in this matter. in this matter. 124 We also take the position that when the Learned 124 We also take the position that when the Learned High Court Judge formed his intention to invoke High Court Judge formed his intention to invoke section 50 of the Banking and Financial Services section 50 of the Banking and Financial Services Act and realized it would have an impact on his Act and realized it would have an impact on his decision, and felt compelled to rely upon it, he decision, and felt compelled to rely upon it, he should have invited the parties to address him on it should have invited the parties to address him on it I ' I J91 J91 P.370 P.370 before proceeding to make his determination of the before proceeding to make his determination of the matter on the basis of this provision. matter on the basis of this provision. 125 The misdirection by the Court of Appeal was 125 The misdirection by the Court of Appeal was compounded by the fact that it determined an issue compounded by the fact that it determined an issue upon which the Learned High Court Judge did not upon which the Learned High Court Judge did not make a pronouncement on, despite discussing it. make a pronouncement on, despite discussing it. The judgment of the High Court Judge reveals that The judgment of the High Court Judge reveals that he awarded the Appellant "all the reliefs sought [in he awarded the Appellant "all the reliefs sought [in the pleadings]". These include the pleadings]". These reliefs did not include reliefs did not damages for breach of the duty of confidentiality. damages for breach of the duty of confidentiality. For the reasons we have expressed in the preceding For the reasons we have expressed in the preceding paragraphs, we are unable to sustain the holding by paragraphs, we are unable to sustain the holding by the Court of Appeal which upheld the finding by the the Court of Appeal which upheld the finding by the Learned High Court Judge that the Respondent Learned High Court Judge that the Respondent confidentiality. We, breached breached the duty of confidentiality. We, duty the of accordingly, set aside the said holding. accordingly, set aside the said holding. J92 J92 P.371 P.371 126 Coming to the second limb of ground 1 which 126 Coming to the second limb of ground 1 which contends that the Court of Appeol misinterpreted contends that the Court of Appeal misinterpreted the the provisions of clause 2.3 of the Code, the provisions of clause 2.3 of the Code, the argument here 1s that the provisions of clause 2 .3 argument here is that the provisions of clause 2.3 to the have mandatory application as opposed have mandatory application as opposed to the holding by the Court of Appeal that the position is holding by the Court of Appeal that the position is otherwise as we shall explain shortly. otherwise as we shall explain shortly. 127 Before we determine the contention, it 1s important 127 Before we determine the contention, it is important that we reproduce the clause 2.3. It states as that we reproduce the clause 2.3. It states as follows: follows: "2.3 Where the credit provider has provided credit to a person "2.3 Where the credit provider has provided credit to a person in default, the credit and and the account is subsequently in default, the credit the account is subsequently provider shall, as a recommended practice, give such person provider shall, as a recommended practice, give such person within 30 days from the date of default a written reminder within 30 days from the date of default a written reminder stating that unless the amount in default is fully repaid before stating that unless the amount in default is fully repaid before the person the expiry of 60 days from the date of default, the expiry of 60 days from the date of default, the person shall be liable to have his account data retained by the CRA shall be liable to have his account data retained by the CRA until the expiry of 7 years from the date of final settlement of until the expiry of 7 years from the date of final settlement of the account in default or 7 years from the date of the the account in default or 7 years from the date of the person's discharge from bankruptcy." person's discharge from bankruptcy." I I ' J93 J93 128 The fact that clause 2.3 requires a credit provider to 128 The fact that clause 2.3 requires a credit provider to P.372 P.372 to a give notice within give notice within thirty days of default to a thirty days of default defaulting customer is not in dispute. Neither is the defaulting customer is not in dispute. Neither is the fact that such notice should remind the defaulting fact that such notice should remind the defaulting customer of the need within sixty days of the date of customer of the need within sixty days of the date of default to settle the amount in default in full or else default to settle the amount in default in full or else he would be liable to have his credit data retained he would be liable to have his credit data retained by the credit reference agency until the expiry of 7 by the credit reference agency until the expiry of 7 years from the date of final settlement of the amount years from the date of final settlement of the amount in default or from date of being discharged from in default or from date of being discharged from bankruptcy. bankruptcy. 129 The dispute in the interpretation of clause 2.3 lies in 129 The dispute in the interpretation of clause 2.3 lies in the effect given by the Court of Appeal to the phrase the effect given by the Court of Appeal to the phrase the "as a recommended practice" contained in the "as a recommended practice" contained 1n the clause. The Court held that adherence clause. The Court held that adherence to the to practice set out in clause 2.3 is not mandatory practice set out in clause 2.3 is not mandatory because it is defined as recommended practice. It because it is defined as recommended practice. It J94 J94 P.373 P.373 is a went on went on to say that a recommendation is a recommendation to say that a require suggestion or advice which did not suggestion or advice which did not require mandatory compliance. mandatory compliance. 130 The Court then reminded itself that the matters set 130 The Court then reminded itself that the matters set out in clause 2.3 will have already been brought to out in clause 2.3 will have already been brought to the attention of the concerned person at the time the the attention of the concerned person at the time the written statement was being provided at the time of written statement was being provided at the time of accessing credit, pursuant to clause 2.1. accessing credit, pursuant to clause 2.1. 131 We must admit that we find the holding by the 131 We must admit that we find the holding by the Court of Appeal rather confusing, because 1n one Court of Appeal rather confusing, because in one breathe it finds that the giving of the notice is not breathe it finds that the giving of the notice is not mandatory because clause 2.3 is not couched in mandatory because clause 2.3 is not couched in mandatory terms whilst in another, it attributes it to mandatory terms whilst in another, it attributes it to the fact that the defaulter will have been notified of the fact that the defaulter will have been notified of the consequence of default in the written statement the consequence of default in the written statement at the time of accessing credit. On the facts of this at the time of accessing credit. On the facts of this case, the Respondent did not give a written case, the Respondent did not give a written J95 J95 P.374 P.374 statement to the Respondent at the time it availed it statement to the Respondent at the time it availed it credit. The Court of Appeal should, therefore, not credit. The Court of Appeal should, therefore, not the alternative of a written have considered have considered the alternative of a written statement when it interpreted clause 2.3. statement when it interpreted clause 2.3. 132 Further, while we agree with the Court and indeed 132 Further, while we agree with the Court and indeed counsel for the Respondent that the phrase counsel for the Respondent that the phrase "a "a recommended practice", viewed 1n isolation, 1s a recommended practice", viewed in isolation, is a suggestion or advice, when one looks at the word suggestion or advice, when one looks at the word "shall" that precedes the phrase and, indeed, the "shall" that precedes the phrase and, indeed, the intent and purpose of the Code, one is compelled, as intent and purpose of the Code, one is compelled, as counsel for the Appellant has argued, to conclude counsel for the Appellant has argued, to conclude that the giving of the notice is mandatory. We have that the giving of the notice is mandatory. We have not, as the Court of Appeal did, restricted ourselves not, as the Court of Appeal did, restricted ourselves to looking only at the phrase whose interpretation is to looking only at the phrase whose interpretation is sought because we feel compelled to follow the sought because we feel compelled to follow the reasoning of Lord Penzance, quoted by Doyle CJ in reasoning of Lord Penzance, quoted by Doyle CJ in the case of Attorney General v Chipango 16 , the case ot Attorney General v Chipango16, J96 J96 P.375 P.375 to in the Juma case as presented by referred referred to in the Juma case as presented by the Respondent. Lord Penzance 1s counsel for counsel for the Respondent. Lord Penzance is quoted as stating the fallowing: quoted as stating the following: "I believe as far as any rule is concerned, you cannot safely go "l believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject further than that in each case you must look to the subject matter, consider the importance of the provision that has matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the been disregarded, and the relation of that provision to the general object intended to be secured by the Act;" general object intended to be secured by the Act;" 133 The subject matter of the Code is credit referencing 133 The subject matter of the Code is credit referencing and consequences of default which are closely and consequences of default which are closely linked to clause 2.3 because the retention of the linked to clause 2.3 because the retention of the credit data held by the credit reference agency is credit data held by the credit reference agency is dependent upon the default of a customer. The dependent upon the default of a customer. The analysis leaves us to conclude that it is a mandatory analysis leaves us to conclude that it is a mandatory requirement. requirement. 134 Crucial to our holding is the fact that the word 134 Crucial to our holding is the fact that the word "shall" has been used in the context, as we have "shall" has been used in the context, as we have held in the past, which connotes a mandatory held in the past, which connotes a mandatory requirement. The use of the phrase "a recommended requirement. The use of the phrase "a recommended J97 J97 P.376 P.376 practice" is clearly misplaced and the result of poor practice" is clearly misplaced and the result of poor draftsmanship. draftsmanship. 135 Taking the matter of the notification further and to 135 Taking the matter of the notification further and to justify our holding, we are of the firm view that even justify our holding, we are of the firm view that even where the matters relating to the consequence of where the matters relating to the consequence of default will have been brought to the attention of the default will have been brought to the attention of the defaulting customer in the written statement at the defaulting customer in the written statement at the inception of the borrowing, upon default he still, as inception of the borrowing, upon default he still, as a mandatory requirement, must be given notice of a mandatory requirement, must be given notice of default in terms of clause 2.3. We say so because default in terms of clause 2.3. We say so because such notification puts the allegation of default such notification puts the allegation of default beyond doubt. The need for this is evident in the beyond doubt. The need for this is evident in the dispute in these proceedings which has been raging dispute in these proceedings which has been raging from 2009, and the parties are still poles apart as to from 2009, and the parties are still poles apart as to whether or not the Appellant is in default. Further, whether or not the Appellant is in default. Further, the notification is a necessary evil to the defaulting the notification is a necessary evil to the defaulting customer in view of the repercussions that arise customer in view of the repercussions that arise J98 J98 P.377 P.377 from default. Lastly, the notification serves as a from default. Lastly, the notification serves as a reminder of when time starts running in respect of reminder of when time starts running in respect of fulfilling the requirement to settle the amount in fulfilling the requirement to settle the amount in default in sixty days and the retention period of the default in sixty days and the retention period of the agency. credit data by credit data by the credit reference agency. reference credit the Consequently, our holding here is that the Court of Consequently, our holding here is that the Court of Appeal misdirected itself in its interpretation of Appeal misdirected itself in its interpretation of clause 2.3. clause 2.3. 