Pike Mwamba v Access Bank Zambia Limited (2024/HPC/0720) [2025] ZMHC 82 (6 October 2025)

IN TBE lllGH COURT FOR ZAMBIA 2024/HPC/0720 AT THE COMMERCIAL DIVISION HOLDEN AT LUSAKA {Civil JW'isdiction) BETWEEli Ft'. KE MWAMBA ANO HJGH COURT OF ZAMaJA JUOIClARY COMMF.. RCIAL DWISlON ti () i: r lOL'J ~ REGISTRY .,,0. BOX SC061. LUSAAA PLAINTIFF ACCESS BANK ZAMBIA tlM. ITED DEFENDANT Coram: Honouablc Mr. Justice L. M:wanabo on 6 th O<:tober, 2025 For the Plaintiff: Mr. N. 1. Mw:,lc of Messrs. Novns HM Legal Ptctclitionern For tbe ~fend.artt: Mr. K. Nkunta of Messrs. Augusit Hill & A$so~i:l.tes wit h M:s . G. Mllsyani, Head Legal and. M . T. Band a, Legal Manager - Acce!Ji:t Bank Zambia Limited , JUDGMENT Cases Referred to~ 7 ~ Slc'hllya tJ LU-k«chi Irt~tm.ents L,mitecl «ttd o,hers ll. P/330/2011 2. Sa.11enda Management Serr,ices n sta nbic Bank Zambla Umttecl Seloctcd Judgmfflt No. 10 of 2018 3. Donoghue v stevenson 11932) AC 662 4 . Zambia State Insuninoc Corporati-On v Serios Farms Limited (1987) ZR 93 (SCJ 5. Zantbi<m. MA.ti<>nal Sc,ci.cty 11 Nttyttndtt SCZ No. 11 of 1993 6. Egbert Kavwamga Yambayamba v Ba.re. Jays Bank Zambia 2013/BP/1880 (5th December, 2017) 7. Bri.dget Mto,1ga (S"ilt,g 4-S ~d.m.£nlrtrator for the Late Ell'"' Banda) 11 Zambia Witd(ifs Authority CAZ Appea.t No. 171 of 2022 TleM Kah--:nya v The Attorney Gcnc.-«I (2013) 2 ZR 285 9. W~lson Maaa:tu<> Zulu. v Avondal'J Ho:ming Project Llmitc-d (1982) ZR 172 10 Khalid . Mohcimcd v The Attomey General (1982J ZR 49 11 Mldlot11ds Brewerll:s (PvtJ Limited v D,wta MtmyenyemJ,c (2012) 1 ZR 133 12. Mwansa u Zambian Brewerfcs Plc (Appeal 15 3 of 2014) /2017] ZMSC 42 13, Tyson Mtonga v Warren Ng'ambi App~o.t No. 27/2011 14. Attorney General v Katwishi Kapand.ula {1988w1989J ZR 69 (SC) 15 YB and F Trattsport Limited v Supet'$onic . Motors Limited SCZ Judgment No. 3 o/2000 16, Emmanuel Muto.le v Zambia Co""-'f<>lido.t.od Copper Mirce:s Limited Appecd No. 27 of 1994 17 Zambian Breweries Ptc v Marltlme Freight and Forward . Ltd (Appeal 16 of 2019) {2022] ZMSC 40 18, Nimm.o v Alexander Cowan & Sort Limited {1968) AC 101 19. Stanbic Banic Zambia Limited v A. S. & C. Entcrp~s and ~hers (2008) 1 ZR 259 20 Thackwell v Barclays Bank {.1986) l ALL ER 676 21. Zatttlrl<i National Bulldlttg Society v Nayunda SCZ Judgment No. 11 of 22, Mutale 11 Zam&la C0n$olidated Copper Mines SCZ Judgment No. 12 of 23 Road Development Agency v Agro FiAel lnV4:Stment Limited CAZ Appeal No. 1.14 of2019 21. Galunia Farms Limited u Na"t:ioJ\ed Milling Company Li,nitcd {2004) ZR J. ($. C. J 25. Michael Chil14/ya Sat.av Zambia Bottlers Limited SCZ Judgment No. 1. o/2003 26. Lafargt! Cement PLC v . M«ndona (Appeal 220 of 2017) 27. Sylt:JestJ!r Mu$0nda Shipolo v Shculreck ltfaipambe (Appeal 1 of 2016) 2018 ZMSC 319 (7 ScpUmber 2018] 28. The Att.onu:y General v D. G Mpcmdu (1984} ZR 6 (SC) Legislation. Referred to: 1. 2. c~edit Data (Privacy1 Code of 2006 The Data. Protection Act No. 3 of 20..21 3 , Tlv: Credit Repo,-tbig Act No. 8 of 2018 4 , The Banktng an.cl Financial Services (Provision of Credit Inform<ition a,id Utilisation of Credlt R~porting Agencies] Direct111d, 2020 5. The Ju.dgrnen.t Act., Chapter B 1 of the. Laws of Zambia Cl$ amended by Act No. 16 of 1997 6. The Banking and Financial Services Act t>f JV.a. 7 of 201 'T Other Mate.rials Referred to: 1. Phipso,a on Evidence, 1 s,,. Edittott (Lon.d .. ott: SU1cct a.nd Maxwell. 2000} 2 . Bryan A . Garne,... Bl«c.k' $ L<lw Dictionary,. 8th Edltion, Thomas Reuters, 3 . Neil Foaater. .,~Tho M4U'it$ ef the Civil Action fo-r Br-ea(;h of Statutor.'I Du.tg"' in Tha Sydney Law Rsvie w, ,2011 4. The Bank of Za:n:ibia Ch.t-idcmcc: . Note 1 of 2014- Utilfsatiott of the Credit Rcpo,rting System 5. Bryan A . ·Garn.e,-. JJlack's Law Dictionary, l Qlh Edition 6. Halsbury's Laws of Etlgra.t\d 5a, Edition, Volr:cme 9 7 7. Hal.$burg's Laws of England 5th Edltiori, Vofur,t~ 21 8. Atkins• Court F orms, 2nd Edition., Volume 11(2) (2001) 9. Pfdpson ott Evidence 19Ut Edition (Londo-ti: St11cot and Maxwell, 2018) 10. Paget's Law Qf Bankfog, 13111 Edition I 1. The Bankers As-soda-tfon of ZClmbicx (BAZ) Code of Ethic-s tVt,d Ban king Practice, 2020 1.0 INTRODUCTION 1.1 Th~ J. J aintiff h crem commenced this &cliun cm 3ou1 September, 2024 by way of wril of summons ~,cf'.kin g the following re iefs: {t) Darm.1.9es agninsl the Defendant for breach of sLatutory duty)· (itJ Do.mages for neglzgcnce: (iti} Damages for the i.r1c.ortuenience; (tu) Interest on. all rht::! -'>1..l.rn.~ found due)· (u/ C'o.st.s; Qn,d fr,~ Any other rel.ief lltat the Cou.ri mrty dee.m JU. J3 1.2 According lo the statement of clai.tn, the 1-'la.intiff who is a customer of t he Defendant approached Ab~~ Bank Zan1bia LlmiLed in fa. Jsaka (hcrc1nafter reJerred Lo aa "Absan or "Absa Bank"') <>11 or about 9 1h April, 2024 to apply for :m unsecured loan facility of ZMW 850,000_00 (hercjn~ftcr referred to as "the loan fs.cility.,), 1.3 It was averred that the purpose of tru~ loan \Y-as to, inter aha, radli tatc the establishment of bu,Sincs~ operations it1 Malawi, with the intentiort of inc~orporating a subsidiary of FOSs Scientific Llmitcd, a Zambian company in which the Ph:1intiff is a majodty shareholder, direc:Lur anci Crud" Executive Offit:c::-r. 1.4 The Plaintiff further averred that it was his inlention that with Lhe rud of the loan facilJLy from Abs.a, Lht: bu.5incss operations in Mala.wi would have become fully Op<~ra1iona1 by l!il. July, 2024. lt was <.;laimt!d thal on or about l2Lh Aprtl, 2024, Absa reverted to the: Plaintiff and ad\liscd lhr. tit could not iR~ue Lh • loan facility to him because according to a Credit Reference Bureau (CRB) Report submitted by I.he Defonrlanl, the 1->lainti.ff allegedly h~d a pcrs-onal non-performing account with lhe Defertd~nl in thf' sum oJ ZMW l301000.00. 1.5 Furthermore, t he Pl&iuliIT indicated that on or abou l l !i', Apnl. 2024, he \! eru lo tht! CHS nfficc~ in Lusakai where the; 1Jc;:fcndm1l corlfinnc:d lhal iL had in foct reported tlus alleged non-pcrfonnin~ acc-01.tnl as bcJonging to him. 1.6 Therefore, the Plaintiff ve-rbaUy nuacd a complaint with the Defendant r-i::garding th e CRB report and wns 1:1tknded to by the Ddendant's- staff, namely, Winnie Ngulube and . Bmny Cho1a who confirmed to him lhat. he did nOL have ~ non-pcrfornung account~ and U1at the CRB report su bmitied by the Defendant. was incorrect. I. 7 There-RI ·r, Lnc Plaintiff requ sted a formal wrlucn f!pology from the Ddcndant. However, the Defendant did not provide atl apology to J4 him immediately upon being notified of the false report it made to the CRB agaim,L the Plaintiff. L8 The PfainLiff av ·rrcd t h ra.t at the tUDe the CRB report waa suhTIUtted by the Defendant, he was not in default on any account held with Lhc Defendant. Further, thal he w~ 1101 informed of anv non performing account LO h is credit d~ta ~ing reported to the CRB hy the Def er\d&n t. 1.9 'rhe Plain t iff averred thal th e Defendant's cooducL WE,ls in breach of Clause 2 .3 ~ 2.6, 2.7, 2.30 and 2 .3 1 of the Banking and 'Finan~lal Se,vices Act, Credit Data (Privacy) Code of 2006 (hcrcmaftct Lo as "Credit Data (Pdvaey) Code" ur "the Code"~. 1. 10 The! pHrlicu lars of breach of statute were lughL.ghted as foUows: i) Ft'hat the Defendant failed to gwe the Plairttijf written notice of any alleged default on an account ll~ld with it by tfw. Piainti}J: i'i} T1u:t.t the Def endunL provided ina.ccu rate negative aocounL data relating to t-he Plain.tiff to the CRB wiJ.hout verifying whether the Plaintiff had an account in. def en.th. iii) Thal the Defl::n.da,u breached its: duty to pr01Jide the CRB with uc:c.:urate account data. relo.ting lo the Plamtifl's account held 111ith it.. 1.1 1 he Plaintiff asserted chat the De endant1s conducl was n egligent and such negligence caused Urn Plaintiff lo suffer loss/darnagc, The negligence was panicu]arised as follow!.-.: i) Breach nf legal aru1 f ul.uni.ary clut;y by failin.g to 1.a.ke reasonable care to ensure that the account data prouided to the G"'RB u,-as accurate and related to c.m account Tteld by the Pla.i.ruiff u;ith the Dcf endwu; ii) The nefendant breacheri Us duty to rwtify the Plaintiff of cuiy defaulting account relatmg to the Plain.tiff before prouiding ac.coi.uu data J"cla.tit'l.(I to the Plaitl.tiff to (he CRB, J5 iii) The Deferldant breached its duty to apply the requisite reasonable skill, kncwfodge and experi. Emoe with which it 1.s possessed lO foresee injwy/ loss to the Pla;ntiff by ettST. Lri.ng tha.1. 11 .. ny account data relatirly iu the PlarntijJ' as its c.:ustomer was accurate and uerijuzd befc,re being sho.__red with the C'R. Bi iv) The Defendant failed ~n exerdse precauuon hefore submitting the ncgatiue credit information on CRB ()r taking steps ta enstuc: thc .. t.l. reported date r..uas ac.."Ct'Jtate; u) Negliyenily flnd/ or recklessly, or ull~mri(1vety, without caring whelher the statemcmts r.uere true, or false, t11~ Defendant represented rn CRB thaL the Pfai.n.tiJJ had a rum-performing Joan accounz. t.vith Lh.em; and VI) The Dcfe,ul.artt Jailed to follow the sta.tt..ilOry procedure: applicable t.o it when re u rtd~rtook Co prouide the Plwn.tjfJ's account data ta tiu? CRIJ. L 12 It was asserted Lh~1 by reason of the D cfondan t's n egligence. th t! Plaintiff has suslaincd direcl and con.sc,:q11c:nt i~ loss, inconve-11ic·ncc and delay. L 13 'f'h c Dcfcndanl 1:ntcr'(_:..d '1ppee.rruicc on 2 1st Octoucr, 2024 and filed mcmo1a mlum of appearance a nd a defenc-e u ml ~ubseque.n. Hy. an atnt!nd<..-d defence v.-rn.s flied oti 2 2 1 ' N ovcm br.r, 2024 . 1.14 The Dc-:fendantavcncd chat tl.e indu~1rypracticc considers m1.~ltiplc fa ctors for declining to gra r'lt ~ cust..omcr a Joan facili ty anrl that the CRB data, both po$illvc snd negative, is not. used a~ a blacklist to deny crooil.. Tt was stated that: the purpv~e or th e credit reporting system is simply to enable financial sccvi.cc providers have sccurate credit infot'mation a.hou b-01Towers prior to them a<lvancing cred it. 1 .15 Accordjng Lo the DcfcndanL. the Plaintiff rr:1iNed a verbal complain t witb the Defendant and was attended lo by the Defendan t'i-J officers rectified the- posititm v,.rithin the stipulaccd 30"da.y notification period. Furth~r. that the Defend.ml issued a n A.poJogy to the Plaintiff J6 alon~ wilh the rectified CRB reporl I hrough lts Relation!ihip Manager and hat the Defendant cont:inuousl}r discharged i Ls dt1tics owed to lhe Plainli.ff arising from the parties' relatiom,hip . 1.16 The DefetLda.nt (fonic<l being in breach of Statute>ry duty ·under the law and acldt:d thal erroneou s credit entriea arc contemplated by the law, which provjdes for the .dght t.o chaHen gc erroneous etod.il report. information by a data subject who may launch a complaint ~ cl i-;u b!'icquent rectification by a repor tin g entity 1. 17 Further, the Ddcndanl averred. that d espite lhe Plruntill's failure LO correctly exerci s ~ th c right to challenge the i nacc;u rate credit report in .. vriling, i l made all necessary effort. lo promptly rectify the PJajntifrs credit report within 24 to 48 hours of the verbal complaint from the PJain tiff. 1.18 ln response lo lh(: Plaintiff•s claim fo.r 1te:!gliI:,'t.!ncc, the Dcfcnd~nt denied causing any loss suffered by the Plaintiff and as....-;erlt~cl Lhat ~be Plaintiff was not entiLletl to any or the claims pleaded. 1.19 The Plaintiff filecl a n~ply on 14 1b Fcb1uar •, 2025 and ma:int.ained Lhc1t lhc D •fendanl's conduct \ as io brc:F,1<:h o f 1ls statutory and contrr-lch-uu obligations to him. Furth<~r7 assertions regar<lir1g Lh c u~e of CRB daca are urelevcml Lo the i:,sue that lhe Defendant's of negligence .1ncl b reach ofststutoryduty as raised in th· ~t_a1·oment of claim. 1.20 The Plaintiff ciisputcd the Defendant'::. a~:ic:rtion s and averted lh[;ll l he Defendant listed Lhe Plairlliff m.--gligcntly and tn breach of clear statutory procedure9 find dt,tt1cs. lt was corttendecl that the Dcfondent's listing of the P aintiff was wrongful and, in this cast!, ntgaLiV{~ly impacted rus ability co secure a lo:an f acuity in a timt::ly manner. Further► that lhe Defendant's alleged rcctificatitm c>f the wron gful listing did not reclify its negligent conduct in listing the Plaintiff wron g fu lly. J7 1.21 ft was averred that even though an apology wa~ issued i~~ued by U1e Dcfcndanc's Relat. JCmship Manager, the said a pology and the provision of a rectified Cl<B report on1y serve as confirmation of tht! Defendant's negligence and breach of Ute statutory duties owed h_y the Defendant to the Plaintiff. l.22 Lastly, th e Plaintiff averred t.hal Lhc claims made in the statement of claim arise from lh "' Plf\intifP::i relationship with the Defendant, the ne-gligenl t."<Jnduct of the Defendant and the br~ch by the Def udQ.rtL of ils fiduciary and s tamtory duties. 2.0 EVll>ENCE AND SUBMISSIONS BY THE P'LAJNTIFF 2. 1 The PJaiutifT ,.qa~ the only witness for h is case and I will refc.:r to h im Lo l:lij PJ!l_in tiff and PWl interchangeably. PW L's evidence was c::mbodicd m his witness statement. filed on 21 11t Marcht 2 025. wh i<.-h was pr~duced and marked a.s "Pl". Hi3 witness s1.a temenL m irrored th e content~ of the litatcmcot of claim save for rd~n;n cc to c.loc"uncnts in the bundle of documents. Therefore, I will not reproduce his •vidcn cc in chie f. 2.2 Under XXN, PW) (.;onnrm<..-d th at he applied for a loan with AbR~ on 9 !I April, 2024. lie further confirmed th at on 24'" April, 2024 Absa Bank rcJcctcd that loan facility uccause hr: h ad a non-performing loan by lhc Ddenda11c. fHoweve-r, chi cont.radicts his evidence in chief and pleading in the slalc;:mcnt o( dann thal Absa 1-c jected t.h c loan facility cm l '2lh April, 2024). 2.3 Afler being asked to confirm the CRB sequence of cvidcnce 1 PWI admitted that th ere W11!> n o Lh in g. in 1hc documents co show lhal Absa 1-tjected h is lcum d u r: lo th r: i6sue of credit refere n ce by the Def~clanl. PW I confirmed being the CEO of FOB s Scientific Lunited and conced ed that there we~ noth ing in the docu tnent w show busjaess opporLunitics for the Malawian offioe in the sarne pt:-riocL J& 2.4 In response to the quest.ion whether Lhc-rc were any documenL~ that showed t h e profil for ZMW 850,000.00, he n:.!'lponde<.l tha l the reason pa.rttcs were in court was been.use of lhc CRB i~suc. P\l/1 confirmed that in lus documents. lhert! is no evidence of the exiRt.cncc of Lhc company. 2.5 Ct was PW J's tc-stunony tlial he was a Reasoned businessman and lhnt he docs cve1ytbing in his po\a,,·cr lo protect loss. Further, that at the material tune h<· enjoyed services \ ilh Absa and with the Defend~nt 2.6 PWt confirmed that he did nol go back to Abs.a after tht! CRB report was lifted Lo inform thern 1 hal he was \vrongly 1.tslcd flftcr rejection of the 1oa.n on that basis. According to PWI, he 41l so did nol c-,1sk the Defendant for sirnilt;U" facility afti:r the error '"·as rectified. 2. 7 PW l further ~t a t ed that the facility was nol granted as ~1.tch then-: were no ~"Cipts to operation alize the project in Mal~wi He indiC}.l.tcd that the ZMW 850,000 loan was un~ccw·ed and that Jt Wlis not pos~iblc thaL the loan was declined due to lack of collatcrc1I. 2.8 According lo PWI, the lellcr from Abs~ was not rt!l~vant to prove his point on lhc loan appl ication rejection by ABSA. PW l r.onftnned that he did not prepare any business proj<.-ct proposal. Additionally, that a fca11ibility study wa.5 doue hut w~s not before Court. 2.9 PWl confirmed thl'lt the bank apologised for Lhc ·wrol'lg li~Hng and t hat it look a lmost 2 monlhs to get the a r>0logy. He I old U1e Cotlrt that he wa.s aware Lha L the CRB register pos1Livc <1nd negattve perfonnancc loans. Further, that h~ wR.s aware th:lt the bank looks at many thi.ogs when approving a Joan. Lastly, PWl confirmed that he sbll had ac:coun ts with Lhe Defendant. 2.10 There wlls no RXN, and that marked the- close of Lhc Plaintiff's case. 2.11 The: Plaintiff filed ,vrittcn submissions on 1A1 ,July, 2025 and ~tarted by giving the background of the matter. The P aintiffs claim waJ. J9 highlight-Cd as well as the Plaintiff's and Defortdant1s evidence at Lrial a~ already highlightt:d above. 2.12 Thr; Plaintiff organlst!d it:~ submissions under four limbs. The first limb focused on the breach of stalulory duty and negligence. 1t was submitted Lhat evidence was ~dd uccd Lha.t the Plaintiff was wrongfully and n gHgently li!il.cd w1th the CRB by Lhc Defenda.nl a~ having a non performing loan in the S1.ttn of ZMW 330,000.00. 1'hc Plaintiff usserL.ec.l Lhal the evidence derrlonstrn.tcd that chis ii.sting was wholly inaccurate, the 1nformation wa6 frdse, and the report was made negligently by the Dcferttlanl. 2.13 Th~ evidenc..--e oi DWl was tefen-cc1 to, to argue that he admi ted that h<; was nwru-e tbal lhe D ·fcndant had a duly to provide a.c.:ct.mate crcdi inforroalion a nd that in the 1.nforrnaLion provided in relation to ~tr. M\va.mba was not ac~urate. Fur ther, that m relaliorl to the defence that the 1·epot'L waN made because the PlainlifP:; name\ a~ similar co another clie-:nt, DWl admitted that Lhe l..>cfcndanl had no proof in support of this assertion. 2.14 IL '-"·a..~ submitted by the Plain tiff hal the eY.idenc::e proves the Defcndant•s failUt't: Lo Wk<! rc~sonablc and ptactical sl •ps lo verify his cre.dit date prior LO its submission to Urn CRB. The Plaintiff further i:;ubmitLc-d hat the Defendant'& conduct is in conL.tavcnt"lon of Claus.cs 2 .6 and 2.7 of the Credit Data (Privacy) Code of 20061, whkh state as foUows: ".2. 6 Before a credit provider p ·rovid.,es any credi t data to 4 CRA, i t sha. H have taken reasonably prv.cticable steps to che ck such data for accuracy·. If .st4b$equently the credit provider disco pers any irtczccu-racy in tile data tvhich have been provided to the CR. A, it shall update such data held i n the database of the CRA as soon as reasonably practicable. 2 . 7 lf a credit provtder falls to ha11e tak,en N as-onab ly· pr~ticable steps to chllk the accuracy of the data befor4J J10 prouiding sw:.h data to a CRA, or tf lt fa-ils to update the data held in the da-Wase of th,e CRA after discoveri.ng $UCh inaccuracy, thts will give ri.se to a presumption of contravc1'1tlon of DPP2(1)1 2.15 The Plain tiff posilc,;d that. the duty to verify daca is echoed in Section 12 of the Data Protection Act No. 3 of 202P, which was reproduced. It was submitted that tbe provision rcqt~ir-c that personal data should be a.ccura1e. 2.16 It was submitled furlh~r LhaL, uoL onJy did the Defendan t fail f-.o verify t.be u1fonnation i L !'lubm1t tcd to the CRB, but it .should h rwc a ls o n.otc;d that there was n o notification of def~ul sent to the Plaintiff to confirm th.. his account wa~ in ckfa\. J lt, Clause 2 .3 of the Code 1 was relied on and reproduced a~ follows; "Where t:lu! ct"e:dit provider has pnnlided credit to a person and the account is subsequently in dt!fault, the cred'it provider shall., as a recommended practice'1 give such person within 30 dtty$ from the date of default a written remittdar stating that unless the amount in default ls fully repaid befo~ the IJJ(piry of 60 day.s from Ut.4 date of default, the person sh.all be liable to have hi:s account data retained by tlta CRA un.tfl the expiry of 7 years fr-om the date of final settlement of the account in default or 7 years from the date oft.he person's discharge from bankruptcy." 2. 17 It was the Plaint:ifrs pos,tion that under XXN, D\iVl confirmed that no such l."eminder was given lo th£: Plaintiff if at aD his accounl was in def~ult. f\(;-cording to the Plaintiff, this confirmed that the Defe:ndanL ~viut compktrly ncgugcnt in providing his crc-di l data o the CRB, and reporting that be had an account. in default. ~.18 The Pla.i.nillfwe.t1l Ort lo COr'\lenc. I UHtt in CY'J:-5-U, he Defendant neither verified the- data nor g~w<: any notice of default to him to ju stify it...:i false report . 'fhese omissions, according to lhe Plajntiff, constitute a Jll breach of the slatulory duly whi(,h is imposed on credit pro"idcrs anci 1-csulted in the negligent. handling of his sensitive finam;iat data. Further, lhal Lhc~c:: omissions and the apulom- issued by th Defendant t:onfinn that the Defendant acted negligently and was in bt't:ach of 11 s s tatutory duty. The Pkuntiff adverted to the caS<~ of Sichily.a v Luka.chi Investme:nb Limited ~nd Others1 Lu h ighlight the clements that a pl. Hinliff mu~t ·stablish to succeed i.n a n action based on the tort of nc;glig(!ncc1 which rue as follows: ("l) that the defendant owecl him a du y of care in tJ-1e circ urn stances; (bj that the deCendant or hi8- ~crvant or agent breached that duLy by failing lu conform lo Lhc roqufred ~ta n dw-d oi (c) condu<.:L; ;;md I hat the Plaintiff has suffered damagt~ a~ a consequen ce or the breach. 2. 19 lt was submitled thaL the D ·fcrulf\J'lt owed che Pio.inti. IT, ai:. ila client. a du Ly of use of reasonable skill and care irt handling his credit data. Several cases were cited, arumwg lht!m, l hc case of Save:nda M:a.nagement Services v Stanbic Bank Zambia Limited2 and Donoghue v Stcvcnsq,n 3 to bu ttress the poinL th1:tL Lhe Defendant ltacl s t.1!I ~tory and fiduciary duties owed LO tht: Plaintiff. 1t was tile Plaintiff ~ubmisR1on that the duty imposed on a Grcdit provider to take reasonable and practical ~ceps w check the accuracy of lhe data it submiL=> to th e- CRA i ~ owed to aJI customers a11d per~ons whose d.ata it. rcc-:ords as such persons al'e likely Lo be affected by any acts on the part of the crediL pruvider whkh act.s- include Lhe SlJ bmis&ion of false o_r inaccurate infotn1aLion, '2.20 The Plaintiff submilted Lhat he produced a CRB repor l on pages 5 and t> of h js bundles of documents issu ed Lo him hy Ab-sa Bank on 1 Olli. Apnl, 2024 in response to his loan appJieaLion to Absa made on 9ui Ap1·il, 2024. Furlher, Lhat th Plaintiff maintalnc::d u n d er X N H2 LhaL U, .. CRB report inconvenienced him, p rc-venled him from acce~aing fl.tndmg from Absa and also affected hi!; plan nr.d business interest in . Malawi. It wa~ th<! PlwnLifr~ su.bmissfon th.at he .has successfully esc~b3if.hed h iN d;1im for damages for breach o f statutory dut and for nc-:gligcncc. as endorsed in the wril o f summon s. 2.21 Secondly, the Plaintiff s u bmitted on the <:omplaiots procedure under th.e Ct'e-dit Reporting Act3 . fl \Vl'i!i submi ll ·d that DWl referred Lo a compla.inlS pr<.x.:edun: Lhat. he was aware of under the Credit Reporting Act3 . 