136 The last contention advanced in ground 1 was that 136 The last contention advanced in ground 1 was that the Directive 2008 which mandated all banks to the Directive 2008 which mandated all banks to report both negative and positive credit data to the report both negative and positive credit data to the credit reference agency did not do away with the credit reference agency did not do away with the mandatory requirements of the giving of the written mandatory requirements of the giving of the written statement on accessing of credit and upon default statement on accessing of credit and upon default as stipulated in the Code. as stipulated in the Code. 137 Before we consider the contention we would like to 137 Before we consider the contention we would like to dispel certain misconceptions harbored by the dispel certain misconceptions harbored by the J99 J99 P.378 P.378 Appellant in respect of the effect of the Directive of Appellant in respect of the effect of the Directive of 2008 as revealed by the arguments advanced by 2008 as revealed by the arguments advanced by counsel. Firstly, the Directive 2008 does not only counsel. Firstly, the Directive 2008 does not only mandate credit providers to provide both negative mandate credit providers to provide both negative and positive credit data but also mandates them to and positive credit data but also mandates them to use the services of a credit reference agency before use the services of a credit reference agency before giving credit to any customer. This is in accordance giving credit to any customer. This is in accordance with the holding by the Court of Appeal and is with the holding by the Court of Appeal and is pursuant to Directive number 4 of the Directive pursuant to Directive number 4 of the Directive 2008 whose purpose is verification by the credit 2008 whose purpose is verification by the credit provider of the financial status of the customer as provider of the financial status of the customer as an intending borrower as revealed by Guidance Note an intending borrower as revealed by Guidance Note No. I of 2014 at number 4 which states, in part, as No.l of 2014 at number 4 which states, in part, as follows: follows: "4) Utilization of the Credit Reporting System "4) Utilization of the Credit Reporting System In accordance with the Banking and Financial Services In accordance with the Banking and Financial Services (Provision of Credit Data and Utilization of Credit Reference (Provision of Credit Data and Utilization of Credit Reference Services) Directives, all credit providers are mandated to - Services) Directives, all credit providers are mandated to - J100 JlOO P.379 P.379 As part of the credit evaluation process, conduct a (i) (i) As part of the credit evaluation process, conduct a search for credit information on the borrower from a search for credit information on the borrower from a credit reference agency ... " credit reference agency ..." 138 The rationale for this is, and we take judicial notice 138 The rationale for this is, and we take judicial notice of the fact that, at the time of issuance of the of the fact that, at the time of issuance of the Directive 2008, the financial sector in Zambia was Directive 2008, the financial sector in Zambia was coming from an era where most banks were coming from an era where most banks were experiencing financial difficulty and others were experiencing financial difficulty and others were collapsing on account of poor credit assessment and collapsing on account of poor credit assessment and lack of an avenue for detecting persistent defaulters. lack of an avenue for detecting persistent defaulters. Bank of Zambia, therefore, moved in and issued the Bank of Zambia, therefore, moved in and issued the the Directives Directives and Guidance Note making the and Guidance Note making submission of, and resort to, a credit reference submission of, and resort to, a credit reference agency mandatory for purposes of protecting the agency mandatory for purposes of protecting the integrity of the banking sector in Zambia. integrity of the banking sector in Zambia. the Appellant's therefore, 139 To 139 To the extent, therefore, that the Appellant's the extent, that contention suggests that the Directive 2008 is contention suggests that the Directive 2008 is JlOl J101 restricted to supply of credit data to a credit restricted to supply of credit data to a credit P.380 P.380 is reference agency by reference agency by the credit provider, it is the credit provider, it misconceived. misconceived. the contention which 140 The second assertion 1n 140 The second assertion in the contention which requires clarification is the one that alleges that the requires clarification is the one that alleges that the Court of Appeal found that the coming into force of Court of Appeal found that the coming into force of the the Directive 2008 did away with both the Directive 2008 did away with both the mandatory requirements of the giving of a written mandatory requirements of the giving of a written statement at the point of giving credit and upon statement at the point of giving credit and upon default pursuant to clause 2 .3 which we discussed default pursuant to clause 2.3 which we discussed earlier. earlier. 141 The finding by the Court was that the effect of the 141 The finding by the Court was that the effect of the Directive 2008 was that it did away with the need Directive 2008 was that it did away with the need for providing a written statement. This is evident for providing a written statement. This is evident from the following paragraphs from the judgment of from the following paragraphs from the judgment of the Court: the Court: J102 J102 P.381 P.381 "The import of this directive is that when it came into force, "The import of this directive is that when it came into force, the [Respondent] was required by Bank of Zambia, to submit the [Respondent] was required by Bank of Zambia, to submit all credit data to the credit reference agency in respect of all credit data to the credit reference agency in respect of credit granted after the directive had been issued." credit granted after the directive had been issued." And And "Therefore, when the [Appellant's] facilities were restructured, "Therefore, when the [Appellant's] facilities were restructured, the [Respondent] was obliged to provide the information to the the [Respondent] was obliged to provide the information to the credit reference agency" credit reference agency" 142 The Court of Appeal, 1n its determination of the 142 The Court of Appeal, in its determination of the effect of the Directive 2008, does not refer to the effect of the Directive 2008, does not refer to the effect of clause 2.3 effect of clause 2.3 143 The contentions raised by the Appellant here are for 143 The contentions raised by the Appellant here are for finding by the Learned High Court Judge that there finding by the Learned High Court Judge that there was a breach of the duty of confidentiality on the was a breach of the duty of confidentiality on the part of the Respondent which was upheld by the part of the Respondent which was upheld by the Court of Appeal. In view of our holding that the Court of Appeal. In view of our holding that the decision of the Court of Appeal cannot stand on this decision of the Court of Appeal cannot stand on this issue, there is no need for us to determine the issue, there is no need for us to determine the J103 J103 P.382 P.382 contention. Be that as it may, We do feel compelled contention. Be that as it may, we do feel compelled to comment on the contention because it has a to comment on the contention because it has a bearing on our determination of ground 2 of the bearing on our determination of ground 2 of the Appeal. The position we have taken is that the Appeal. The position we have taken is that the Directive 2008 has the force of law because it is Directive 2008 has the force of law because it is the Banking and to 125 of issued pursuant issued pursuant to 125 of the Banking and Financial Services Act which states as follows: Financial Services Act which states as follows: "125. The Bank of Zambia shall have power to prescribe "125. The Bank of Zambia shall have power to prescribe such guidelines or other regulatory and publish and publish such guidelines or other regulatory statements as the Bank of Zambia may consider statements as the Bank of Zambia may consider necessary or desirable for the administration or necessary or desirable for the administration or execution of this Act." execution of this Act." 144 The meaning we have given to the foregoing section 144 The meaning we have given to the foregoing section is that it gives power to the Bank of Zambia to issue, is that it gives power to the Bank of Zambia to issue, among other things, directives, such as the Directive among other things, directives, such as the Directive 2008 for purposes of the proper administration and 2008 for purposes of the proper administration and operationalisation of the Act. The effect, therefore, of operationalisation of the Act. The effect, therefore, of the issuance of the directive number 4 of Directive the issuance of the directive number 4 of Directive J104 J104 P.383 P.383 2008 was to invoke the provisions of section S0(l)(c) 2008 was to invoke the provisions of section 50(l)(c) of the Banking and Financial Services Act and of the Banking and Financial Services Act and compel banks as credit providers to resort to and compel banks as credit providers to resort to and It thus did provide credit data to a credit agency. provide credit data to a credit agency. It thus did away with the requirement of providing a written away with the requirement of providing a written statement at the time of accessing credit to a statement at the time of accessing credit to a customer by a credit provider. customer by a credit provider. the preceding 145 The holding we have made 1n 145 The holding we have made in the preceding paragraph does not ignore the provisions of the paragraph does not ignore the provisions of the Code on confidentiality but rather agrees with them. Code on confidentiality but rather agrees with them. Clause 4.1 and 4.2 of the Code state as follows: Clause 4.1 and 4.2 of the Code state as follows: "4.1 For the avoidance of doubt, nothing in Parts 1 to III of "4.1 For the avoidance of doubt, nothing in Parts 1 to III of the Code affects the application of law of confidentiality the Code affects the application of law of confidentiality in relation to credit data. In particular, in a situation in relation to credit data. In particular, in a situation where, under the general law, a credit provider or a CRA where, under the general law, a credit provider or a CRA owes a duty of confidentiality to a person in respect of owes a duty of confidentiality to a person in respect of the credit data relating to such person, none of the the credit data relating to such person, none of the provisions in Parts I to Ill of the Code shall have, or provisions in Parts I to III of the Code shall have, or purport to have, the effect of abrogating, limiting or purport to have, the effect of abrogating, limiting or otherwise modifying such duty under the law general otherwise modifying such duty under the law general law. law. JlOS J105 P.384 P.384 4.2 Without prejudice to the generality of 4.1 above, a credit 4.2 Without prejudice to the generality of 4.1 above, a credit provider shall provide confidential information about the provider shall provide confidential information about the customer in accordance with the provisions of section customer in accordance with the provisions of section 50 of the Act." 50 of the Act." 146 Whilst these prov1s1ons recognize the importance of 146 Whilst these provisions recognize the importance of 4.2 maintaining confidentiality, clause 4.2 maintaining confidentiality, clause acknowledges, like section 50 and the Tournier acknowledges, like section 50 and the Tournier case that it is not absolute. case that it is not absolute. the contention 14 7 Consequent 147 Consequent to the foregoing, the contention foregoing, the to advanced by the Appellant that Directive of 2008 did advanced by the Appellant that Directive of 2008 did not do away with the need to preserve confidentiality not do away with the need to preserve confidentiality the or subordinated section 50 and or subordinated section 50 and ignored the ignored provisions of the Code, is untenable. provisions of the Code, is untenable. 