'I't1c:1t DW 1 w,-H; ft::Jkc.;d during XXN whether Lhis proc.:edurc- w~s availed to the PJamtilf in writin g as required by th e Ac and he confirmed that it was nol. The; Pl~inl.iff adverted to Section 35 of the Credit Reporting Act:J, which pTovides that: ''A credit reporting agency shaU- (a) e.stab lish and make available,. in writing, the procedure for dealing with com.plai nts madt? by er. person to the cr~di't r-eporting age ncy; (b) designate a person to be a custo,ne,- service officer responsible for i mple menting and administering the procedure referred to In paragraph (a}; and (c) csta.b lislt. tJ. J't.d maintain, for two yeQrs~ or such longer p4!rl.od as the Bank may specify, a record .stating the complaints received, when an.d how thftg Wf'ire dealt with or disposed ~ ., 2.22 The third lirnb of Lhe PlainliIT's submi~~ions was on causation amJ lo~:; o f bu5incss. It was argued thar th e Plaintill's evidence demonstrates a clear casual link between the Defe.n.dartt's wrongf1tl listing and Lhe inconvenience; rejection of his loan application by Absi! Bank; and lhc negative impact on his bu iness interesLs m Malaw1, It was. posited that he Plaintiff applied for a loan facifay of ~MW 8501000.00 on 9 th April, 2024 co fa.cililatc tJw c~tablishment J13 of a subsidiary of his company FOBs Sdt'.ntifc Limited in t\'lalawi, which was robe fully operational by l "t . July, 20211 2.23 It was con ten ded by the Plaint..iff that after Absa rejc::clcd his loan applicalion on Iztn ApJ H, 2024, h ~ verified thjs information ·with th<: CRB cm 15th Apn1, 2024 a nd unmedialely approached the Defendant. That dc:spitc lhc Defendant correcting the error by 18tlt April, 2024, Lhe damage had ;,llteady been done. It was argut.o.d that th e Plain Liff had lost cntcial Lime:, business credib iMy and the opp-orlunity to ope.rationali::.e Lhe business m Malawi 1:t.s planned a.nd lhal the negative cred[L tll:lt(:l report was a subst.anliaJ factor in the lorui. rcject1on. 2.2~ The Plainti ff daimcd that. it is en titled ~o an award for damf.\gcs as compen:;a ion {or breach of statu tory duty by the Defendant; negligcn c:c and incotwenie~oe. The case of Zambia State Insurance Ccn·poration v Scrios FaTms Limlted4 wai; ca!Jcd to aid relating o persollaJ inconvenience. 2.25 The last limb of the Pla.i.ntirr~{ ~ubmissions was on damages, lt was contended tlud lhe Plaintiff was entitled Lo damages because Lh c Defendant acLed nq;ligcntly and in breach of statutory duly. Several cases wen: citccl including the ca!>C of Zambi.._n National Society v Nayunda SCZ No . 11 or 1993 And the Savenda case fsupra}. AddillQnally, Section 72 of th~ Data Protection Act No. 3 of 2021 1 and Lhe ca~e of Egbert Kavwamga Yambayamba v Batelays Bank Z.un'bia6 were adverted to iu grounrling entitlement to the award of d:aml'\gcs for negligent CRD li~ting even in the ab~c;nce of prov ·n financial lo~s. 2.26 ·rhc case of Bridget Mton~ (Suing as Administrator for the Late Ellett Banda) v Z:unbfa Wilclllfe AuthoTity7 was cited Lo huLtrcss the point that whete a party dearly shows a breach of a duty of caJ'e such as statutory dut.y owed Ln it but fails to prove damage or injury, J14 such a pw-ly could be paid Jlum imtl damages p urdy on aocow1L or the brec:1ch. I ,.,,as urged to grant Lhc reliefs soughl. 3.0 EVIDENCE AND SUBMISSlO'NS BY THE DEFENDANT 3. 1 't'hc Defenda.rtt. equafly had only one witness~ John Bryford Mbao (PW l), tht. Uni H ead-Ren-1ediHl Assets Manogumcnt {Com.rnercic1ll for tbc Defendant Bank. DW1 's evidence wa~ em bodied in his w1rne~i:1 .s ta tement filed on 2l8t March. 2025, which was ptoducc-d and marked as "D1 ". 3.2 ln h is evidence 1n chfcf, ow1•s eviden ct~ in ch ief highlighted the summary of Lh<~ case. He then e::-xplain cd the relation~hip be tween the Pla intiff and Defendan t., which was d escribed as a bankt;r c u ~t. Qmcr r clationshjp anc,l lhat the Plaintiff rna-in Wned an account with t he Defendant. H~ outlined the obligr-\tions of Lhc fin ~n cial service p rovjders regardin g credit Tcport. as requ ir l!Q by the Bankl.n.g and Financial S-erviees Act No. 7 of 2017: The Banking and Financial Services (Provision •o.f Credit Information and Utilisation of Credit Repc>rtJng Agenc-ie ) DJJ'ecti'Ve; 20204. lt was DWl 's kstimony that the sl:iid law p laces an obligat ion on the Defendant. lo submit posiGv<; a nd negative (:rcdit data to the cn:di ~ reporting a~encv in respect oi ail credh gran led to its customer. 3.~ DWl th en Wl:!r"lt on to narrate the d ispuLe between the Plaintiff and DefendanL1 which has already been t~xpl~.incd above. I wi ll, r.hcrcfot , noL reproduce it. 3.4 Under XXN, DWI Loki the Cow"t Lbat he over1ooked recoverEes on th e commercia l aspects of the bank in terms of bacl foans ~non perfonn1ng loans). He confirmr-d not being aware of any oon pc.,.orformmg loan by Lhc Plaintiff with Lhe b~nk. DWl further confirmed that th e plaintiff's account rep-on Lo C. RB contaitlt!d "vrong data by i11di<-ating Lhal Plaintiff had a nonperforming loan. 3.5 DWl confirmed t.hac be wits .aware that the Defendant had a duty Lo give accurme informa1 ion about clients Lo CRB and that lhe inaccurac wa~ to report tl1at tl1e Plaint.irf had a non-pe1'fo1•ming loan. 3.6 Un dc:r further XX J OW 1 indic1Hed that be as ~ware that the Ddcnda.nt had a tlut.y to t..-n~urc thal it. did not report maccu.rate information to CRB and adm1ttcd that the Defendant d1d not inior1:r1 the client ch.al th· loan wa6 no11-perfo1·rning. r◄'urthcnnore, Ulal he did nol have proof that Lhere was e .:-.irnitw- name, hence, the ntistakc in issue. 3.7 When referred to the Comprehensive ConsUJne-r Rcpnrl a.l page 6 of the Plaintif_fs buncllt: of documents, OW L agret!d that a negative report to CRB c:an be a basis for rejecting~ loan. That il is ooe <> f Lhose t.hsJ c::m be condemned. OW I indic8tcd that he wa::. c:twarc of the procedute sLat t!cJ in paragy-aph 18 and 21 af hi6 ,;,.ritness statement that i~ required to be given to th~ clienl on the procedure lo be follow~d by a borrower whe11 envnCf>11sJy listed Io:r COJ'1 ecling nc!g<lHvc credit data. DWl conc.:edc.-d that the procedure was not done. 3.8 Lastly, DWl <;unfirrncd the letter or apology for errorn.:otts listing of the Pia-int-HT to <;RR dated 7 th June, 2024 from the Defendat1L He indicated lhat I he Defendant became aware of 1 he erroneous t'eport on 15'''1 pril, 202.q when the Plaintiff made a complaint a.od that lhc CRH report wa.s made on 20'"' March, 2024. 3,9 There was no RXN and that marked the elo!ie of th<; Defendant's ca::;c::. 3. 10 The DefendRnt filed its submissions on 22nd July, 2025 and begun by giving the background of Lhe matter and highlighting I.ht": evidence. on reooru, whic·h T will not reproduce. The! submh1sions were ptesented uncir.r scvrm limbs. Jl6 3.11 '!'he firsc limb of the Plain1ilT's arguments focused on lhe b u rden and standard of JmlOf. Among the aulhorities ci1ed by the Defcndo.nt \ as Lhc cs .. of Tions Kahe:mya v The AttoTney Genera111 , where Lhe Cou rt held i..ha t: "The burden of proof in. civil cases lies on the one who alleges and is required tQ prove the claims on a balance of probabi Hty and can11ot .succc-ecl merely b-ecause the defendant's case or defence ha~ failed. " 3.12 lt V.'(;I.~ submitted that in legal prot:t.'(.-d1ngs the general rule is that.he who alleges must prove. Thul Lhis proposition is surtit-!'t imcs mo,e tc hnic...'\lly cmpressed by stating that the burden of proof rests upon the party who substantially asserts Lhe affirmative of the issue:. the Def endan I sub milled lhal the Plaintiff bt:t-JrR the burden to prove the dc1jms advanced in this malter. 3, 13 OD the slandarcl of proof, the learned au lhors of Phlpson on Evidencce, 15th Editfou1 were quoled, wht--rc I he state at plig 80 1:md 8 l m paragraph 4-35 as folJows: •tThe standard of proof in civil cases ls p,.-oof ort the balance of probabilities. If therefore the eot.dence is such that the t'ribuncil can ~ay «we think lt ntore prob ab le that not» the burden is dbcharged, but if the probabilttfes an: equai i t ts na·t. " 3. 14 The cases of Wilson Masauso Zulu v Avondale Housing Project Limited9 ~ nd Khalid Mohamed v The Attorney General 10 , among others, were aJso reHed upon Lo buttrr.ss the pomt that the burden of proof is on che Plait Liff an d Lhat a plaintiff doe~ not automatically succeed even wher~ a Defr:ndanl docs noi put up a defence. 3.15 It w~s suggestr.d by • 1c Defendan t thal in lhc present case, the Plaintiff has the obligation of proving ~he following is~uc::~: i. Whether a Joan i,l p pliettlion was. in the first pl Rec, made lo Abse by lhe Plaint iff, J17 11. Whethei Lhe Plamtili was denied the loan anplication du<! to th~ negative llsun~ in lhe CR. B report; tmtl iii. Wht'.1 hcT lhe Plaintiff suffered ar1y loss as a n~su lt of the erroneous negativ~ listing. 3.16 Sc-:condly, the Dcfencfanl submitted on weight of <.'Vidcnce. The learned authors <>f Black's Law Dictionary~ among o ther authorities, ,.vcrc adverted LO for th e definition of weight of cvid nee as fol luws; "weight of the evidence. (I 7c) The per$Uasl1umess of som.c euidence in comparison with other evidence ... 0 3. l 7 T was invited to note the holdL1g ul th • case of Mldlande; Brewerios f Pvt) Limited v David Munyonyembe 11 , wherein U1e Supreme Court accepted th e following argument: "'Viva voce e11ldence is also accepted especla.l ly where the oral cvldence appears to be b"r4e and where no reason is given.for suspecting it to be false. ~ 3. 18 The Defendant pt,sil•~d that it had tlcmonstrated lhal the oral testimonies of Lhc wimesses are backed by doc.:umcntruy cvidcnc:e. ll ,vas as~ .. 1::rlcd hat once UH: evidence is reviewed a5 a whole, it will be so L:t>g~nl lhal this Court will arrive at the conclusion U1eL the Plainlifrs case ts of rto mc._-rit and that any IQ~8 allegedly occasioned ca nnot be attributed to the Defendant. 3.19 Thirdly. lhe i~suc: of damages against I h Defendant for breach of s latutory du Ly was addressed. Clauses 2.6 and 2. 7 or the Codel were reproduced and argued that according. to the said provisions► credit providers must tak<.· all rcaso11ably practicable steps lo ensure the accuracy of any CT c!Jt data before submittin~ it. to Lhc Credi! Reference Agency (CRAJ. In tl1ec.~vent ofinac '-lrcltt~ information bdng l!Ubmittcd , a. credit provider shall updak Kuch tlala held i n the database of the CRA as soon as t·easonably pract.icablc!. Jl8 3.20 Fm Lber. Lhat according to clause 2 .7 , a credit provid01 is prcsumtd Lo have contravem:d the Code if i t fails Lo t~kc re"Cls.c>nable and practical steps Lo vcnfy the accuracy of date before submitting il or f~ils to update; the data held in I he c.1>e<lil bureau's database upon discovering any inaccuracies. 3.21 The Ddcndant denic:d br aching Clause 2.3 of the Codcl. ll wa~ submitted that according to the Code2 ~ a. crt.