148 This concludes our consideration of ground 1 of the 148 This concludes our consideration of ground 1 of the appeal, which, essentially fails save to the extent we appeal, which, essentially fails save to the extent we have stated earlier on the interpretation given by the have stated earlier on the interpretation given by the Court of Appeal to the phrase "a recommended Court of Appeal to the phrase "a recommended practice." practice." J106 J106 P.385 P.385 149 Turning our attention to ground 2 of the appeal in 149 Turning our attention to ground 2 of the appeal in which the Appellant alleges a misdirection on the which the Appellant alleges a misdirection on the part of the Court of Appeal in holding that the part of the Court of Appeal in holding that the Appellant subsequently consented to being listed on Appellant subsequently consented to being listed on the credit reference bureau, in the light of there the credit reference bureau, in the light of there that effect. The main being no evidence being no evidence to that effect. The main to arguments raised by counsel under this ground arguments raised by counsel under this ground were that although they do not dispute the holding were that although they do not dispute the holding by the Court that the Appellant signed the facility by the Court that the Appellant signed the facility letter dated 20th November 2009, there was no letter dated 20th November 2009, there was no evidence led to show that, indeed there was a term evidence led to show that, indeed there was a term in the general conditions of the borrowing which in the general conditions of the borrowing which permitted the Respondent to submit the Appellant's permitted the Respondent to submit the Appellant's data to a credit reference agency. Mr. M. Mutemwa data to a credit reference agency. Mr. M. Mutemwa that, SC argued, SC argued, in his viva voce arguments that, in his viva voce arguments although the facility letter of 20th November 2009 although the facility letter of 20th November 2009 appears in the record of appeal, the alleged general appears in the record of appeal, the alleged general J107 J107 P.386 P.386 terms and conditions of the borrowing are not terms and conditions of the borrowing are not attached thereto. He argued further that, the issue attached thereto. He argued further that, the issue surrounding the said general terms and conditions surrounding the said general terms and conditions was not pleaded and thus, not considered by the was not pleaded and thus, not considered by the the Court of Appeal trial court, consequently trial court, consequently the Court of Appeal misdirected itself when it considered a matter that misdirected itself when it considered a matter that was not raised before the trial court against the was not raised before the trial court against the spirit of our decisions in the cases of Buchman v spirit of our decisions in the cases of Buchman v The Attorney General17 and Mususu Kalenga The Attorney General17 and Mususu Kalenga Building Ltd and Another v Richman's Money Building Ltd and Another v Richman's Money Lendors ENT18 . Counsel argued further that, in any Lendors ENT18. Counsel argued further that, in any to the event, the general terms and conditions event, the general terms and conditions to the facility letter dated 20 th November, 2009 were not on facility letter dated 20th November, 2009 were not on the record before the Court and indeed the record the record before the Court and indeed the record before us. before us. 150 Concluding arguments on this ground, counsel 150 Concluding arguments on this ground, counsel argued extensively on the effect of the Directive argued extensively on the effect of the Directive J108 J108 P.387 P.387 2008, which we have already dealt with and also the 2008, which we have already dealt with and also the facility letter September of 2007. As regards the facility letter September of 2007. As regards the latter, counsel were emphasizing the fact that it had latter, counsel were emphasizing the fact that it had not been signed by the Appellant and thus not not been signed by the Appellant and thus not enforceable, which was the same holding made by enforceable, which was the same holding made by the Court of Appeal. We have not found it necessary the Court of Appeal. We have not found it necessary to reproduce the arguments on these two points to reproduce the arguments on these two points because the first one has already been dealt with because the first one has already been dealt with while the other is misplaced in view of the holding while the other is misplaced in view of the holding by the Court. by the Court. 151 In response, counsel for the Respondent argued that 151 In response, counsel for the Respondent argued that the Court of Appeal did not base its holding that the Court of Appeal did not base its holding that there was consent given by the Appellant to have its there was consent given by the Appellant to have its credit data referred to the credit reference agency on credit data referred to the credit reference agency on the facility letter of 20 th November 2009, but rather , the facility letter of 20th November 2009, but rather , the fact that post the Directive 2008 it had become the fact that post the Directive 2008 it had become mandatory for credit providers to provide credit data mandatory for credit providers to provide credit data J109 J109 P.388 P.388 to a credit reference agency. They argued further to a credit reference agency. They argued further that the Court took the position that even though that the Court took the position that even though the there was a breach of confidentiality by there was a breach of confidentiality by the Respondent, it failed to demonstrate the damage Respondent, it failed to demonstrate the damage suffered. suffered. 152 Following a query from the Court, Mr. E. Silwamba 152 Following a query from the Court, Mr. E. Silwamba SC conceded that there is no appendix to the facility SC conceded that there is no appendix to the facility the letter of 20th November 2009 containing letter of 20th November 2009 containing the Respondent's general terms and conditions. He Respondent's general terms and conditions. He however, was of the view that the Appellant was however, was of the view that the Appellant was bound by it because it signed confirming that it was bound by it because it signed confirming that it was bound by the general terms and conditions. bound by the general terms and conditions. 153 A perusal of the record of appeal reveals that the 153 A perusal of the record of appeal reveals that the facility letter dated 20th November 2009 is on record facility letter dated 20th November 2009 is on record and was indeed signed by the Appellant. In so doing and was indeed signed by the Appellant. In so doing the Appellant accepted the offer of the facility on the the Appellant accepted the offer of the facility on the "general terms and conditions" allegedly attached to "general terms and conditions" allegedly attached to JllO J110 P.389 P.389 the facility letter as appendix 1. This prompted the the facility letter as appendix 1. This prompted the Court of Appeal to come to the conclusion that the Court of Appeal to come to the conclusion that the Appellant consented that the general terms and Appellant consented that the general terms and conditions would apply to the facility it had with the conditions would apply to the facility it had with the Respondent and consented to its credit data being Respondent and consented to its credit data being given to the credit reference agency. given to the credit reference agency. 154 The difficulty we have with the finding stated in the 154 The difficulty we have with the finding stated in the the offer preceding paragraph 1s preceding paragraph is that, whilst the offer that, whilst contained in the facility letter, from the Respondent contained in the facility letter, from the Respondent refers to general terms and conditions and, likewise, refers to general terms and conditions and, likewise, the acceptance by the Appellant acknowledges them, the acceptance by the Appellant acknowledges them, the said general terms and conditions are not the said general terms and conditions are not attached to the facility letter in both instances that attached to the facility letter in both instances that it appears in the record of appeal. We cannot, it appears in the record of appeal. We cannot, therefore, say with certainty what general terms and therefore, say with certainty what general terms and conditions the parties had in mind, if at all any were conditions the parties had in mind, if at all any were there. there. Jlll Jill P.390 P.390 155 Further, in arnv1ng at the holding, the Court of 155 Further, in arriving at the holding, the Court of Appeal sought to justify its earlier holding that the Appeal sought to justify its earlier holding that the facilities were time Appellant, Appellant, at the time the facilities were the the at restructured, was made aware that its credit data restructured, was made aware that its credit data would be referred to a credit reference agency and would be referred to a credit reference agency and thus consented, waiving the confidentiality rule. thus consented, waiving the confidentiality rule. However, the Court in so doing made no reference to However, the Court in so doing made no reference to the clause to this effect in the general terms and the clause to this effect in the general terms and conditions, the reason for the omission being that conditions, the reason for the omission being that there were no such general terms and conditions to there were no such general terms and conditions to refer to. The holding by the Court, as argued by refer to. The holding by the Court, as argued by counsel for the Appellant, was made in the absence counsel for the Appellant, was made in the absence of any evidence and is, as a result, amenable to of any evidence and is, as a result, amenable to setting aside. setting aside. 156 Curiously, the position taken by the Court was 156 Curiously, the position taken by the Court was made notwithstanding its earlier holding that made notwithstanding its earlier holding that J112 J112 P.391 P.391 although the Appellant had accessed other facilities although the Appellant had accessed other facilities from the Respondent, the terms of such borrowing from the Respondent, the terms of such borrowing trial court. Our were not presented before the were not presented before the trial court. Our understanding of this was that the Court would understanding of this was that the Court would have sought to refer to the "general terms and have sought to refer to the "general terms and conditions" of previous borrowings as being standard conditions" of previous borrowings as being standard terms. It regrettably could not have recourse to such terms. It regrettably could not have recourse to such information because, as it rightly observed, none information because, as it rightly observed, none was available. Be that as it may, the relevance of the was available. Be that as it may, the relevance of the general terms and conditions on the part of the general terms and conditions on the part of the Respondent which was to prove that it had the Respondent which was to prove that it had the Appellant's prior consent to release confidential Appellant's prior consent to release confidential information is rendered redundant by the coming information is rendered redundant by the coming into effect of the Directive 2008 whose consequences into effect of the Directive 2008 whose consequences we have explained earlier. we have explained earlier. 15 7 The success of ground 2 is merely academic because 157 The success of ground 2 is merely academic because of the effect we have ascribed to the Directive 2008. of the effect we have ascribed to the Directive 2008. J113 J113 P.392 P.392 158 This brings us to the penultimate ground of the 158 This brings us to the penultimate ground of the appeal, being ground 3, in which the Appellant appeal, being ground 3, in which the Appellant attacks the holding by the Court of Appeal that the attacks the holding by the Court of Appeal that the Appellant was in default. The Appellant's position is Appellant was in default. The Appellant's position is that the Court erred when it reversed the finding that the Court erred when it reversed the finding made by the Learned High Court Judge that it was made by the Learned High Court Judge that it was not in default. The contention here is that the Court not in default. The contention here is that the Court failed to consider documentary evidence and witness failed to consider documentary evidence and witness statements and merely considered isolated pieces of statements and merely considered isolated pieces of evidence upon which it made its findings. evidence upon which it made its findings. 159 The last contention is that the Court fell 1n grave 159 The last contention is that the Court fell in grave error by holding that the Respondent's provision of error by holding that the Respondent's provision of the Appellant's credit data to the credit reference the Appellant's credit data to the credit reference the bureau was accurate despite evidence bureau was accurate despite evidence to the to contrary. contrary. Jl14 J114 P.393 P.393 the 160 The gist of the argument by counsel for 160 The gist of the argument by counsel for the Appellant was that the Learned High Court Judge Appellant was that the Learned High Court Judge was on firm ground when he held that the issue of was on firm ground when he held that the issue of default on the part of the Appellant only arose in default on the part of the Appellant only arose in October 2008 and not September 2007. In addition, October 2008 and not September 2007. In addition, the cause of the delinquency in the Appellant's the cause of the delinquency in the Appellant's account was due to an error in Respondent's system account was due to an error in Respondent's system the date of 31st October 2008 and, as such, and, as such, the date of 31st October 2008 indicated as the delinquent date by the Respondent indicated as the delinquent date by the Respondent is not a mere coincidence. is not a mere coincidence. 161 Counsel argued further that the Learned High Court 161 Counsel argued further that the Learned High Court Judge was on firm ground when he considered the Judge was on firm ground when he considered the letter of 23 rd April 2009 as an admission of the letter of 23rd April 2009 as an admission of the cause of the default and that the Respondent had cause of the default and that the Respondent had not conducted an accurate investigation as to the not conducted an accurate investigation as to the cause of the default, prior to reporting the Appellant cause of the default, prior to reporting the Appellant JllS J115 P.394 P.394 to the credit reference agency. For this reason, to the credit reference agency. For this reason, counsel argued, the Court made an unbalanced counsel argued, the Court made an unbalanced review, evaluation, scrutiny and analysis of selected review, evaluation, scrutiny and analysis of selected pieces of evidence and ought not to have reversed pieces of evidence and ought not to have reversed the findings by the Learned High Court Judge. To the findings by the Learned High Court Judge. To augment their arguments, counsel referred to the augment their arguments, counsel referred to the evidence of the Appellant's witness during trial on evidence of the Appellant’s witness during trial on the matter. the matter. 162 Counsel advanced their arguments by contending 162 Counsel advanced their arguments by contending that the Appellant's account continued to remain in that the Appellant's account continued to remain in default due to the Respondent's decision to cancel default due to the Respondent's decision to cancel the de bit order as per the letter of 23 rd April 2009. the debit order as per the letter of 23rd April 2009. They also argued that the fact that the Respondent They also argued that the fact that the Respondent recommended the Appellant to standard Chartered recommended the Appellant to standard Chartered Bank "as credit worthy enjoying facilities in seven Bank "as credit worthy enjoying facilities in seven digit figures ... " also confirmed that it was not a digit figures ..." also confirmed that it was not a defaulter. That, the Learned High Court Judge was, defaulter. That, the Learned High Court Judge was, Jl16 J116 P.395 P.395 therefore, on firm ground when he relied on the case therefore, on firm ground when he relied on the case of Hedley Byrne and Co. Limited v Heller and of Hedley Byrne and Co. Limited v Heller and Partners Limited19 quoting from the case of Partners Limited19 quoting from the case of Robinson v National Bank of Scotand20 that there Robinson v National Bank of Scotand20 that there is no legal duty on the replying bank beyond that of is no legal duty on the replying bank beyond that of giving an honest answer. According to counsel, it giving an honest answer. According to counsel, it can only follow that the response given to Standard can only follow that the response given to Standard Chartered Bank was an honest response by the Chartered Bank was an honest response by the Respondent of the Appellant's credit status as it had Respondent of the Appellant's credit status as it had no duty to shield the Appellant. no duty to shield the Appellant. issue, counsel 163 Concluding arguments on 163 Concluding arguments on the issue, counsel the contended that the only bank statements on record contended that the only bank statements on record showing the status of the Appellant's account are showing the status of the Appellant's account are those for the period 2010 to 2014. The Respondent those for the period 2010 to 2014. The Respondent had not produced bank statements for the period in had not produced bank statements for the period in contention and merely relied on the letter of 23rct contention and merely relied on the letter of 23rd April 2009 to prove the default. The absence of the April 2009 to prove the default. The absence of the J117 J117 P.396 P.396 bank statements had prompted the Appellant to bank statements had prompted the Appellant to complain to Bank of Zambia about the banking complain to Bank of Zambia about the banking practice of the Respondent. This, notwithstanding, practice of the Respondent. This, notwithstanding, the Court went on to rely on the letter from Bank of the Court went on to rely on the letter from Bank of Zambia alleging that the lease went into default at Zambia alleging that the lease went into default at inception, the arbitral award and correspondence inception, the arbitral award and correspondence passing between the parties to justify a finding that passing between the parties to justify a finding that the credit reference agency was the report the report to the credit reference agency was to accurate without regard to the evidence which accurate without regard to the evidence which revealed otherwise. revealed otherwise. 164 In the viva voce arguments, Mr. A. Musukwa went to 164 In the viva voce arguments, Mr. A. Musukwa went to great length at demonstrating the discrepancies great length at demonstrating the discrepancies the credit between the information provided between the information provided to the credit to reference agency by the Respondent and the bank reference agency by the Respondent and the bank statements reflecting the status of the Appellant's statements reflecting the status of the Appellant's account. He argued that as at 31st October 2008, account. He argued that as at 31st October 2008, the Appellant was not delinquent because the bank the Appellant was not delinquent because the bank J118 Jll8 P.397 P.397 statements revealed that the installment for that statements revealed that the installment for that month was paid. month was paid. 165 Mr. K. Nchito echoed the arguments by Mr. A. 165 Mr. K. Nchito echoed the arguments by Mr. A. letter of Musukwa and Musukwa and reiterated that the letter of reiterated that the recommendation by the Respondent to the Standard recommendation by the Respondent to the Standard Chartered Bank reinforced the argument that the Chartered Bank reinforced the argument that the the Appellant was not Appellant was not in default. As regards the in default. As regards admission by the Appellant that it was in default, he admission by the Appellant that it was in default, he attributed it to its being misled by the Respondent. attributed it to its being misled by the Respondent. 166 In response, counsel for the Respondent argued that 166 In response, counsel for the Respondent argued that the Court of Appeal was on firm ground when it held the Court of Appeal was on firm ground when it held that the Learned High Court Judge made a perverse that the Learned High Court Judge made a perverse finding of fact in relation to the Appellant being in finding of fact in relation to the Appellant being in default. They referred to the arguments made by the default. They referred to the arguments made by the Respondent in the Court of Appeal which referred to Respondent in the Court of Appeal which referred to correspondence by the Appellant and evidence by its correspondence by the Appellant and evidence by its witness, Clever Mpoha, on the state of its facilities witness, Clever Mpoha, on the state of its facilities Jll9 J119 P.398 P.398 with the Respondent. They argued that there was no with the Respondent. They argued that there was no evidence presented to show that any payment was evidence presented to show that any payment was made towards the sum of USD540,000.00 advanced made towards the sum of USD540,000.00 advanced to the Appellant in 2007 in respect of the lease. to the Appellant in 2007 in respect of the lease. 167 In addition, counsel argued that the system failure 167 In addition, counsel argued that the system failure had nothing to do with the Appellant falling in had nothing to do with the Appellant falling in arrears. They went on to argue that the finding by arrears. They went on to argue that the finding by the Court of Appeal was reinforced by the fact that the Court of Appeal was reinforced by the fact that in its pleadings before the High Court, the Appellant in its pleadings before the High Court, the Appellant conceded to the arbitration and confirmed that an conceded to the arbitration and confirmed that an award was made against it. They then set out a award was made against it. They then set out a plethora of authorities which explain the instances plethora of authorities which explain the instances when an appellate court will reverse findings of fact when an appellate court will reverse findings of fact by a trial court. by a trial court. 168 In relation to the interpretation given to the letter of 168 In relation to the interpretation given to the letter of 23rd April 2009 by the Learned High Court Judge, 23rd April 2009 by the Learned High Court Judge, counsel submitted that the Judge applied his mind counsel submitted that the Judge applied his mind J120 J120 P.399 P.399 only to one aspect of the letter on the system error only to one aspect of the letter on the system error the the portion which and and ignored the portion which indicated the indicated ignored Appellant being in arrears. The Court of Appeal was, Appellant being in arrears. The Court of Appeal was, therefore, on firm ground when it reversed the therefore, on firm ground when it reversed the findings of fact by the Learned High Court Judge. findings of fact by the Learned High Court Judge. 169 Counsel concluded by interpreting the effect of the 169 Counsel concluded by interpreting the effect of the Directive 2008 and argued that it was mandatory for Directive 2008 and argued that it was mandatory for credit providers to supply credit data to credit credit providers to supply credit data to credit reference agencies and the Respondent was not reference agencies and the Respondent was not wrong in providing the credit data. wrong in providing the credit data. 170 In the viva voce arguments, Mr. E. Silwamba SC 170 In the viva voce arguments, Mr. E. Silwamba SC restated the arguments in the heads of argument restated the arguments in the heads of argument and emphasized that the Appellant's counsel were and emphasized that the Appellant's counsel were interpreting the letter of 23rd April 2003 selectively. interpreting the letter of 23rd April 2003 selectively. Mrs. D. Tembwe argued that the bank statements Mrs. D. Tembwe argued that the bank statements on the record of appeal revealed that the Appellant's on the record of appeal revealed that the Appellant's J121 J121 P.400 P.400 account was in default for eleven months as at account was in default for eleven months as at October 2008. October 2008. 1 71 The holding by the Court of Appeal that the 171 The holding by the Court of Appeal that the Appellant had defaulted was preceded by an Appellant had defaulted was preceded by an to analysis of various documents which analysis of various documents which led it to led it conclude as follows: conclude as follows: "(The evidence] amply demonstrates that the respondent "[The evidence] amply demonstrates that the respondent Savenda Management Services, had by 20th August 2008 fallen Savenda Management Services, had by 20th August 2008 fallen into arrears on the facilities availed to it by the bank. Savenda into arrears on the facilities availed to it by the bank. Savenda Management Services assured the bank that it would settle all Management Services assured the bank that it would settle all facilities by the end of September 2008. The failure to settle facilities by the end of September 2008. The failure to settle its indebtedness was attributed to the failure by Savenda its indebtedness was attributed to the failure by Savenda their debtors Management Services Management Services debtors to make good their indebtedness to the company. As at 11th November 2008, the indebtedness to the company. As at 11th November 2008, the to make good respondent was aware that its performance regarding the respondent was aware that its performance regarding the own facilities, it had with the bank was "dented," to use its facilities, it had with the bank was "dented," to use its own word. Although the respondent requested for extension of time word. Although the respondent requested for extension of time in which to liquidate the loan in the sum of USDl 70,000.00 it in which to liquidate the loan in the sum of USD170,000.00 it rendered clear that the respondent's performance on the was was rendered clear that the respondent's performance on the facilities it had with the appellant bank was below expectation. facilities it had with the appellant bank was below expectation. The respondent admitted to Bank of Zambia that it did not The respondent admitted to Bank of Zambia that it did not service the loan after the lease had been granted as there was service the loan after the lease had been granted as there was no real need to do so, since the overdraft account, from which no real need to do so, since the overdraft account, from which the payments were being drawn was not in excess." the payments were being drawn was not in excess." J122 J122 P.401 P.401 172 We cannot fault the Court of Appeal for arriving at 172 We cannot fault the Court of Appeal for arriving at it this conclusion this conclusion in view of the documents it the documents in view of considered. Indeed, by letter dated 10th October considered. Indeed, by letter dated 10th October 2008, the Respondent reminded the Appellant that 2008, the Respondent reminded the Appellant that it had, among other things, undertaken in a meeting it had, among other things, undertaken in a meeting of 20 th August 2008, to settle all arrears on the of 20th August 2008, to settle all arrears on the facilities by end of September 2008. By letter of even facilities by end of September 2008. By letter of even date the Appellant responded by acknowledging the date the Appellant responded by acknowledging the delay in settling the arrears and giving the reasons delay in settling the arrears and giving the reasons for the delay. Subsequently, by letters dated 7 th , 11 th for the delay. Subsequently, by letters dated 7th, 11th and 13th November 2008, the Appellant: notified the and 13th November 2008, the Appellant: notified the Respondent of its intention to continue to pursue its Respondent of its intention to continue to pursue its debtors in order to bring the facilities in line; in line; debtors in order to bring the facilities its dented to undertook undertook to strive to improve its dented improve strive to the Respondent; and, made performance with performance with the Respondent; and, made proposals for repayments of the short term loan of proposals for repayments of the short term loan of USDl 70,000.00 after acknowledging that it had had USD 170,000.00 after acknowledging that it had had J123 J123 P.402 P.402 a few challenges in meeting its payments. These a few challenges in meeting its payments. These examples are but a few that are available on the examples are but a few that are available on the record which lead us to conclude that there was no record which lead us to conclude that there was no misdirection on the part of the Court of Appeal when misdirection on the part of the Court of Appeal when it held that the Appellant was in default. Further, it held that the Appellant was in default. Further, the evidence demonstrates that the Appellant's the evidence demonstrates that the Appellant's financial difficulty began well before October 2008 financial difficulty began well before October 2008 and, as such, it was delinquent by 31 st October and, as such, it was delinquent by 31st October 2008. 