--dit provider i:. expected Lo give wnLLen notification to a borrower if their a<.:count goes in default. As a recommended practice, th is notificallon should b~ sent. \\lilhin 30 da.ys from the dale; the default. occur$. Further, Lhat Lhe notice must inforn.1 Lhc: borrow r Lha4 unless the full amt>-un iu def~ult is ,epaid wllhm 60 da '!-1 from the default date, the: individual's account data may be rclairtcd by H1 CAA fat «m extended penod, 3.22 In addressing the la\v nn breach of c:it ~lucory duty, the Ddcndru1L quoted a passage from an article by Neil Foswr entitled "The Merits of the Ci-.il Action for Breach of Statutory Duty" in The Sydney Law Review, 201 l3 Lo emphasise che point that in m•cry cas<.· wh r~ a ~talulc enacts or prohibits a Lhirlg for the b~cfit of a person, he shall have a remedy upon U1e same statute for Lhe thing enacted for his advantag •5 or the u~(;ompcnse of a. wrong done Lo h im conLnuy to tbe ,said law. 3.23 Th e Defendant conceded that lhe Pla.mtiff, a~ a customer of the Ddendf'Ulc who acLed an 1 he capacity of credit provider, belonged to Lhc class of penums to who.1n the duties uncler clauses 2.3, 2.6 and 2. 7 of the Code1 wet'~ dt~;i d y owed. IL was also conceded Lhu,t the Defendant was ur1der f;l clear ducy LO <.'Qmply with the obligations set ont in clauses 2 .3, 2.6 and 2.7 of the Code1 • The Dcfendan1 accepted 1hal 1t was required to truce all re~sonnbly prncticable 5.t cps Lo ensure the accuracy of any credit data bcfot'e ::.upplying i. Io the J19 CRA, a nd to updat~ such data promptJy- upou d iscoverin g any maccurHcy. 3.~4 Regarding clause 2.3 or the Code1 , lhe Ocfcnd~nt conceded that iL was nol required to issue a d efault nul1fica.tion because the PlairiillI wa.s never, in fact, a d efat.tltm~ borrower. Th .._.1 his oanH-: was sim ply mistakenly included due lo au error as hi.s 111.st name was sitnil.ar to lhaL of another listed dcfaulL.irlg customer. ll was cbuificd thal U1e ~ational Rcgistrt:1 on Card for the defau lting nrum : was yui.dvcrtcntly aUach cd Lo the PlainLiff•s repor"t given the name similarily. hc;ncc pu1lin g the def suiters loa n detail:; onlo th e PiruntiIT's re orl (The underlined was counsel's e~idcn ce from the bar r,ts DW I never •ave su c h a lt!stimonyl. U was argited that in lhe circum~tances, Lhc duty to notify un<lc.:r clause 2.3 w a~ n ever triggi red. At:corclingly. the Ocfcnd&1t cannot be said to have owed that duty lo the Pla inlifl'. 3.25 OJJ whether tht! Dct·ndant \; fi~ 1n breach of stalutory ducy, i i was con tended Uwt the Defendan t did not breach clauses 2.3, 2.6 and 2. 7 oft.he Code 1 . The Ddcndant avowed that it look all reasonable and practic~ble step:. to ensu re Lhc- accutacy of any credit da.ta beiorc s llbmitting il to the CRA. Purthern,orr, t.ha.r iL would only be p1· sumed to he.: in breach of I he Code: jf it failed lo t ake J"Cason a uk pr.l:lc-:1ical steps Lo ch eck Lhe accuracy of rhc daLa before providmg it or if il failed o update the data held in the database of the 'RA aft •r discovering such ir1occuracy. 3.26 Ct is the Defendant's position Lhat lhis is clearly c1 reasonable and honest mistake fa simple transposition ornames in a data c:iumpj a~ opposed td rl breach of d u t.y and tbal I he law i i self envisages lhnf su ch rnis1akcs can occur. Refctencc was made to Parts 7 and 8 of the Credit Reporting Act No. 8 of 20182, which ~tout a <lc!J.liled me.,chanism for r ectifying f:rroneous crcdil infonnatitrn . The J20 l)cfendart l in paracular quoted Section 39 (lt of the Credit Reporting Ac-t2 , which provjdcs a~ follows: "( 1) A data subject sh.all ha.vs the right to cha llcnge a credit reporting agimcy, in wrl.tlng, on the Inf onnatt.on contained in a credit repo·rt, wht?re a data subject is of the opinion that the lnformatwn. is inaccurate, incomplct.e or outdaud. (2} Where a credit reporting agency ls notified of a challenge, in accordance with subsection (1); the ct""edit rep-0rtlng agency shall• (a) within five ru:iys of receiving the notice, send to a credit provider a notice cu:compct.nied by an endorsed copy of a credit report, ~rpecifying the challenged triforma.tion; and (b) wher'tJ the inaccuracy or incomplt:tc-nes-S of the information is attributed to a credit reporting agency, conduct cut investigation within fourteen days of receiving the notification." 3.27 The Defendanl wc11l on lo quote Section 39 (4) of the Credit Reporting Act2 , wh ich provides as follows: "Where a credit provider receives a notice, referred to in $Ubsection (3) (a), the credit pr-ovid•r shall, withtn thirty days of receiving the notice, conduct an investigation into the challenged information and give the credit reporting agency a written report advising whether the challenged iriformation is to be deleted, corrected or mainudncd, as the cas~ may be.,, 3.28 Tt w~s Lhc Defendant•~ i:;ubmiss.ion th ·-1t DW l adtmltcd that Lhc Pla1n riffwas erroneously listed on the CRB report f\.nd did nol inform the Plaintiff of the uegativl! foilin g. Further, hat on the following d~y on i6rl1 April. 2024, 1h ~ Ddcndan resu bmitted the 2011 March, 2024 J21 CRB reporl dclisting the Plaintiff from the 11egati.vc listing, U1ereby resolving the issue wilhin 48 hours of th e Phunw:rs complain t. 3.29 The Dcfcndartl fu.rthcr ar-gut..-d th a the obligation under clause 2.3 or the Code• docs not cxtt:n d to sirualions Ln olvin g an erroneous h~ting. IL wa:-t submitted Lhat the Defendan l wa.s nol required to issue a dcfaull not.ific1:1Lion becau se lhc Plaintiff was never, tn facr1 a defaulting bonower . Accor<lins Lo the Defendant., the Plait1tifrs name was simply mistakenly included dui: to an CJror as his name was similar Le> Lhal of another listed customer. The DefencianL a~scrted th!:lt in U1ese cirC\lrnstanccs, the duly to not ify undei clause 2.3 was never Lriggcred, and as such, Lhc r>cfcndarlL cannol be held to hav b~~c·hcd a tatuwry ducy under that cla u~c. 3.30 Ort w hether the P ainti1f suffe red dru-nagc s temm ing from the Defendant'~ breach o( du ly, the D~fcndanl's posiLioo is thaL the Plaintiff has failed lo adduce any cvidencb before t.hiR Court dernunstraung that it suffered actual loss or damage as a rcsulL of Lhc erroneou s negative listin g. 3.3 1 It was submitted Lhat the Pla in tiff must. establish a. clir<.-ct casual link between Lhc breach and the harm, apply the "!Jul for" tcsL, a11cl show that t.hc type of damage was not too remote, thitl is, i l m u ~t have been a fores al>k consequertce of the brc-ach and c;'\Jbmittccl that wilhoul saasfy1 n g Lhese requirements, a drum for h reach of ~tatu to1-y du ty cannoL suc:.c~. even ir a breach is ea1-'\bl.ish ed. 3.32 The Deft:ndant conlendc:d that PWl did nol adduce any eviden ce t.o support the claim 1h at a. loan application wa~ actually mc;1rlc in the fir~t place. IL was submitted 1hat the PWl during Lrial did not pr()duce any evid<'nce to show lhr-it ABSA bank denied hnn a facility on the b~si~ of the n egative listin g. Addilionally, th tll PW 1 failc-d to produce any evidt:n~ demonstrating that hi~ busine~~ fHik:d to becomr operational in Mala,11,,j b y l st July, 2024 due Lo th e alleged J22 tlt!ga□ve listing a~ there was no evfdenee prcsent<;d to estabhsh the exister1cc of the purporlC'd Malawian company. 3 33 1-<'m·cher, the Ddcndant contended th~t a negf\tive listing docs not automatically resu lt in credit denia l. The obligations under the Ba11king and Financial Services Act No. 7 of 2-017: The Banking and Financial Services (Provision •e>f Credlt Information and Utilisation of Credit Reporting Agencies) Directive, 20204 we.re rcproduc d as follows: "A Financial service p~uide shall: Submit credit information of a data subject to whom it has provided ere di t to a credit reportfrtg qgency; Uu the services of a credit reporllng agency when assessing a. cu.stomer who has applied for credit where the amount of credit t.o be ex.tended cx..ceeds ZMW 500 or tts equivalent." 3.34 Accordiug to U1c Dcfcn<lant, lhe Direct ive~ do not impos~ a lcgw obligation to rt:fuse cr<---dit solely on th~ basis of a nt!°galivl! cn~dit report. lnstcsd1 the report forms tht: bash. upon which a fin ancial ~t:rviec providet' may eJct:t lo advance credit c1.llracting f;l h igher int.crest or more sh'ingent conditions in comparison to crechl advanced to a kss risky borrower. The O fondant ca.lkd lo aid the Bank of Zambia Guidance . Note 1 of 2014- Utilisa.tion of the Cr-edit Reporting System4 o contend thal t.he •-:rcdit re.porting sy.!'!Lcm is not a blt.1C":klisli.ng system. That i-athcr1 i L is an information sharing mechanism aim rl at minimising informatiotl as)'Illlb t.ry bctwe -"n borrowt~rs and knders. The Defendant posited Lhat nc-gat ive listin g, such as records of clefaulL, arc intended to supplement and not dicta te the credi t provider's independent assessment 3.35 'rhe Ddendant also called to aid I.he Savettda. case (suprc.q to bultrr.ss the point I.hat the purpo e of mandi.\lor y credit .repo1·tm~ wa~ to corrcc past weaknesses m credit os:scssn1cn t practices and promok due diligence not to institute:: an exd usionary regimt:, J23 F L,JJ1.hcr. that u,e r-cgulatory intcnl is clearly nnc of r isk managem t~nt and not bor1""0wer punishment. It \\l'Qli stated that lhe above backdrop of law confirms thal a negative listing doe~ not operate as a l>lanket deniaJ of credit but as one factor among 1t1any in the credil assessmc:n t process. 3.36 The fourth limb of Lht~ Ddc;n<lant's submissions was on damaacs for negligence. The defi nition of negllgcnc;c~ offered by 1.hc learn ed aulhors of Black's Law Dictionary {~-upro) was quot ed as foll<>ws: HThe failure. to exercise the standard of care that a reasonably prudent person would ha1Je exer,ci$ed in a. similar situation; any conduct that falls below the legal $tandard establi.slied to protect others again.st unreasonable risk of harm, except for conduct that is lntenti.onal(y, wantottlyi or wi lfutl.y di $N/gard of other1s rights.» 3.37 The case o r Mwa:ti&a v Zambian Breweries Ptc12 was adverted 10 in bulLrcl:lsin g the point that Lo ~uccccd in a ncgligc!ne<: claim, a claimant. must prove the following clements: duly of c:arc, breach of duly of care, and con~uent1al loss/damage. The Mwausa case fsupra) was also relied upoo to atgl.l,~ that the law of f'lcgligencc place::s the burden on th e Plairniff Lo prove every elerner1L or th<! ton. J t ~·I:! ti arg1J cd Lhat the Plain liff fail~d to discharge thi ~ b u r d en m that he failed to adduce evidence dRborating the loss auITeTcd a_s a result. of the Dcfcnda.t1t l!rroncous]y submit. Ung imtcc~uratc mformation to the CRA. 3.38 Th~ D ,.f ndant fW'ther subrnitled rnat a victim of a br,each of Lon who claims dan1ages as r.1 res ult of U1e breach of duty is under an obhgatton to take rca,$onab1e steps to rni1jgatc f he loss he suffered. The case of Tyson Mtonga v Watten N'g'ambi 1a was relied upon to cerne11 L the point. J2.