2008. the argument advanced by 173 We cannot accept 173 We cannot accept the argument advanced by letters of counsel counsel for the Appellant that the letters of the Appellant that the for admission were written by the Appellant because it admission were written by the Appellant because it was misled by the Respondent because if this were was misled by the Respondent because if this were so, it was obliged to retract the letters subsequent to so, it was obliged to retract the letters subsequent to realizing that it was actually not in default. We also realizing that it was actually not in default. We also do not accept the argument that the Appellant's do not accept the argument that the Appellant's witness clarified the context in which the witness clarified the context in which the J124 J124 P.403 P.403 admissions were made. The explanations given by admissions were made. The explanations given by the notes of the the witness, as revealed by the witness, as revealed by the notes of the proceedings in the High Court, do not in any way proceedings in the High Court, do not in any way admissions were negate negate the fact that the admissions were that fact the the unequivocal. unequivocal. 174 The Court of Appeal also alluded to the award of the 174 The Court of Appeal also alluded to the award of the arbitrator as confirming the default on account of arbitrator as confirming the default on account of the Appellant being bound by it. We agree with this the Appellant being bound by it. We agree with this in the light of section 20 of the Arbitration Act on in the light of section 20 of the Arbitration Act on the effect of an arbitral award which is that it "is the effect of an arbitral award which is that it "is final and binding both on the parties and any final and binding both on the parties and any them." The persons claiming persons claiming through or under them." The through or under Appellant cannot, as a result, disassociate itself Appellant cannot, as a result, disassociate itself from the award. from the award. 175 In regard to the letter of 23rd April 2009, we can 175 In regard to the letter of 23rd April 2009, we can only agree with the Court of Appeal that "the judge only agree with the Court of Appeal that "the judge misconstrued the import of the letter." The letter, as misconstrued the import of the letter." The letter, as J125 J125 P.404 P.404 the Court correctly observed, and as argued by the Court correctly observed, and as argued by the Respondent, was, among other counsel for counsel for the Respondent, was, among other things, informing the Appellant that the error in the things, informing the Appellant that the error in the system had been rectified and that, notwithstanding system had been rectified and that, notwithstanding the rectification, the account was still in arrears of the rectification, the account was still in arrears of USD80,050.34. This was a crucial piece of evidence USD80,050.34. This was a crucial piece of evidence which the Learned High Court Judge chose to which the Learned High Court Judge chose to ignore. Moreover, it must be noted that there was ignore. Moreover, it must be noted that there was already a prelude to the letter of 23 rd April 2009 in already a prelude to the letter of 23rd April 2009 in the form of the meeting between the parties in the form of the meeting between the parties in August 2008, and the subsequent correspondence August 2008, and the subsequent correspondence we have referred to of October and November 2008, we have referred to of October and November 2008, which sufficiently proves default as acknowledged which sufficiently proves default as acknowledged by the Appellant which the Learned High Court by the Appellant which the Learned High Court Judge chose to ignore. Judge chose to ignore. 176 Further, the fact that no bank statements were 176 Further, the fact that no bank statements were availed for the period in issue to prove the default, availed for the period in issue to prove the default, J126 J126 P.405 P.405 except after 2010 as argued by counsel for the except after 2010 as argued by counsel for the Appellant, does not change matters. The letter of Appellant, does not change matters. The letter of 23rd April 2009, is sufficient proof of default as it is a 23rd April 2009, is sufficient proof of default as it is a page in the bankers books of the Respondent. The page in the bankers books of the Respondent. The books of a bank are defined by section 2 of the books of a bank are defined by section 2 of the Evidence (Bankers Books) Act as including " ... Evidence (Bankers Books) Act as including "... ledgers, day books, cash books, account books and ledgers, day books, cash books, account books and all other records used in the ordinary business of the all other records used in the ordinary business of the in bank whether such records are bank whether such records are in form or in in farm or microfilm, magnetic tape or any other form of microfilm, magnetic tape or any other form of mechanical or electronic data retrieval mechanism." mechanical or electronic data retrieval mechanism." (Underlining is ours for emphasis only) (Underlining is ours for emphasis only) 177 A letter from a bank, such as the letter dated 23rd 177 A letter from a bank, such as the letter dated 23rd April 2009, is a record used in the ordinary business April 2009, is a record used in the ordinary business of a bank, in this case the Respondent bank. Thus, of a bank, in this case the Respondent bank. Thus, the letter being part of a banker's book can be the letter being part of a banker's book can be J127 J127 P.406 P.406 received, as was the case in this matter, as prima received, as was the case in this matter, as prima f acie evidence of matters and transactions therein facie evidence of matters and transactions therein recorded especially that its production was not recorded especially that its production was not objected to at discovery. This is pursuant to section objected to at discovery. This is pursuant to section 3 of the Evidence (Bankers' Books) Act. We, 3 of the Evidence (Bankers9 Books) Act. We, therefore, cannot fault the Court for accepting the therefore, cannot fault the Court for accepting the letter as evidence of default notwithstanding that no letter as evidence of default notwithstanding that no bank statements were on record for the period in bank statements were on record for the period in issue. issue. 178 We must hasten to add that at no time did the 178 We must hasten to add that at no time did the Appellant question the allegation of it being in Appellant question the allegation of it being in arrears contained in the letter of 23 rd April 2009 or arrears contained in the letter of 23rd April 2009 or request for a verification of the alleged arrears by request for a verification of the alleged arrears by way of a bank statement. The contention by counsel way of a bank statement. The contention by counsel for the Appellant, in this regard, is clearly an for the Appellant, in this regard, is clearly an afterthought. afterthought. J128 J128 P.407 P.407 179 In regard to the contention that by giving a reference 179 In regard to the contention that by giving a reference letter to Standard Chartered Bank, the Respondent letter to Standard Chartered Bank, the Respondent was confirming that the Appellant was not in was confirming that the Appellant was not in default, we find the contention lacking in merit. The default, we find the contention lacking in merit. The letter to Standard Chartered Bank must be read in letter to Standard Chartered Bank must be read in its proper context which is that it confirmed the its proper context which is that it confirmed the credit status of the Appellant with the Respondent credit status of the Appellant with the Respondent as being in seven digits denominated in United as being in seven digits denominated in United States dollars. It ends with a disclaimer that "it is States dollars. It ends with a disclaimer that "it is given without responsibility or guarantee on the part given without responsibility or guarantee on the part of the Bank," which we have understood to mean of the Bank," which we have understood to mean that the Respondent was not guaranteeing its credit that the Respondent was not guaranteeing its credit credit the worthiness. Further, worthiness. Further, the purpose of credit purpose of referencing must be understood in its proper context referencing must be understood in its proper context which is that, and in accordance with the Guidance which is that, and in accordance with the Guidance Note, it should not be used as a tool for "blacklisting" Note, it should not be used as a tool for "blacklisting" J129 J129 P.408 P.408 this customers. The Guidance Note states, customers. The Guidance Note states, in this in (2) Interpretation of Negative respect, under respect, under (2) Interpretation of Negative Credit Reports as follows: "The decision to extend a Credit Reports as follows: "The decision to extend a credit facility to a borrower, whether or not that credit facility to a borrower, whether or not that person has a negative credit report, is the preserve of person has a negative credit report, is the preserve of the credit provider, using credit information held by a the credit provider, using credit information held by a CRA, additional information provided by the borrower CRA, additional information provided by the borrower and its internal proceeds. " and its internal proceeds." 180 Thus, the fact that the Appellant was in default did 180 Thus, the fact that the Appellant was in default did not mean that the Respondent should give a not mean that the Respondent should give a negative recommendation to Standard Chartered negative recommendation to Standard Chartered Its Bank, Bank, thereby locking it out of credit. Its it out of credit. thereby locking responsibility ended, as it did, at stating the credit responsibility ended, as it did, at stating the credit status of the Appellant with it and leaving Standard status of the Appellant with it and leaving Standard Chartered Bank to make an informed decision on Chartered Bank to make an informed decision on the matter. the matter. J130 J130 P.409 P.409 181 We must end by stating that at no time had the 181 We must end by stating that at no time had the Appellant denied being in default as revealed by its Appellant denied being in default as revealed by its pleadings which confirm this and attribute it to the pleadings which confirm this and attribute it to the Respondent's system error. It, however, failed to Respondent's system error. It, however, failed to explain how the system error caused the default. explain how the system error caused the default. 182 To this end the unbalanced assessment of the 182 To this end the unbalanced assessment of the evidence was by the Learned High Court and not the evidence was by the Learned High Court and not the Court of Appeal. Ground 3 of the appeal must Court of Appeal. Ground 3 of the appeal must accordingly fail. accordingly fail. 183 Coming to the last ground, namely ground 4 of the 183 Coming to the last ground, namely ground 4 of the appeal which challenges the interference by the appeal which challenges the interference by the Court of Appeal with the award of damages by the Court of Appeal with the award of damages by the the thrust of the Learned High Court Judge, Learned High Court Judge, the thrust of the contention in this ground questioned the basis upon contention in this ground questioned the basis upon which the Court held that its action for breach of which the Court held that its action for breach of confidentiality (post the Directive 2008) was confidentiality (post the Directive 2008) was J131 J131 P.410 P.410 damages unsustainable unsustainable and its claim for damages claim and for its misconceived. misconceived. 