(1 3.39 It was moo1e<:l I hat the Plair1Liff h c1cl a11 option of going bJ:1ck to Absa after lhc: erroneous listing was rec li fkd co appl for the loan agajn cUt6i\J ming that a lom1 application was indeed made in the first place. urthcr, tiiat the Pla.i ritill could httve appN,H~hcd Lhe Defendanl for simila.i facm y sfi ·r th erroneous listing was .rectified hul ekcted not to do so. I was asked to note that 1he rccti!icalion happened \. Vi.thin 48 hours of a cou1µlaint and ccrtai.nJy cnitigalmn could have ht~tm effected, According t() the Defendant, the Plaintiff admiUcd during trial thal he look no steps to miliga lc~ the loss alleged to have been suffered. ln the premise, th Defondanl contended Lhet the Plaintiff i~ not entitled to an_ damages for loss, Alt.em~tfvc. the Defond anL submitted thal should Lhc Court fu1d Lhal Lhe Piruntiff is t:n lilk:d Lo damages, Lh~n ht~ ~houJd be awarded norninal clamagesi hccause t h e Deren d::-1t1I took prompt s l{:ps to rectify the error and Lht: Plain tiff did not suffer an aduaJ loss as a. result . 3.40 The fifth limb of lhc Defendimt's submissions addrc~scc:l. the isSUl! ot damages for inconvenience. The Ddcnd ant.t among oth<;r auU1ori lics, ci1cd the case of Attorney Oeneral v Kat..dshj Kapandula,14 lo argue the point that courts in granting d~m~gcs for inconvenience ,,viJl never grant. darn.ages COVl!ring the inconvenien ce of efforts ttiudt! in pursuing the claim. Furth er, il was asserted Lh~L damages for Jnc:onvcnicncc will be awarded ~o a claimant ou]y where the cou r l is sallsficd that the alleged inconvcnie11ce we~ 1 he direct and proximate conscquer1ce of» breach of conl1 acL or ft torlaous act. The Defendant contended lhal t·he inconvenience in be present case was self-inflicted as the Plaintiff look no steps to 11:1iligale any potert L-ial loss despite Lhe issue being rec · fied wilhin approx.iml'\.te)y 48 h ours of bis complaint. 3.41 the !Si.xlh limb of the Defendant 's submisb;on was on interest 011 sums rourid due. 'l'hc Defendant adverted lo the repealed Section 2 of'tht? Judgment Act, Chapter 81 of the Laws of Zamb~5 insceod of the one e~ amended by the Judgment fAme.11d.ment) A<:t No. 16 of 1997. IL was submitted Lha t th e Plaintifr& claim for intere~t. is dependent on the Court's finding in his favour, 3.42 Lastly. the Defendan t submitted on the issue of cost.~ hy citing the cases or YB and F Transport LimJted v Supersonic Moto:rs Limlted16 and that of Emmanuel Mutale v Zambia Co·nsolid.ated Copper Mines Limlted1 & Lo bt.ttlTcss the µ,oin L that the a-. ard of costs is discretioml1)' 1-1nd costs are normally awarded to the ~ucccssful pw-Ly Lo litigation. The DefondantJs view i:!i rhat the PJaintiff's acli on is \,dthoul me1·it. 4.0 PLAINTIFF'S SUBMISSIONS IN REPLY .ii .1 The Plaintiff filed ~u bmi$l'5ions m reply on J 5,1, August, 2025. ·rnc Plaintiff addrt~'!'lscd the Defenclatn's position thaL he.: d id not d is<.:h arg' the burden and sland~rd of proof as Lo wJ,cthcr th ere was hr-each of statutory dLI Ly. ScveraJ autboiiue-s wc:1·c cited including the case of Zainbian Breweries Plc v Maritime Freight and Forward Limitedl7, where lhc Supreme held thac "Ths phrase 'burden of proof desert.bes the duty to establi$h a ca.se or a fact.. The standard of proof is the d~gree to which proof must be establ-tshed. .. " 4.2 Jt was suh1t:11ttt:d eh::cil the Plamtiff h.a~ d1~charged Lhe burden of proof an<l Lha.t he is entitled Lo judgment in his favour, lt \1 as conLend<:d that Lhe evidence :.ihows. that the fa[~e report 'Was lhc basis of lhe loan rejeclion by Absa Bank, as a C ~B report jssucd to him from Absa Bank is on record SL p~gcs 6 and 7 of the Plaintiff's bundle of documents. Further, thaL th e Plaintiff has also established lhH L c was inconvenienced 1mci put to loss as a ref)\ t of the faJae report.. 4.3 lt was tht! Plr:tintiffs contcnlion that ~~,vt:n I he nature of thi s matter, which primarily involves, inter aiia, a breach of sea.tu Lory obligation, J?6 o_ legal pr ·~t. Jm p l1on should b~ applied, Lhereby shifang the burden or proof to Lhc Defendar1L The c~sc of Nimmo v Afexander Cowan & Son Limited 18. was adverted to where Lhc House of Lord5 affinnec.3 Lhal unless t h e sta1utc expressly states otherwise, Lhc burden lies v.i 1 the claimanL. However, presuinplions may a.rh«: depcndin~ on the structu re and purpose of Lhe st.atvtc or rc~u1atory fra.n1ework. 4 .4 The dcfini1ion of prt!SUrnption from the learned author of lllack1s La.w Dictionary1 s•• Edition:i was resor ted Lo, wh ic;h wru, reproduced as follows: "A l..e9al inference or assumption thttt a fact exisb1 based on the known or proven existence of some 0th.er fact ... A th~ burden o l"Oduction or ;-suasion to the opposfng.. Rarty, who can then attempt to overcorrnJ. it with other etn.dence.,, (undcrlin<..-d and mphasiscd by tht: Pla i nLir~. 4.5 Furl h.er, lhc PlaiJ."'lti.fT rcf<.:m:cl le, the mu·oducticm or the Credit Data (Privacy) Code of 20061, which stipuJatcs that: "A breach o the Code b a data user rna.y_gjue rl.se to a presu Zambia . a a lnst user in an a.l_.c.:.;...:::.===:3..:---== .4$ide from legal proceedings, failure t.o observe th.i$ Code of Practf.cc by a data u.ser wifl weigh unfavourably again.rt thl! data user in any case before the Registrar cin.d or the Bank.,, (underlined and cmµhasistd by the Plalt1LifD. 4.6 1t was argued that while the gr.ncr:tl burden lir. R Qll the cla.iman l . in cases mvolving alleged breaches of the Codc;.1 , the b u rden may shift co c.he dat.a usr:r, in this particulai rru,iUcr, the DefendRnt, lo rebut Lh~t prc:sumplton. The Plainllff r,.llcgcd that in t h is matter, it is not iu <loul>L thal the defendant bc'eac:hecl its oode by providing inaocul'ate crc::clit data, thereby givit'lg ri~c to th e p resumptior Jn 4.7 T h · learned auLhors of flalsbury's Laws of England 5 t1a Edition, Volume 976 at paT~pb 506 were quoted as follows : "An indiuidual may sue for a breach of statutory d11.ty only if he falls within thtr class <>f persons upon whom the .statute was intended to confer pri.vate rl.glds of actions. 11 .8 The Plaint.ill rdc:rr ·ct to lhe introduc1ion of the Code. which cxplicitl suiLcs th al: "The Code i,$ designed to provide practical guidance to credit data users ln Zambia in the handling of credit data~ It deal.s with collection, accuracy, u.se, security and access and correction issues ct.s they relate to data of a person who has acce&sed credit, or has btten an applfcant for credit. The Code also covers credit reference serulce providers and credit pr-oviders in their dealing with credit reference services and debt collection agencie$,,, 4.9 Further rc fcT ·nc-c was made lo clauses 1.8 and 1.9 of the Code l for Lhc dcfiniuon of C!'t!<lit cb1t~ and crcclJL rcfc.:n.!ncc agency. lt was argued Lhat tht! Dcfcndanl as a bank, crcdiL provider, snct credit data user, !811::i squarely withm 1.hc ~<:ope of the Code1 It was submitted tluH 8ny contravention gives rise to :=i rebutt.ul pres um p t ion oi wrongdoirtg a n d ~hifting of the cvidcnllary burden. The PlRintill argued Lb.at Lht: Defendant has not produced suffici~nt evidence Lo overcorru: the prcsum.ption of breach ansing from the in::iccurate listing. 4. 10 It was submi tted that lhe Plain ·rr has establi~hcd that the DekndR.nl did not t.aJce the ncccssruy steps lo pmv1de tlct;urate crc<lit data and lhat by the production of the CRB rcpo1·t show~ that the inac.:c.: uralc: redil data was known hy Absa Bank at h r. time hls loon opplication was rejected. 4, ll The P aintiff rebutted the Defen dant's avcnnen t I hat the PJaintifrs rtame was siinilar to another client as i· fRilcd to produce any J28 evidence in support of this defcnc . Thai DW I 's 'h'ltncss stalt!men~ con.finned that a negat.iv1: CRB rcporl is c1 bas.is upon whic•h a finan cis 1 institution ma d eny credit. Therefore, the Defendant fruled Lo rebut tbe p.r'esumpt.ion of liabiliry arising from the breach of its duty to proviclt! ~(.'Curate infom1atio1L 4.12 On the i~suc of lhe breach of ~Lat.u lory duty, the Plainbff maintained th aL the Dcfcnd.mt's inac:curaJc listing of the Plaintiff w1lh I.he Cl~B w,id e from being pa.knlly 11cgligcnr also ccmslirutecl a bre~eh of ~Latutory du ty. A p1:1~s-A_gc from Lhe ]earned author's cf Halsbury's Laws of England, sth 8ditlon, VolUD10 97-<. at parag-rapb 500 was 1ep1oduccd as follows: ~Breach of statutory duty is Q. Tt independent tort recognised .at comrnon law. In order to succeed the claima11t mqst establtsh,· a. breach of statutory obligcttiori which, on the pr:oper construction of the statute,, was ltttend-ed to confer priv<1te rights of .action upon a class of persons- of whom he is one; mjury or da.mqge of a kt nd aga:in$t which the statute was designed to git>e protection; and that the b,.-each of statutory Qbligation caused or rnaterl.ally contributed to that infury or dam.age~ or .(e)(. Ceptionally) to the risk of that i,yury or dcunage." 4. 13 .ft"'urchennort:, the: Plaintiff relied on I he Jcari,ed a u Lhors of Halsbury's Laws of England, 5ui Edition, Volume 976 at paragraph 504 a.nd Volume 217 at paragraph 270 o buttress i.ht: p<>i nL that the relevant con~iderat:Jons for bdnging a claim for bre.;ic:h of statutory duty indud<;: whether Lhe ~tstutc protect::. a l<>pcdfic class of per"Son~ or t he public a.t large; whether a staLutory remedy exisls; whether the breacl1 is capable of causing compensabk d.:tmngc; nnd the statute's gene ral purpi>r.c ul. Jjt~t. Livut:S. Atl<lit.ionslty, tl1at such act.ion:i are generally subJed IQ the same rules or Court and Proc:c,:,di~rc as other kinds of m~ tle r-s, J ?9 4. 14 It was the Plaintiffs submission 1h at t.he po~i tinn of the I w rn Zambia 1s Lh~I the breach of a statuco1y duty gives n~e to civil liability. That this app1it!~ <' qually to du Lic..:s imposed on fina.ucial in~thutions 1111dcr Lhc Zambian floanci.;1( regulator framewo1 k such a~ th e Credit Data Privacy Code of 20061 Tu btJLl rcss the point, he learned au thors of Atklns' Court Forms. 2 °.s Edition, Volume 11(2) (2001t8 were quoted, here- I hey state at paragraph 82 that: C4A1'ty person who is affected b-y a breach of a safety regulation is entitled to treat that breach (1$ a breac h o statuto du.ty and to sue. Liabi1it cannot be excluded or limited unless this ts rovidsd o r bt the particular rcqtLlat:ion itse . " {underlim."'CI and empha!.1.scd by Lhe Plaintifi). 4 .15 it was stJbmitted thal while bunks ru- under ei statutory Qbligatiou lo proVJdc credit data lo the CRB, Lhey arc equal) under a duty Lo en sure lh1::1l such information i~ Jtccurate. The Plaintiff reft!rrcd to clause 2 .30 and 2.3 1 of the Code 1 • A pct:.:.agc from Lhe learned authors of Halsbury's L~w of En glan d Slli ~ditlon, Volume 9 7 6 at paragraph 505 wa~ cited to buttress the pomt that, where a statute creates a sdf-contained code in 1Nhich fines arc; only one method o( enforcement for which prnvi~ion 1s made, Lhat is an indi01lor thac nq riv-ii cause of acL10n ~nses, It waa ~tbmiltcd Lhat the Co<le re la1i11g to the pre~ent c-a.sc is not a sdf-conlained rcgtmc. Furtl1er, that it is designc;rl to complement gen< .. ral starutori and conunort law principl sand obligations, such ~s those at clauses 2 .30 and 2.31 of the Code and Section 72 of the Data P(otectlon Ac ti, which impose an obligHCion to verify we Yc(."uracy of cr~dtl dat..'l befoTC shanng it and Lo promptly correct inaccuracies. 