184 The argument by counsel for the Appellant under 184 The argument by counsel for the Appellant under this ground were by and large a repetition of the this ground were by and large a repetition of the arguments advanced under ground 2 of the appeal, arguments advanced under ground 2 of the appeal, except that they expanded the arguments in relation except that they expanded the arguments in relation to the effect of the Directive 2008. The view taken by to the effect of the Directive 2008. The view taken by counsel here, was that the provision of the Directive counsel here, was that the provision of the Directive 2008 cannot override the provisions of section 50 of 2008 cannot override the provisions of section 50 of the Banking and Financial Services Act. the Banking and Financial Services Act. 185 By the above argument, counsels were essentially 185 By the above argument, counsels were essentially saying that a provision of an Act of Parliament such saying that a provision of an Act of Parliament such as section 50 cannot be subordinated to a Directive as section 50 cannot be subordinated to a Directive issued by Bank of Zambia. This position, they issued by Bank of Zambia. This position, they argued, was reinforced by the fact that the common argued, was reinforced by the fact that the common law duty of confidentiality is codified in section 50 of law duty of confidentiality is codified in section 50 of the Banking and Financial Services Act. Taking the Banking and Financial Services Act. Taking Jl32 J132 P.411 P.411 the argument further, counsel submitted that the the argument further, counsel submitted that the need to retain confidentiality is emphasized in the need to retain confidentiality is emphasized in the Code under clause 4 of the Code. In the light of the Code under clause 4 of the Code. In the light of the arguments by counsel, we have reproduced the arguments by counsel, we have reproduced the clause in full in the earlier part of this judgment in clause in full in the earlier part of this judgment in dealing with ground 1 of the Appeal. dealing with ground 1 of the Appeal. issue, counsel 186 Concluding arguments on 186 Concluding arguments on this issue, counsel this submitted that the holding by the court that the submitted that the holding by the court that the coming in to force of the Directive 2008 made the coming into force of the Directive 2008 made the claim for breach of confidentiality unsustainable, claim for breach of confidentiality unsustainable, because it abrogated the common law duty of because it abrogated the common law duty of confidentiality, was a misdirection. confidentiality, was a misdirection. 18 7 On the issue of the claim for damages being 187 On the issue of the claim for damages being misconceived, counsel's arguments suggested that misconceived, counsel's arguments suggested that the Court denied the Appellant the damages claimed the Court denied the Appellant the damages claimed because it was of the view that the Directive 2008 because it was of the view that the Directive 2008 and the subsequent restructuring of the loan cured and the subsequent restructuring of the loan cured J133 J133 P.412 P.412 the breach by the Respondent of not giving the the breach by the Respondent of not giving the Appellant a written statement prior to extending Appellant a written statement prior to extending it. They also argued that it was a credit credit to it. They also argued that it was a to misdirection on the part of the Court to limit misdirection on the part of the Court to limit damages suffered by the Appellant as a consequence damages suffered by the Appellant as a consequence of the wrong reference to the credit reference agency of the wrong reference to the credit reference agency to the period prior to the Directive 2008. According to the period prior to the Directive 2008. According to counsel, the damages suffered by the Appellant to counsel, the damages suffered by the Appellant continued beyond the Directive 2008 and 20th continued beyond the Directive 2008 and 20th November 2009 after the loan was restructured. The November 2009 after the loan was restructured. The basis of this latter argument was due to the position basis of this latter argument was due to the position held by counsel that the Directive 2008 did not held by counsel that the Directive 2008 did not negate the mandatory requirement of notification to negate the mandatory requirement of notification to a customer upon default and need for the customer a customer upon default and need for the customer to consent to have the credit data referred to a credit to consent to have the credit data referred to a credit reference agency. reference agency. J134 J134 P.413 P.413 188 Arising from this, counsel argued that the Learned 188 Arising from this, counsel argued that the Learned High Court Judge was on firm ground when he held High Court Judge was on firm ground when he held that the Appellant was entitled to damages as a that the Appellant was entitled to damages as a consequence of the adverse report on the credit consequence of the adverse report on the credit reference agency which resulted in its failure to reference agency which resulted in its failure to access funds before 20 th November 2009 and access funds before 20th November 2009 and afterwards. They also endorsed the award by the afterwards. They also endorsed the award by the Learned High Court Judge, of all the reliefs sought Learned High Court Judge, of all the reliefs sought of by by the Appellant including the sum of the Appellant including sum the loss of ZMWl 92,500,000.00, being damages for ZMW192,500,000.00, being damages for loss of business. business. 189 On quantum of damages, counsel argued that it was 189 On quantum of damages, counsel argued that it was a misdirection on the part of the Court to only a misdirection on the part of the Court to only there was award nominal damages because award nominal damages because there was sufficient evidence placed before the Learned High sufficient evidence placed before the Learned High Court Judge to justify his award of damages in the Court Judge to justify his award of damages in the sum of ZMWl 92,500,000.00. This evidence was in sum of ZMW 192,500,000.00. This evidence was in J135 J135 P.414 P.414 the form of documentary evidence and viva voce the form of documentary evidence and viva voce evidence which was not objected to. Counsel went evidence which was not objected to. Counsel went law regarding admission of on on to set out the law regarding admission of to set out the by: documentary documentary evidence. They concluded by: evidence. They concluded condemning the award of nominal damages as condemning the award of nominal damages as contravening Article 18(2)(i) of the Constitution contravening Article 18(2)(i) of the Constitution which adequate which directs courts to award adequate directs courts award to compensation; cases setting out principles to be compensation; cases setting out principles to be applied in awarding damages; and, referring to applied in awarding damages; and, referring to authorities on the appropriate instances for the authorities on the appropriate instances for the court to interfere with an award of damages. court to interfere with an award of damages. In the viva voce argument both Mr. Mutemwa SC In the viva voce argument both Mr. Mutemwa SC and Mr. A. Musukwa argued that the Learned High and Mr. A. Musukwa argued that the Learned High Court Judge was on firm ground in assessing the Court Judge was on firm ground in assessing the damages at Kl 92,500,000.00. They argued that the damages at K192,500,000.00. They argued that the sum was properly endorsed as a liquidated demand sum was properly endorsed as a liquidated demand J136 J136 P.415 P.415 because it was ascertainable from the consultancy because it was ascertainable from the consultancy report by Messrs One Merchant. Counsel also report by Messrs One Merchant. Counsel also argued that the Learned High Court Judge was on argued that the Learned High Court Judge was on firm ground in accepting the documentary evidence firm ground in accepting the documentary evidence in support of the award of Kl 92,500,000.00 without in support of the award of KI92,500,000.00 without sieving it because it was not objected to by counsel sieving it because it was not objected to by counsel for the Respondent. Mr. M. Mutemwa SC relied on for the Respondent. Mr. M. Mutemwa SC relied on our decision in the case of Zambia Electricity our decision in the case of Zambia Electricity Supply Corporation Limited v Redlines Haulage Supply Corporation Limited v Redlines Haulage Limited21 . Essentially, they approved of the manner Limited21. Essentially, they approved of the manner in which the Learned High Court Judge went about in which the Learned High Court Judge went about the exercise of awarding the reliefs claimed and the exercise of awarding the reliefs claimed and condemned the Court of Appeal for not upholding condemned the Court of Appeal for not upholding him. him. 190 In response, counsel for the Respondent argued that 190 In response, counsel for the Respondent argued that in awarding the sum of Kl 92,500,000.00 the in awarding the sum of K192,500,000.00 the J137 J137 P.416 P.416 Learned High Court failed to properly adjudicate Learned High Court failed to properly adjudicate upon all matters in dispute because he did not upon all matters in dispute because he did not determine whether the sum could stand as a determine whether the sum could stand as a liquidated demand. They argued that in accordance liquidated demand. They argued that in accordance with Order 6 rule 2 sub-rule 5 of the Supreme with Order 6 rule 2 sub-rule 5 of the Supreme Court Practice (White Book) "a liquidated demand Court Practice (White Book.) "a liquidated demand i,s in the nature of a debt i.e. a specific sum of money is in the nature of a debt i.e. a specific sum of money due and payable under or by virtue of a contract." In due and payable under or by virtue of a contract." In "its amount must either be already addition, addition, "its amount must either be already ascertained or capable of being ascertained as a ascertained or capable of being ascertained as a mere matter of arithmetic." mere matter of arithmetic." 191 According to counsel, the judgment of the Learned 191 According to counsel, the judgment of the Learned High Court Judge did not interrogate or adjudicate High Court Judge did not interrogate or adjudicate on how it awarded the sum of Kl 92,500,000.00. on how it awarded the sum of K192,500,000.00. They set out a passage from our decisions of They set out a passage from our decisions of Mhango v Ngulube and another22 and JZ Car Mhango v Ngulube and another22 and JZ Car Hire Limited v Chala Scirocco and another2 3 Hire Limited v Chala Scirocco and another23 J138 J138 P.417 P.417 where we stated the need for a claimant to prove a where we stated the need for a claimant to prove a special loss by tendering evidence before court special loss by tendering evidence before court which makes it possible for a court to place a which makes it possible for a court to place a monetary figure to the loss. They concluded by monetary figure to the loss. They concluded by submitting that the award of Kl 92,500,000.00 submitting that the award of KI92,500,000.00 without supporting evidence amounted to unjust without supporting evidence amounted to unjust enrichment. enrichment. 192 In the viva voce argument, Mr. E. Silwamba SC 192 In the viva voce argument, Mr. E. Silwamba SC the whilst whilst acknowledging that counsel for the acknowledging counsel that for Respondent in the High Court may have been sloppy Respondent in the High Court may have been sloppy by failing to object to the documentary evidence by failing to object to the documentary evidence relied upon by the Learned High Court Judge in relied upon by the Learned High Court Judge in awarding the damages, argued that the High Court awarding the damages, argued that the High Court Judge was still obliged to critically analyze the Judge was still obliged to critically analyze the evidence to see if indeed it proved the claim. evidence to see if indeed it proved the claim. Mr. Luambelwa echoed the arguments advanced by Mr. Luambelwa echoed the arguments advanced by Mr. E. Silwamba SC and urged us to consider our Mr. E. Silwamba SC and urged us to consider our Jl39 J139 P.418 P.418 decision in the Finance Bank Zambia Limited decision in the Finance Bank Zambia Limited and Rajan Mahtani v Simataa Simataa24 case. and Rajan Mahtani v Simataa Simataa24 case. 193 Turning to the award of nominal damages by the 193 Turning to the award of nominal damages by the Court of Appeal, counsel set out the object of an Court of Appeal, counsel set out the object of an award of damages as being the need to compensate award of damages as being the need to compensate a plaintiff for damage, loss, or injury suffered, in a plaintiff for damage, loss, or injury suffered, in accordance with Mc Gregor on Damages. They then accordance with Me Gregor on Damages. They then argued, with reference to our decision in the case of argued, with reference to our decision in the case of David Chiyengele and others v Scaw Limited25, David Chiyengele and others v Scaw Limited25, that where it is found that a party's contractual that where it is found that a party's contractual right has been breached but he fails to prove that he right has been breached but he fails to prove that he is only entitled to suffered actual damage, he suffered actual damage, he is only entitled to the nominal nominal damages. Counsel referred to the damages. Counsel referred to documentary evidence relied upon by the Appellant documentary evidence relied upon by the Appellant in the High Court to prove damages and argued that in the High Court to prove damages and argued that it did not sufficiently prove its loss. it did not sufficiently prove its loss. J140 Jl40 P.419 P.419 two of our 194 Counsel concluded by discussing 194 Counsel concluded by discussing two of our decisions whose principle is that there must be decisions whose principle is that there must be sufficient reasons for an appellate court to interfere sufficient reasons for an appellate court to interfere with damages awarded by a trial court. with damages awarded by a trial court. 19 5 Our decision under ground I setting aside the 195 Our decision under ground 1 setting aside the holding by the Court of Appeal that the Respondent holding by the Court of Appeal that the Respondent the breached breached it duty of confidentiality renders the it duty of confidentiality renders determination of this ground otiose. However, in determination of this ground otiose. However, in view of the misdirection made by the Learned High view of the misdirection made by the Learned High Court Judge in awarding the reliefs claimed we feel Court Judge in awarding the reliefs claimed we feel compelled to determine it especially that the Court compelled to determine it especially that the Court of Appeal did not address its mind to it. Our of Appeal did not address its mind to it. Our determination will also be restricted to this because determination will also be restricted to this because the award of nominal damages by the Court of the award of nominal damages by the Court of Appeal is effectively set aside by our determination Appeal is effectively set aside by our determination under ground I of the appeal. Further, the under ground 1 of the appeal. Further, the J141 J141 P.420 P.420 arguments advanced by counsel for the parties, by arguments advanced by counsel for the parties, by and large, focus on the decision by the Learned High and large, focus on the decision by the Learned High Court Judge. Court Judge. 196 The starting point in our determination of this 196 The starting point in our determination of this ground of appeal is a perusal of the pleadings ground of appeal is a perusal of the pleadings the High Court. settled by settled by the Appellant in the High Court. the Appellant in Paragraph 9 of the statement of claim reveals that Paragraph 9 of the statement of claim reveals that the claim by the Appellant was predicated on alleged the claim by the Appellant was predicated on alleged tortious act by the Respondent of negligence and the tortious act by the Respondent of negligence and the sum of relief sought was, among others, a relief sought was, among others, a sum of Kl 92,000,000.00. The relief sought under head (iv) K192,000,000.00. The relief sought under head (iv) in the writ of summons of damages for injury to in the writ of summons of damages for injury to business reputation is also tortious in nature. business reputation is also tortious in nature. 197 We have, in the recent past, frowned upon litigants 197 We have, in the recent past, frowned upon litigants instituting court actions in circumstances alleging instituting court actions in circumstances alleging tortious wrongs for liquidated or specified damages. tortious wrongs for liquidated or specified damages. In a judgment delivered not so long ago in the case In a judgment delivered not so long ago in the case J142 J142 P.421 P.421 of Emmanuel Mponda v Mwansa Christopher of Emmanuel Mponda v Mtvansa Christopher Mulenga, Christopher Mungoya and the Attorney Mulenga, Christopher Mungoya and the Attorney General26 , Musonda JS restated our misgivings General26, Musonda JS restated our misgivings aforestated and went on to distinguish liquidated aforestated and went on to distinguish liquidated damages by reference to the English legal Lexicon in damages by reference to the English legal Lexicon in the following terms at pages J41 to J42: the following terms at pages J41 to J42: "In simple terms, the word 'Liquidated' in the context of the "In simple terms, the word 'Liquidated' in the context of the expression 'liquidated damages' means 'specific' (The Longman expression 'liquidated damages' means 'specific' (The Longman dictionary of Law, 7th Edition). Black's Law Dictionary of Law dictionary of Law, 7th Edition). Black's Law Dictionary of Law defines the expression 'liquidated damages as: defines the expression 'liquidated damages as: "an amount contractually stipulated as a reasonable "an amount contractually stipulated as a reasonable estimation of actual damages to be recovered by the estimation of actual damages to be recovered by the party if the other party breaches." party if the other party breaches." For its part, the Oxford dictionary of Law defines the For its part, the Oxford dictionary of Law defines the expression 'liquidated damages' as: expression 'liquidated damages' as: • • • a sum fixed in advance by the parties to a contract as "... a sum fixed in advance by the parties to a contract as the amount to be paid in the event of a breach. They are the amount to be paid in the event of a breach. They are recoverable provided that the sum fixed was a fair pre recoverable provided that the sum fixed was a fair pre­ estimate of the likely consequences of a breach ... " estimate of the likely consequences of a breach ..." The opposite or converse of liquidated damages are what are The opposite or converse of liquidated damages are what are known as unliquidated or, to borrow an expression from the known as unliquidated or, to borrow an expression from the Longman Dictionary of Law, 'unspecified' damages. According Longman Dictionary of Law, 'unspecified' damages. According to Black's Law Dictionary 'unliquidated damages' are: to Black's Law Dictionary 'unliquidated damages' are: J143 J143 P.422 P.422 • • • damages the amount of which is fixed by the court. 11 "... damages the amount of which is fixed by the court." It is a matter of elementary knowledge indeed that the type of It is a matter of elementary knowledge indeed that the type of damages which are awarded on account of any proven tortious damages which are awarded on account of any proven tortious wrong or wrongs are of the second type, that is, unliquidated wrong or wrongs are of the second type, that is, unliquidated damages. Needless to say, unliquidated damages are damages. Needless to say, unliquidated damages are unspecified and, are, therefore, subject to assessment or unspecified and, are, therefore, subject to assessment or 'establishment' or 'fixing' by the court. 11 'establishment' or 'fixing' by the court." In the light of the foregoing, it 1s evident that the In the light of the foregoing, it is evident that the Appellant ought not to have claimed liquidated Appellant ought not to have claimed liquidated damages because the basis of its claim arose from damages because the basis of its claim arose from an alleged tortious claim. an alleged tortious claim. 198 Our position is re-emphasized by the fact that in 198 Our position is re-emphasized by the fact that in arriving at his decision which upheld the Appellant's arriving at his decision which upheld the Appellant's claim, the Learned High Court Judge relied on the claim, the Learned High Court Judge relied on the famous case of Donogue v Stevenson1 , a leading famous case of Donogue v Stevenson1, a leading authority on the tort of negligence. He also went to authority on the tort of negligence. He also went to great length at stating the "neighbour test" which is great length at stating the "neighbour test" which is relevant for determination of the breach of duty in relevant for determination of the breach of duty in the tort of negligence. the tort of negligence. J144 J144 P.423 P.423 199 The Appellant, as a result, ought not to have 199 The Appellant, as a result, ought not to have quantified his claim in monetary terms because it quantified his claim in monetary terms because it liquidated demand as we have was not was not a liquidated demand as we have a the preceding paragraphs as demonstrated demonstrated in the preceding paragraphs as in argued by the Respondent's counsel with reference argued by the Respondent's counsel with reference to Order 6 of the White Book on what constitutes a to Order 6 of the White Book on what constitutes a liquidated demand. The Appellant made such a liquidated demand. The Appellant made such a glaring error in pleadings, the High Court Judge was glaring error in pleadings, the High Court Judge was obliged to strike down the pleadings. obliged to strike down the pleadings. 200 We wish to take the matter even further by stating 200 We wish to take the matter even further by stating that even assuming the Appellant could claim the that even assuming the Appellant could claim the the Kl 92,500,000.00 K192,500,000.00 as liquidated damages the liquidated damages as pleadings as presented before the Learned High pleadings as presented before the Learned High Court Judge fell far short of the rules on pleadings Court Judge fell far short of the rules on pleadings and we are at sea as to how the Learned High Court and we are at sea as to how the Learned High Court Judge entertained them and awarded the damages. Judge entertained them and awarded the damages. J145 J145 P.424 P.424 Atkin's Court Forms 2nd edn volume 32, 1996 Atkin's Court Forms 2nd edn volume 32, 1996 issue states at page 29 as follow: issue states at page 29 as follow: "Where, however, a plaintiff claims that he has suffered special "Where, however, a plaintiff claims that he has suffered special damage, such damage must be alleged with particulars in his damage, such damage must be alleged with particulars in his statement of claim." statement of claim." 201 What this means is, a claim for special damages 201 What this means is, a claim for special damages must be specifically pleaded and particularized. A must be specifically pleaded and particularized. A in this perusal of the originating process filed perusal of the originating process filed in this matter, being the writ of summon and statement of matter, being the writ of summon and statement of claim, reveal that they are both bereft of such claim, reveal that they are both bereft of such the particulars. particulars. In relation to the claim for the the claim relation for In to ZMWl 92,500,000.00 both processes merely state ZMW192,500,000.00 both processes merely state "K 192,500,000.00 damages for loss of business." "KI 92,500,000.00 damages for loss of business." 202 The need for particularization of such claims is 1n 202 The need for particularization of such claims is in order to alert a defendant of the case against him order to alert a defendant of the case against him and aid the court to properly assess and determine and aid the court to properly assess and determine the loss by giving it a monetary value. We have 1n the loss by giving it a monetary value. We have in the past held, and as argued by counsel for the the past held, and as argued by counsel for the Jl46 J146 P.425 P.425 Respondent, that it is for any party claiming a Respondent, that it is for any party claiming a special loss to prove that loss and to do so with special loss to prove that loss and to do so with evidence which makes it possible for the court to evidence which makes it possible for the court to determine the value of that loss with a fair amount determine the value of that loss with a fair amount of certainty. The case of Mhango v Ngulube and of certainty. The case of Mhango v Ngulube and others18 is a case in point. others18 is a case in point. the 203 Not only did 203 Not only did the pleadings presented by the the pleadings presented by Appellant before the Learned High Court Judge fail Appellant before the Learned High Court Judge fail of to to sufficiently particularize the damages of sufficiently particularize the damages ZMWl 92,500,000.00, the evidence presented also ZMW 192,500,000.00, the evidence presented also fell short of the principle we set out in the Ngulube fell short of the principle we set out in the Ngulube case. The evidence was mainly in the form of case. The evidence was mainly in the form of documentary evidence, 1n particular the report by documentary evidence, in particular the report by Messrs One Merchant. Messrs One Merchant. 204 Learned state counsel Mr. M. Mutemwa in reference 204 Learned state counsel Mr. M. Mutemwa in reference to the evidence presented argued that the High to the evidence presented argued that the High Court Judge was obliged to accept it because it was Court Judge was obliged to accept it because it was Jl47 J147 P.426 P.426 not objected to. He took the view that we were also not objected to. He took the view that we were also bound by our decision in the Redlines Haulage bound by our decision in the Redlines Haulage case and, thus, urged us to overturn the decision of case and, thus, urged us to overturn the decision of the Court of Appeal which refused to accept the the Court of Appeal which refused to accept the High Court Judge's finding. High Court Judge's finding. 205 It is important that we put our holding in the 205 It is important that we put our holding in the Redlines Haulage case in its proper context. The Redlines Haulage case in its proper context. The crucial holding we made in that case was that where crucial holding we made in that case was that where any issue not pleaded is let in by evidence and not any issue not pleaded is let in by evidence and not to by the other side, "the Court is not objected objected to by the other side, "the Court is not precluded from considering it". Mr. M. Mutemwa SC precluded from considering it". Mr. M. Mutemwa SC suggested that by virtue of the foregoing the Learned suggested that by virtue of the foregoing the Learned the High Court Judge was obliged High Court Judge was obliged to accept the to accept documentary evidence on damages as proved documentary evidence on damages as proved because it was not contested. We do not agree with because it was not contested. We do not agree with this because the crucial words are those we have this because the crucial words are those we have underlined and in italics which mean that the Court underlined and in italics which mean that the Court J148 J148 P.427 P.427 may consider such uncontested evidence but not may consider such uncontested evidence but not necessary accept it. necessary accept it. 206 The Appellant's ill fate 1s compounded by the fact 206 The Appellant's ill fate is compounded by the fact that the documentary evidence which was led and that the documentary evidence which was led and accepted by the Learned High Court Judge as proof accepted by the Learned High Court Judge as proof of damages suffered does not in any way aid its of damages suffered does not in any way aid its case. As a starting point, the letter from ECO Bank case. As a starting point, the letter from ECO Bank which the Appellant's witness stated reveals that the which the Appellant's witness stated reveals that the Appellant was denied funding does not attest to this. Appellant was denied funding does not attest to this. A reading of the letter reveals that it acknowledges A reading of the letter reveals that it acknowledges the fact that the Appellant was listed on the credit the fact that the Appellant was listed on the credit reference agency and requested the Appellant to reference agency and requested the Appellant to state its current state of indebtedness to enable it state its current state of indebtedness to enable it proceed to process the application. proceed to process the application. 