4 .16 [n furtht~r reply, the Plain Liff argued lha. L in addition to sla l utory brf'-ach, the conduct of the Defendant Ba.nk constitutes u~~lig...:ucc. Rdj anc,e was pm<.:cd on the case of Stanhic Bank ZQ.mbia 1.imlte d J30 v A. S. & C . Ente.rpdses and Othes:s19, where the Court ob:scrvccl lhat: u A ba1ucer is .u n der a statuto to act in ood aitlt and without negligence and .ixercise such ~re and skill a5 ~ dd be exercised b a reasonable bank tutd as such, that reas<JnQble skill tLttd care includes -in appropriate circumstances stu~.h as in this case, ~ duty to inquire about cu1;tomq,-s ... ,, jUndel'liricd and emphasised by the Plain l i fl). '1 .17 Further reference was made lo the~ Stanbie Bank Zambia cage (~r.4pra), wh ere t he Suprct1'H! Courl ciling lbe case of Tbackwell v Ba:tclays Bank'20, guicJ~d Lhul; "The onus of disproving negl'igent!c Zill-S in the collecting bank." 4.18 ·rhr; PJaintiff maintained that Lh~ Defendant C<.)rnm iltcd o. statutory wrong when ic ftir'nit-h<."Cl inaccurate credit data to th e CRB in rt:spt.-ct of U1e Plain tiff wilhoui first verifying lht! 1,1ccuracy of that information and without issuing a proper defaulL notice if a t all the Plaiatirr•~ accounl \i as in default a~ n:q1.tircd by Clause 2 .6, 2.7. 2.30. 2 .31 and DPPl and DP:P2 of the Cl'edJt Data fPrlvacyf Code1 • t i 19 The Plaintiff ~gi.ica hat the Defeudanl had a duty Lo provide the Pl aint.iff wit h notice of any aU~ed default before submitti n g any negalive crccli~ information Lo I.he CRB. Clause 2 .3 of the Code1 was referred to. It\) .ls subm itted that the Defendanes failU1-e tt> give notice demonsl.rs.tcs a gross Jack of reasonable ca.cc and skill. 4.20 Furth er, the PJaint.iff addressed the- iRsu.c of the Dcfcndant•s submission on damages for st.al,llto1y breach, negligence and inconveniertce. The c;a St" of Zambia National l3uilding Society v Nnyundo.21 wn:; d t~d to emph asise 1.hc point hat the eh~l'!W~c ttf dam!l.gcR has always been that I.he inj ured pa.t'ty s}10uk l be put1 as IJl far as monetary cot:n~ n sation can go 1 1n about the srune pos ition he would ha~'e lx."'en ha.cl he not been inju red . 4 .21 Section 72 or the Dam Protection Act No. 3 of 20212 was ta lha.t Lhc :,cction proYid~s a right to argue adverted lo, colllpensl¼Lion where a data suojc~ct suffer drunagt! from disclosure of inaocurate information. The provision was quoted us follows: "A data subject whq has suffered damage as a rcsu lt of «n tnfrlngcment of that data S11.bje1::t/ s right under this Act may receive compensotton from the dam cotttro.ller or data processor q.s determinf!d by a court of competent jurisdiction for the darnage ¥Ujfered ... 4.22 It was further subrnitt..<."d lhat the Joss of funding and the dcl~y in Lbe P1ainliff's business interests tesu1t<~ci in suITcring, whkhju~Lifies daftlagt:s for inconvenience, a...cs esI Hhlishcd in the case of Zambia. Sta.te l11-surance Corporation v Serios Farms (::1upra) 4.23 Lastly, the Plaintiff replied to the issue of costs. lt was submitlcd lh~1 the! g "ncral rule as LO cost 1s I hat costs ordinarily follow the cvcnc and nju dge has un lim ited discretion t,q m ake any ordet bl!'> to costs thaL ht: c.:unside,~ th e Justice of the <."a.:;.t; demands . The cas<: of Mutate v Zambia Con!i.olidated Copper Mi.nes22 and Lht! YB al\d F Transport case (supra) were dkd to butu·css t1u: point. 4.24 'l'he Pbdl'Jtiff aJso referred LO the cais,! of Road Dev-elopmcnt Agency v Agro Fuel Investment Limited2. J to emphs ~isc the poin t that t.o depart from the principle of costs follow th e <:vcnL. ther mUsl be good rel.loon~. It was submitted that. t l>hould judge in ravnllr nf t11e Pla intiff as clauned in the writ of snmmons. 5 ~0 ANALYSIS AND DECISION 5.1 I have: ciuly con sidered U1c ~vtdt!1 tl:c ;;utd s ubt11 is~ion~ filed by lh par ties, 1 ,.,ish Lo rertd~d mysdf lhat in civ□ GJ!it;s ltic burdell of proof rests <>r1 h~ who a lleges and c.he sra.r~darrl is on a balatiet! of J32. p robabilities. This po!,;tion is supported by a plethora M cases such as Khalid Mohamed v The Attorney-General (supra). Wilson Masauso . Zulu V Avondale Housing Project Limited tsuprat and Galu.nia Fa~m!J Limited v Ns:tional Milling Company Limited24• 5 .2 Addition ally, th e learned authors of Phip.son 011 Evidence 19th Edition9 al page 195 on parngraph 6-56 explain the sLlmdard of proof iri civil ca!;c5 a~ folJO\~·s : {'The stand,i.rd of proof in civil case.s is generally proof on the balance of probabilities. II, therefore, the evidence is such that the trlbtt.nal w o uld !I0.1/ "we think it more probable than not", Che burden is discharged, but if the probabilities are eqt.tal it is ~t. u 5.3 The <mu~ is 1 therefore, on th e P1ciin tiff herein to prove on a balatlct: of probabilities th at iL is t:r)l.iLkd lo all the reliefs ~ought. !i.4 The foll oi,vit,g i ssue!-\ a rc not in dispute: 5.4. 1 Th~1 ~he Plaint:ufwns a c u ~tomcr and an account holder of chc DeLcndan l Bau k; 5.4.2 That the Defendant ~ubmtlted an in~ccuratc credit refe::rc n cc report cm lht: Pl fllintiff to the CRB on 20111 March , 202.3. wh ich indic~HI 1.--n. that the Plaintiff had a personal not1-perforrning accou.nl with the Defendan t; 5.4.3 'I'hat th e P!airttiff ra-iR. Cd a verbal com phdnt with th e Dcfenda.nL on l 5 1n A_pnl, 2024 over Ute CRH report; 5.4 .4 That U1e Dcfonchmt. resubmitted e rec.lificd report lo lhcCRB after which the Plaintiff w1;1.s dclistcd from negttlivc listing and on l81h April, 20 24 , lhc Defendant i:ihaicd the tha t reporc with c.he Pla.inliff. 5.5 Whatis in tfo,pok js whcti1cr lhe Defe11d1,1111 'i:.conducl was in brcR~h of a alawLory rluty and also negligent and whetl1t:1 it h;d lo Urn Plaintiff Sl~ffcdn g loss/drunage. The issues for determinrt.tion as I see i arc as follows: B3 aJ Whether th e Defen dant's rt!p<>rting or 1naccu t'ate information on the Plai.nLiffto Lhc CRB was in breach of a ~ta l:\Jlory duly u1..s u vis clause 2.3, 2.6, 2.7. 2.30 a nd 2.3 of lhe Cl'·edil Dal~ Wrivacy) Code and that Lhcrc was neglJgence by the Def en d ant; and b) WhctheJ Lhc Plainliff ha~ demonstrated ar1y com,t!qucntiaJ damage or los.s ern~n~4ing from that breach or negligence itt ord~r Lo have W1 actionable cause or action . 5.6 'l'o begin with. the dispute he rein od1ii11a1 C!s from the report giv~n by 1hc D ·fcndanl on the Plain ti. IT to CRB. Cn..-dil referencing is a practice th..1.t has become cntren ch~d in th<: Zambian banking and l'inancial services sector. Ac<.-ordi ng t-o ih c Ba~k of Zambia Guidanc~ Note 1 of 2014- Utilisation of tho Credit Reportlng Syst-cm Cr,edit4: «The introduction of the credit reporting systen1 wq$ mottvate-d by, int.er a[ia, the objective to enh.a.n~e positive credit culture and address the problc.tn of persistently hlgh cost and low access to credit by minimising i'l{ormation a.symmetries t.n the crl!d-it market.. ,, 5.7 Credil referen cir1g i8 mainly govc~rnc.:d by the Credit Reporting Act3 u n d sc:ven~l regulatory statements/guidelines i~sucd hy tbc Bank of Zambui. Secti,ori 17 of th e Credlt Reporting Act3 provides as fo11m,..-s; u 17. ( l)' The Bank shall 4$tab lis~ m.q:i11tain and operd.te a Credit Registry which shall be a. database for credit informatlon. (2} A credtt provider regulat.ed under the Banking and Finan.cia.l Services '4ct, ZOl 7 sha.ll &upply credit information to the Credit Registry. (3) The Bank may impose the obligation to supply credit f-nform.aH.on to t he Credit Regis try on other credit providers. (4) The Bank shall pre.scribe the category of persons who mag access and tha manner in wilt.ch information.from the Credit Registry may be accessed. (5) A person who contravenes this section commits an offence and is liable, on convictlott, to a fine not exceeding one hundred thousand penalty units or t.o imprlsottm.ent for a term not ex<=eeding one year, or to both.» 5.~ Prior to t he cnue:tmcnt of the:: Credit Reporting Act3 , credit 1 efon:ndng wa!i rnt-J i 11ly governed by the Credit Reference Services (Licensing) GuJdelines, 2006 and the Credit Data ~Privacy) Code, 2006 issued by chc Ba.ilk of Zambia pursuant LO i-wction 12!-> of the repealed Banking and Financial Services Act . However, it m u st be incn tioncd thaL th e Credit Reporting Act3 docs nut t!Xprcssly repeal Lhc aforesaid 2006 Bank of Zambia Gu idc•Uncs and Code. 5.9 Furcl1er, i-lft ·r the enactment of The Banking and Financial Services Act of No. 7 of 20176 , the Bank or Zambut issued The Banking and Financial Services (Provision of Credit Information and Utlllsatlon of Credit Reporting Agencies) DirQcUve or 2020 pui-suanl to Section 167 or the aforesaid Act. Th e 2020 Directive withdrew tho Banking and Financial Se"ices Act (Prov~ion ot Credit Data and Ut.i.lua.tion or Credit Reference Servl<:es) Directive of 2008 1 wl11ch had made 1t mandatoty th at all er-edit providers u~c the credit n~rt:rcncc servir.r. as a. ~ound prac:L·ce in credi st;;indflrd and approvpJ (See the Bank of Zambia Guidance Note 1 of 2014 • Utilisation of the Credit Reporting Sy&temJ. 5. 10 Clause 3.0 of Tht! Banking and Financial Services (Provision of c.-cdit Information QDd Utlllaialion of Credit Reporting Ageocjes) Directi'Ve of 20204 sULt.e-1';- as follow:-;: "A financial service provtder shall: i} Submit credit inf oNrtation of a data subject to whom it ha$ provided crf!dit to a credit reporting agency; ii) U:se the sertd.ce-s Qf a credit reporting agency when ass-esstng a customer who hcu applied for cre-dit where the amount of credit to be extended exceeds ZMW 500 or lts equivalent. n 5.11 The above provisions e>f law evidently show lhal financial service prnvid~rs in Zambia arc rcqwrcd Lo submit credic in formaliotL lo a c:rcdil rcportin,, agency of a data su bj<·ct lo whom th y have provided crc:d1t. Th e Plaintiff stated thaL he applied for a loan facility of ZMW 850 ►000.00 a l Absa on 9lh April, 2024. H1:. rurthc·r stated that:on 12Lll April, 2024, Absa revctl<..>d lo him and advi5cd thar it could not iS-suc.: him Lhc Joan facility hccausc the- CRB rcpo1 L submitted by th· Defendant showed that he had a person al non-p ·rfonning account with Lhc Ddcndant in the sum of ZMW 330>000.00. 5.12 Accor d,n g to lhe Plaintiff, the purpose of the loa n was lo, inter ali'4. facilitate the l!~lablishmenl of uu~incss ope; ation~ m Malav,•i . \\rtth the itllenlion of mcorporating a s ubs idi ary of FO13s Scientific Limilcd, a Zambiau complUly m wbich h • is a majority shareholder, director and Cb id 11:xccutive Officer. ~rhc Plainlill furth er gave Lhc po~ition Lhal lhc b1.1sines~ operation m Malawi ,vas to b cume fully operational b I have pcmscd Lhrough th Pla1ntfffs bundle or documents and · !!L ,July, 202"1 . 5.13 rtoled that the CRB report daled 10th April, 202J1 at page 6 inde::c:d shows a non pt::rfonmog account with the principal amount ofZMW 330,000.00. The report also ~hnws a beJan c;c amount of ZMW 379,467.6 I and ru-reat amount of ZM\V 83 ►3~0.86. I also noted Lhe corrected C RB report on page 8 to 10 of the Plam Hf's bundlt: of documentn !Jhowmg no a rrear~ wilh the p1irn~ipal a.11wu11t. of ZMW 150,000.00. J36 5.14 J1 has alread y b een c~tahliRhcd that. a.ocoruing Lo Clause 3.0 of Tho Banking and FinanciaJ Servkes (Pro,rision o(Credit Information and Utilisation of Credit Reporting Agencies) Directive of 2 0 2.,., Gnanci~J ~crv1cc providers in Zambia arc required to submi t crcdil inr<>rmaUon of a data subjecL to wh r,m the)· have pro"id ~ <'1-cdJ t to a credit reporting agen cy. 5.15 ll is tto l i.n di:ipulc th at 1hc Defendant 1i:. "-' ~ n king uistitut..ion nd 1s duly licenced under the Banklng and Financial Set'Vices Acto, The Ac:.t provides for the 1-eguJaUo n snd supcrviston o f banking and unan CJal services hl Zambia . S<,ction 17 12) or the C-.-ed.lt Reporting Act•\ which wt,ts r ~produced above, is clear Lh at .:1 credit t)rovidet regulated under the Banking- and F inandal Services Aot6 , sh all ~upply credit. information lo the Credh Rcgis1.ry. 5.16 Clause 2.3 of the Credit Data (Privacy)1 Code of 2006 L suues th:¼t: "Where the ~ i t prouicu,.r h4S provtdcd cr~dit to a person artd the account i.!J subsequently in default., the. credit prollider shall, as a rec:,ommended practice, give to such person within 3 0 days from the date •Of d.cft:1:t1.lt a written reminder stating that unless the Qmount in default is fully repaid b4!!fore the expiry of 60 days from the date of the defaidt the person sh«l1 be liable to hCUJe his account data retained by CRA until the expiry of 7 years from tho d4te of f{nal settlement of the amount in default or years from the date of the person's discharge fro,n bankruptcy as llOt;ified to the CRA, whichever ts earlter." 5.17 The Bank of Zambia Guidance Noto 1 of2014~ Utilisation of the Credjt Reporting System4 under ~3~ p rovides guid ance on Clause -2.3 o( the Code as foll ows: "3. Notific:atio,i to Cu$tomer·s bg Creditor Pnn,icler Cla.u$e ~ .1 of tJte Credit Data .(Privacy} Code mandates a credtt provtder to notify u. borrower in respect of submission J37 of credtt datci to a CRA. Where the credit provider has provided credit to a person and t~ account is ~-ubsequently ltt default, clause 2.3 of the Code regar'ding Notification upon default re.quired a ,credtt provide,-. to issue a written notice of intention t-0 a defaulter, within 30 days from date of default, that unle!->'. S the amount in default b fully repa-fd before th~ expiry of 60 days from the date of the default, the negative account data shall be availed to a CRA and retained for a period of 7 years from the d-«te of final settlement of the amount in ,default. Crea-ft prouidsrs are hereby ntmin.ded to give to their borrowers in de/au lt a wrltt.en notification as prescribed in clause 2.3 in order to ttdnim.ise complaints received on the vercu:ity of the data and to pronwtc a go~d. credit cult:ure. » 5.18 Although the Banking and Financial Servi,0es Act tProvi~jQll of Credit Data and Utilisation of Credit Reference Services~ Db'octive of 2-008 has oecn replaced by the Bartking and Finaneiat Services {Provision of Credit Information and UUll$ation of Credit Reporting Agencies} Directive of 20204, it is :stm I.he case th aL lhc reporting of all credi1 data , positive and negative, is mandatoljl, ln fact , it is i.thporLanl to highligh t th a L th<· Supreme Court w the Savenda case (.-.,if""I held chat th e nolifo.:a lmn in clause 2.3 of the 5. 11;, Code is a mandatory requir emenL anil not jusl a recommended practice. 1'h c Court h eld <;1t paragn,phs 134 to 135 at pages J.96 to 98 th at: .-rcru.t:ial to o~r holding ls the fa.ct that the word "shall'-' has been us-ed in the contex.~ a.s we have held ltt the p<;V;t, which conrwtcs a manda~ry r4!'l!firemcnt. Tile ~e:r o/ .f.1':e phrase "a recommended practice"' f.s clearly misplaced and the n:1°$t. Llt of poor dn;iftsmanship. J3S Taking the matter of the notificcrtionfurther and to justify our holding, we are of the firm vtcw that eoen where the matwrs relating to the consequence of default will have been brought to the attention of the defaulting customer in tht: written statam.enf at the inception of the borrowing,. upon default he stil~ as a mandatory requirement, must be given notice of default. in. terms of clause 2.3. We say so because such notification puts the CLllegatton of default beyond doubt. Th4J need for this i.$ evident In the dispute in these proceedlngs which has be4!n raging from 2009, and the parties are still poles apart as to whether or not the Appellant ls in default. Further, the notification is a necess-ary evil to the defaulting customer in vi~w of the repercussions notification serves as a reminder of when time rt.arts fr"'m defatl lt. L<utlJI, that arise the running in respect of fulfilling the requirement to settle the amount in default ln $bcty days and the retention period of the credit data. by the credit reference agency. C<>nsequentlyt our holdtng here is that the Court of Appeq,.l misdtrc<:!ted itsetfi n its trtterpretation of clause 2.3. " 5.20 T h · ear ned au th ors of Paget's Law o{ Banking, 13th Ed.itionlo when cxpl~inin g U1e banker's r!uty or confickn iality al page 157, paragraph 8 .1, state es follows: "8.1 The law on this suhjcet is laid down by the Court of Appeal, especially by Ba.rakes LJ, fn Touniier v Ncttiono.l Prou1.n.cictl and Union Bank of England [1924} l KB 461 who described it as a difficult and hitherto only partially intJesttgat,zd branch of tho law. The. judgment establlsh~tl that the duty is a legal orte arising out of contrac~ not mcr~ly a moral one. B,-ect.ch of i t, thm-efore, gt ves a claim for J39 damages substaJttia.l if i,vury hcts re.su ltedfrom the breach. It is, howct1er, not an a bsolute dt~ty but qualified, being subject to Cf!rtain reasonab l~ e,cceptfons. The Lord Justice said (at page 4 72): ~in my opi n ion lt i.$ necessary tn a case like the present to direct the Jury what a re the limits and what a re the qualifications o/the contractual d u ty of secrecy implied in t he relation of bank.er and customer. There appears to be no authority on the point.. On print:ip~ I think that the quct. lifications c an be class ified under four hoods: (a) where disclosu.n is_under com ulsion b law.; (b) where there is a duty to the public to disclose; (c) where Ute interests of the bank. rt!tjuire disclosure; (d) i.uherc the disclosure is made by the express or implied COR$flnt of the customer'. n (undeTlined for cmpha.$is only) 5.21 The above clearly clemonstra es chat I he; Dcfcnda.nl 88 R financial service provider in Zambia is. comp ·lkd by law to submit credit information of a. data subjc:ct Lo whom they have provided crt~clit Lo aCRA. 5.22 However. I rnust be quick to stAtc Lhat the issue of notification is neiUi~r here nol' there, O!i tht! siLuation in th<:! present c-clSe is thftt lh Dt:fc-ncl~t submitted inecx~urn1c d~ta to the CRF3, wh.icl-1 il has admitted but later corrected it. According to reporting requ irement, what. J bave getherccl is I.hat r eporting i:s at two instances, namely: al tl1e puinl of getting Lhe !oan and when default. ariS<·s ewer the law. ft was nQ1 snccinedy detrton~LTat.cd by the par lie~ as to, hich of the Lwo instances the report in issue relates. The ~vidcncc is simply thal a reporl was rru,.,fo on the given date. Therefore, cl ause 2 .3 of the Code o~nnot be u&ed cit,c1i1 t:tC t •n; Od't.:ndt:tnl $incc the1-e is no evidence Lhat the rt!porl was ignited by aclual default 011 the part of the Plain Wf LO repay I he- loan J40 5 .23 The PJaintiff claims thaL Lhere w~f! breach of st.a.tu. Lory duty on t.he part of U1e Defentlanl. A'!i rightly put by the Plainliff, the· learned authors of Halsbury's Laws of England, 5th Edition, Volume 97 (supra) e l page 424 in paragraph 500 ,,la Le that breach of statu I. OJ)' duty is an indcpcndcnl Lort rc.cogniSet'J tH cmnmon law. Furth er, I hat to s uoc cd with this claim , the daimant must establish a bTcra.ch of statulory obligeLion whic h, on proper constn.tction of lhc scatut~, was int ended tn c:onfer private right s of oction upon a class of pe1·s.ons of whc>m h' is one; he must eslablis.h s.n injury or daru&g~ or a kind lhc statute was designed lo give protection; and he rnust C::!.tablish lha1. Lhe bre~ch l)f sui I Utt1ry obligation caused, or materially conlribuled to thal injury or damage, or {excep Lionally) to the dsk of Lhal. i nj ury or damage. 5.24 Clause$ 2.6 and 2.7 of the Credit Data (Privacy) Code1 sta~ a~ foUows: "2. 6 Bcfol'e. a credit provider provide.s any crc-dit data to a CRA, it 1$h«ll have tQken r,-easonably practicable ~teps to check such data for accuracy. 1/ subsequently the credit provider dis-cover-:» uny inaccuracy in the data which ha..ve been provided to tile CRA, it shall update such da.tci. held in th,a database of the CRA as ~oon as reasonably practicable. 2. 7 If a cre4it provider fails to haue ~a.ktm. reasonably pr'Q(;tfoable steps to check the at!~rac!J of the data before providing such data to a CRA, or if it; fails to updat~ the data held in the database qfthe CRA after dtscooerl.ttg such inaccuracy, this witl give rise to a presumption of contravention of DPP2(1}.,, ~.25 The Plainliff submitted thal th c duly to verify is also ech at~d m Section 12 of the Data Protection A<;ta, which h.8s 8l1c::1,Hly Gu.u1 reproduced above. Purthcrmorc, the Code guid~.s on Lhe acr.u.racy of crcdil data to be reported in Clause 2.30 and 2.31 as fo11ows: J41 '•2. 30 A credit pr-avider shall only provide credit data to a DCA a_fU!r checking the data for accuracy. If the amount in dt!fa.ult u subseq~ntly rep-aid irtfull or in p~ o·r if any $cheme of arrangement is entered into wltJt the person, or if the credit provi.,der discovers any inaccuracy in the data whtch have been provided to· and which the credit provide,. rca.sonably belie11e$ are bebtg retained by the DCA, the credit provider shall notify the 1JCA as soon as r,ea.sonab ly practicable Qj such fact.. 2.31 Qthe credit provider fails to check tile accun~cy oft~ data before providing such data to a. DCA, or if it fails to notify the DCA of 4ny inac-curacy of the data that it h«s protri.ded t<1 the DC.4 after discovering such tnaccurt.tcy, this will give rise to a presumption of cantr«ucntiott of DPP2( J). » 5.26 J find lhat clause 2 .30 and 2.31 Qftbe Code1 doc;s not apply to Lhc Defouc¼,mL conlrary lo the Plaint..iirs assertion in paragraphs 14 and 15 of the statement of clairn. This is because c]au~u 2 -1 gives guldruice ott lh!! provision of credit data to a credit rcferencir~g agency ICRA) or, 1n the .,, ·nt of default, to a DCA (which means debt collt..-clicm agency ae<,'Ording clause 1. lS). The Clause rt:(;lds as follows: ''2. l A credit provider who provides credit data to a CR.4 gr, in the evsttt o de ault to a DCA sha.l 1., on or before co1lecti.ng the credit data, tak..c a.ll reasona.bly practicable step:. to provide to such person a -written .rtat.em4!tttt setting out clearly the Jo llowi:ng information 2.1 . l ... 2.1.2 ••. 2 .1.3 ... 