207 The other crucial document was the consultant's 207 The other crucial document was the consultant's to report by Messrs One Merchant. According report by Messrs One Merchant. According to counsel for the Appellant, this document sets out counsel for the Appellant, this document sets out Jl49 J149 P.428 P.428 the loss in dollar terms suffered by the Appellant the loss in dollar terms suffered by the Appellant from which the Kl 92,500,000.00 was derived. A from which the K192,500,000.00 was derived. A perusal of the document, as argued by Mr. E. perusal of the document, as argued by Mr. E. Silwamba SC, reveals that it opens with a disclaimer Silwamba SC, reveals that it opens with a disclaimer that "no warranty or guarantee, whether express or that "no warranty or guarantee, whether express or implied, it made by One Merchant Bank with respect implied, it made by One Merchant Bank with respect to the completeness or accuracy of any aspects of to the completeness or accuracy of any aspects of {the} report and no other party . . . is authorized to or [the] report and no other party ... is authorized to or should place any reliance whatsoever on the whole or should place any reliance whatsoever on the whole or any part or parts of [the] report ... "A similar caveat is any part or parts of [the] report ..."A similar caveat is placed on the report as argued by Ms. A. D. Theotis placed on the report as argued by Ms. A. D. Theotis when she drew our attention to the portion of it when she drew our attention to the portion of it which stated that there had been no verification of which stated that there had been no verification of the information provided to the consultant by the the information provided to the consultant by the Appellant. Appellant. 20s The disclaimers set out in the preceding paragraph 208 The disclaimers set out in the preceding paragraph reveal that the contents of the report were to be reveal that the contents of the report were to be JlSO J150 P.429 P.429 treated with caution. Despite this, the Learned High treated with caution. Despite this, the Learned High Court Judge went ahead and relied on it and other Court Judge went ahead and relied on it and other documents without question and upheld the claims documents without question and upheld the claims it purported to support. it purported to support. 209 What is clear from the judgment of the Learned High 209 What is clear from the judgment of the Learned High the Court Judge 1s Court Judge is that he did not analyze the that he did not analyze documents he relied upon to justify the award of documents he relied upon to justify the award of Kl 92,500,000.00 and the other damages but merely K192,500,000.00 and the other damages but merely accepted them as a given. This is against the accepted them as a given. This is against the principles of judgment writing as revealed by Dato principles of judgment writing as revealed by Dato Syed Ahmad Idid in Writing of Judgments: A Syed Ahmad Idid in Writing of Judgments: A Practical Guide For Courts and Tribunals, 2011 Practical Guide For Courts and Tribunals, 2011 edition at page 49 which states as follows: edition at page 49 which states as follows: "The decision must show the parties that the judge actively "The decision must show the parties that the judge actively wrestled with their claims and arguments and made a wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic ... scholarly decision based on his or her own reason and logic ... .. . opinions of the parties in a case should not be The The ... opinions of the parties in a case should not be copied verbatim and adapted to the judgment of the court. It copied verbatim and adapted to the judgment of the court. It is not just acceptable for a judge to mention in his judgment is not just acceptable for a judge to mention in his judgment JlSl J151 P.430 P.430 and he has that he agrees with the submission of a party that he agrees with the submission of a party and he has nothing to add. A judge should tower above the parties and nothing to add. A judge should tower above the parties and their counsel by applying some level of judicial reasoning logic their counsel by applying some level of judicial reasoning logic in evaluating a case ... " in evaluating a case ..." The author goes on to say that where a Judge copies The author goes on to say that where a Judge copies verbatim counsel's submission and adapts it to his verbatim counsel's submission and adapts it to his "ghost written" by judgment, the judgment is a judgment, the judgment is a "ghost written" by counsel. counsel. 210 The assessment by Learned High Court Judge of the 210 The assessment by Learned High Court Judge of the damages which we have set out above, is nothing damages which we have set out above, is nothing but an acceptance of the submission (in the form of but an acceptance of the submission (in the form of the pleadings and documentary evidence) by pleadings and documentary evidence) by the Appellant. He does not sieve the evidence or attempt Appellant. He does not sieve the evidence or attempt to analyze, access or apply judicial reasoning logic to to analyze, access or apply judicial reasoning logic to it, vis a vis the Kl 92,500,000.00 claimed. it, vis a vis the K192,500,000.00 claimed. 211 We have also considered the argument by the 211 We have also considered the argument by the Appellant's counsel of the need for damages to be Appellant's counsel of the need for damages to be adequate as per article 18 of the Constitution (as adequate as per article 18 of the Constitution (as J152 J152 P.431 P.431 amended). This argument is not relevant in the light amended). This argument is not relevant in the light of the holding by the Court of Appeal, which we of the holding by the Court of Appeal, which we agree with, that for damages to be awarded they agree with, that for damages to be awarded they must be proved. The article only comes into play must be proved. The article only comes into play when assessing damages which have been proved. when assessing damages which have been proved. 212 As a consequence of what we have said ground 4 212 As a consequence of what we have said ground 4 must also fail. must also fail. Leave to appeal to this Court Leave to appeal to this Court 213 We note that this is the first appeal we have dealt 213 We note that this is the first appeal we have dealt with emanating from a decision of the Court of with emanating from a decision of the Court of Appeal. It comes before us by virtue of leave to Appeal. It comes before us by virtue of leave to appeal granted by the Court of Appeal at the end of appeal granted by the Court of Appeal at the end of its judgment couched in the following terms, "leave its judgment couched in the following terms, "leave to appeal is granted. " In so doing the Court of Appeal to appeal is granted." In so doing the Court of Appeal did not explain the reason why it felt that the did not explain the reason why it felt that the dispute between the parties should be escalated to dispute between the parties should be escalated to J J153 J153 P.432 P.432 the apex court and neither was it moved by either of the apex court and neither was it moved by either of the parties prior to making the order. the parties prior to making the order. 214 This omission by the Court of Appeal is important to 214 This omission by the Court of Appeal is important to us because, whilst there is a constitutional right of us because, whilst there is a constitutional right of appeal to our Court by virtue of section 131 (2) of the appeal to our Court by virtue of section 131(2) of the Constitution (as amended) such appeal is only Constitution (as amended) such appeal is only with leave of the Court of Appeal on limited grounds with leave of the Court of Appeal on limited grounds which are set out in section 13(3) of the Court of which are set out in section 13(3) of the Court of Appeal Act. By virtue of this provision, the Court of Appeal Act. By virtue of this provision, the Court of Appeal, unlike the High Court, is not obliged to Appeal, unlike the High Court, is not obliged to pronounce itself at the end of a judgment as to pronounce itself at the end of a judgment as to whether leave to appeal has been granted or not and whether leave to appeal has been granted or not and give reasons for such grant or refusal. give reasons for such grant or refusal. 215 The Court of Appeal must wait for a party to move it 215 The Court of Appeal must wait for a party to move it after it has delivered its judgment, seeking leave to after it has delivered its judgment, seeking leave to appeal, and if it is satisfied that one of the grounds appeal, and if it is satisfied that one of the grounds J154 J154 P.433 P.433 for granting leave has been satisfied, it must grant for granting leave has been satisfied, it must grant the leave. If not, it must refuse the leave. the leave. If not, it must refuse the leave. 216 The permissible grounds for the grant of leave to 216 The permissible grounds for the grant of leave to appeal in civil matters are set out in sections appeal in civil matters are set out in sections 13(3)(a), (c) and (d). These are where: the appeal 13(3)(a), (c) and (d). These are where: the appeal raises a point of law of public importance; the raises a point of law of public importance; the appeal would have a reasonable prospect of success; appeal would have a reasonable prospect of success; or, there is some compelling reason for the appeal to or, there is some compelling reason for the appeal to be heard. be heard. an 217 The 217 The rationale for the foregoing is an foregoing rationale the for lS acknowledgement of the fact that the resources of acknowledgement of the fact that the resources of the courts are overstretched and if it were otherwise, the courts are overstretched and if it were otherwise, the doors to justice would be open to busy bodies the doors to justice would be open to busy bodies whose only aim is to delay the inevitable execution whose only aim is to delay the inevitable execution of a judgment. We are of the firm view that this of a judgment. We are of the firm view that this Court should only be open to a litigant who has Court should only be open to a litigant who has JlSS J1S5 P.434 P.434 moved the Court of Appeal and met the threshold moved the Court of Appeal and met the threshold set out in section 13(3). set out in section 13(3). 218 Coming back to the leave to appeal granted by the 218 Coming back to the leave to appeal granted by the Court of Appeal, this appeal obviously raises a legal Court of Appeal, this appeal obviously raises a legal issue of general public importance in that the public issue of general public importance in that the public are keen to know the fate of their credit data once are keen to know the fate of their credit data once they obtain loans. In addition, this is the first time they obtain loans. In addition, this is the first time that a matter of this nature which involves the that a matter of this nature which involves the provision of credit date to a credit reference agency provision of credit date to a credit reference agency is arising in our Courts. It is an important matter is arising in our Courts. It is an important matter which affects every borrower and potential borrower. which affects every borrower and potential borrower. To this extent, the Court of Appeal's fault lay only in To this extent, the Court of Appeal's fault lay only in granting leave without the Appellant moving it and granting leave without the Appellant moving it and meeting the threshold. The downside however, is meeting the threshold. The downside however, is that this was an appeal by a defaulting borrower that this was an appeal by a defaulting borrower and, as such, the question that looms large is, and, as such, the question that looms large is, I • 'j J156 J156 should such litigants be allowed in to our Court? should such litigants be allowed into our Court? P.435 P.435 Our answer is no. Our answer is no. Conclusion Conclusion 219 All four grounds of appeal having failed, we dismiss 219 All four grounds of appeal having failed, we dismiss the appeal with costs in all the three Courts. In so the appeal with costs in all the three Courts. In so doing, we set aside the holding by the Court of doing, we set aside the holding by the Court of Appeal that the Respondent had breached the duty Appeal that the Respondent had breached the duty of confidentiality and the award of nominal damages of confidentiality and the award of nominal damages of KS,000.00. The costs are to be taxed in default of of K5,000.00. The costs are to be taxed in default of agreement. agreement. E. M. HAMAUNDU E. M. HAMAUNDU SUPREME COURT JUDGE SUPREME COURT JUDGE ~ - - - - - - - - -~ ··········,···················••f••······· M. MUSONDA, SC M. MUSONDA, SC SUPREME COURT JUDGE SUPREME COURT JUDGE