2.1.4 ... Jill 2.2 If a credit provider fails to take 11easonab·ly practicable steps to gi.ue to the person a written statement as dascribcd in clause 2.1, this will give rise to a presumption of contravention of DDP1(3J" 5.27 Addttionall • Section 12 (1~ ff) of the Credit Reporting Act3 is very clcai that the Bank of Zl\mbaa shaJl rcJcct an application by an applicanl to operate a credit reporling agency if lhe:: applicru1 L dlrct:IJy or indiroclly holds , controlling intere~t or share in ~ debt c:otlcction agenc.; ' or a regulated cn l 1t:y. Th en;;fore, Uw CRB m this case cannot be srud to be a DCA as wclL ·1'he prest!nt case merdy ·nvolvc.s inaccurate darn Sf'nt to U1e CRB, Therefore, clauses 2.3, 2.30 and 2.31 of the Code1 do nol apply to fac ts of tlus c~sc. 5.28 Having found that clauses 2.3, 2.30 a.nd 2.31 of the Code do not apply t.o the: pre::>t::n t case, I will now con sider w hether the Defendant br achoo clauses 2.6 and 2 . 7 of tha Code, which have been reproduc.."Cd above. A~ earlier mentioned, the Dr;fendant acJmilt d n:port.ing ulac<:uralc data to tlw CRB The Defendant's ddcnce is that err·oncous ci-ccbl cntric~ a rc concernplatcd by the law, which p1·ovide~ for th righ l Lo challen~c erroneous cred1L rep or information by a dat~ subject who m~y launch a complaint and suh~cquent ret:LificaL1on by (l tc.:port111g ality. 5.29 Th e l)cfenda.nt fu r ther averred tl1 f.l l despite lhe Plain ·rrs f.ailure LO t!X rcisc the right to chaJlcnge the inaccurate cred1t report c01-rccLl in writing, H made all n cccssmy efforl Lo promp tly rectify he Plain tiff's credit report ·withm 24 lo 48 hours of Lht! verbal compl:iml from tlie Plain I iff. 1l called lO aid Section 39 ( 1 t and {4) of the Credit Reporting Aot3 co buttrc~s the point that U1e Plaintiff ought to have challenged the rc::porl in writing. My con sidered view is lh:'lt Lhi!>. doc& not juotify n credit provider 's subtlli:-1!iio11 of iruwcuratc da.la to the CRB. J43 :>.30 It wa~ s u bnulLed by the Defendant that the subm1ss1on of inaccu.ra c data w as an honc!'lt mistake in volving a simple lrunsposillon of n ames in a data dump. l fowc-vcr, no evi<lcncc was a dduced by lhe Defen dant. I o prove thjs a.s~crtion. D\V 1 duru1g XXN conlinncd tbal the Defendant d id not h ave proof th at thct'e w~~ a similar mune to that o f th e Plaintiff, hence, t h e m i:stake in i ssi.1 •• 5.31 I em of the con ·idered vie\ that the Defendant did not Le.k reasonably practicable S lt:ps before providmg the Plaintiff's .rcdit data to a C l. U\ thereby hreachmg Clause 2.6 and 2.7 of the Code 1 . giving ris · to a pre~umpt10n of contravention of the Data Protection Principles (DPP) 2( 1) which provides, mter a. Ti.a., as follows: "2 . Principle 2- Accuracy and Durt1tion of Retention of Credit Data (1) AU practtcab(e steps shall be ta.ken to ensure tltat- (Q} credit data are accurate having regard to the purpose (including any directly relatt!d purpose} for which the credit data ar~ or are to be used-; (b) where there are reasomw,lc grounds for believing that personal data are inaccurate having regard to the purpos<! (in.eluding any directly related purpose} for which the d~ arc or to be used- (i) the data t1re not used for that purpo$e unless and until those grounds cease to be applicab'h? to tlte datq, whet he r by the rcct1.ftcati.on of the data or other-wise; or (ii) the data are erased; (c) where it i.s practicable in all the circwn.stances of the case to kttow that- (iJ c redit da.--ia disclose on or c,Jter tht! appoint d cl.uy to a third day arc materially inoccura.te havtng regard to the purpo$e (-including any d·irectly J44 re lated purpt>se) fo.r which the dat-a. ar-e or are to be used by the- third party; and (ii) that data. were inaccurate at the t ime of such disclosure, that th~ thircl. party- (AJ is informed that the data are accurate; qnd (BJ 1s provided with .such parti culars as will enab l.a the third party to rectify tM data hauing regar d to that purpose." 5.32 ln lighl of the ctbovc, il is my conclusion t h BL the Defendant bre:,achcd clauses 2 . 6 and 2 . 7 of t he Credit. Data 1hivac,y) Cod.e 1 . A!3 U1c introduction to chc Code stales, a brca h of the Code by a d~l::t user may give rise to a prc~umpLion ugru.nst the duta u ser in any legal prooeL-<lingN in Zambia. I find that lhc Defendan t hall not. produced sulTidcnt evidence Lo overcome th e µ1 e~n.unption oi con n·avcning DDP'2(1) above arising from the im1ccuratc J;sting of U1e Pl a intiff. The Defonda..nt had 11 duly to provide accurate mfortnaticm t-0 the CRB on th e status of the Plaintifrs loan but in~wattl provided inaccuteLe information thereb • bteaching it.a ~tatulory duty whith also amounted to negligen ce. 5.33 H aving cstabtbbml 1.hal. the Defendant breach ed clause 2 .6 and 2 . 7 of the Code.l, J n ow tu rn to consider whelher the Plamtiff has u c8u!$e of action again st t:hc Defendant eitht!r for hr ach of statutory duty and/or negligence. 5 34 However. before considering I.he is~uc of cause of action, I ,•n•mt to brie□y d cRl with t h e Pfainlif. Ps submission U\al ht: was not availed Lh<· complaints procedure, as provided fo.r untkr Section 35 of the Credi.t Reporting Act3, by the DefendanL. !I was ttdmicted by DW l that llie compla in ts pnx:~dur was aot availed to UH: Pfain tiff m writing. I not~ thut thi3 fa3uc was fir3t raised <lt Lrial and is nuL included m th pleadings.1'he Supreme Cou rt in the Saven da ca~e (supra) at page J .87 in puagJ-apb 120 guided lhat: J4S " O~rs is an adversarial court system which :,hacklt:s the judge to the pleadings artd evidence presented before him.., 1'hcrcfore, I will not. entertain 1 he issue of comp aincs proccd1ue as it was r10 L plr.adc-d. ~.35 Returning lo the q u csLion posed above. in lh ca.<;e:; of l\lwansa v Zambia Breweries Plc (supra. J cited by the Oefeltdant, the Supreme Court held chat 1o succeed in a claim or nt.=ligcncc 1 UH! clf.limant m us t provt: Lhc following demeni s: du ty or care, breach of th at d u ty, and con sequcnUru los~/Ll arnHgc. Further, thaL the Plain ti.ff bears the burdt!n LQ prove these t::lcmcn ts. 5.36 And , in the ca~c- of Michael Chilufya Sata v Zambia Bottlers Limited (supra), lhc Supreme Court had this Lo say; "Thus, it will be observed that the only remedies for a breach of Section 3(b) of the Food and Drugs Act are criminal sartctions and there is no p.rooisionfor the recovery of damages in a civil suit. A.s the lcar~d authors of Charlesworth on NcgUgence observed at paragraph 1104 "it wouttl seem that if the statute has imposed a penalty for Us breach but:. WQS silent· as regard.$ "-nY remedy ill civil law for damages there may be a pr(tsu.mption initially that the remedy prescribed by the criminal law b the only remedy." Furth.er the le<z.rnsd authors go on to point out that unless the statute or regulations provide to the contrary, the burden rests on the Platntiff to proue on a bfilance of probabilities that the breach of duty caused or materially contributed to his damage. In other words, negligen~e is only actionable if actual d'amage is proved, there is no right of action for nomttta[ damage$. As Lord Reading, C. J . $aid in the case of E. SUFFOLK RIVERS CATCHMENT BOARD VS KENT, 1941 A. C. 74 1415 "Ncgtigenc-e. alon-edocs no~glvea cayse-ofactfo.rt, da.niagc alone does not give a cause of action; the two mu.st co• J46 " exl.st." There was no injury or da.mage caused to the Appellant by the adul.terated dri.nk as he dtd not consume any parl. of it. Even Dr. KA Wl. MBE the medi.c--a. l practiti.on'1r called by the Appellant in the court below admitted that no treatment was prescribed/or the Appellant and his chfldren for the ''nausea.» caused by the sight of a dead cockrottch in an unopetted bottle of spri.tc. Grounds 2 and 3 cannot 4lso suoue.d ttnd in the e"Vent we disndss the appeal •••• ~ 5.37 l run furlh~ g uided by th e decision of our Supreme C ou.r1 in Lhe cas~ of Lafarge Cement PLC v Mandon.a26 where il quolcd an English case thus. ''In the English ca4,tt of Ross v Associated Portland Cement Maruifacturer-/!j Limited,,, Lord Reid fo,-m·u.lated a baste '1iability test<'/ in the context of 4 breach of a statutory dr,1.ty~ in the following terms. " ... it ts notu well e.st«bltshcd that « breach of a st«tutory duty dof:s not give rise to civil [iability -.inless there is a proved cat4sa.l connectiort betu.,eP.,e tM breach and the plaintiffs injury (at p. 455)" 5.38 The Plain tit'f claim!; that as a result of the Dcfcncla11t1s breach of statutory duly he suffered direcl a n ci consequertt.ial loss, incon vcnicnco and delay. Althoug h the Plaintiffha.:3 proved the issue t>f b reach of duty aud nc¢igt:-nce, the Plaintiff did n ol adduce evidence or call ru1y Wilm:~~ from Absa t.o prove! h is claim iat the he a pplied fo1• a loan LO Abs.a and that it wa~ rej ect.eel because of Lhc negative r<!pof made to CRB by 1J 11:.! Defendant. 5.39 tn lhe case of Sylvester Mu{>onda Shipolo v Shad.reek Maipambe27• the Supreme Col.lrt guided a:s foUows; "We have repea.tedly said in. countless decisions ittclu.difl!J NFC .llfri.ca Mintng PLC v. Lofoyi Enterprises Llm1t.f!d; Pullit:L Kabanda Chikole v. Bank of Z<zmbia; TJ\e Attorney General v. Agnus Ngomci and Ch«rles Kajimanga (as Ltquidators of J47 Zambia Co-opsrative Federation Finance Services Lbnited (In Liqut.datfonJ that a "ludg,rt4mt must b., an_phored on. (2.r. sup ~ rted evidence adduced be o re the court." (undeTlined for emphasis only) 5.40 In I.he absence of evidence Lha. L the f iru1itiff «ipp licd for a loan facility of %MW 850,000.00 et Absa and \J."'as n :jec:lcd due lo th<.: Dcf ·ndanL'i,. actions U1aL w~rc in breach of statl.-11ory duty, the clalm for conseq1.1entia.l damage or inj ur I:!~ pleaded and advanced by I.he PlHinl.iff lacks evidence to prnvc the same. P\1 lhcr , the Plaintiff i ndicat d U1al Lhe purpo~e for t he ZM\V 850,000.00 lorul from baa was to among other thing" facilitate lhe t.--slablishmcnt of op ""ration s in Malawi, w ith lhc intention o f mcorpontl mg a subsidiary of FOBs Scietuific Lim ited, whlch was to become fu.ilyopemtiom;iJ by 111t July , 2024. No evidence was laid b~forc Court Lo prove this assertion as well. 5 .4 J Pu re.her, iL is~ ~ct lied position of hl\ Lha1 credit refere.ncin g is not. a Lool for hlacklisting cuslomcrs. The ~uprcmc Court. in lhc Savenda ca&e (supra) gu1de<l c1t. paragraphs 179 to 180, pages J l 28-129 as follows: "Further~ the purpose of credit referencing must be understood ln tts prop,e;r context which is th«t, artd in acc.ordanc.e with th£ Guidance Note, ft should not ~ used as a tool for "blackli$'ting'• custome,-s. The Guidance Note state$, in this re_~pect, under (2) Interpretation of Negative Credit Reports as follows: "The decision to extend « credit fcu:ility to a bor-rower, whether or not tha.t person has a negative credit report, is the proscrH of the credit provi.der, ustng ct""edit i,iforma;tion held by a CR. A, additional i,ifonrmtio n pror.rided by the- borro•wor and tts iritcmal proceeds . ., J48 Thws, the fact that the Appellant was in defat,U did not mean that the Respondent should give a negative recommcndcrtion to Standard Charter-ed B'1nk, th~t'eby locking it out of credit. Its responsibility ended, a.s it did, at stating the cr~dit status of the Appellant: with it and leaving stand4rd Char-tered Bank to make an informed decision on the matter. 11 5.42 My con sidered view is thaL lh • Dcfcndanl ha.~ not demonstrated how the inac;c;urntc CRB rt."1)Drl led to an clJ'limed loss. 1'he Plaintiff clearly failcrl to prove injury: consequc::nlly, one of the mgredien l.s to su~l 1;1in an action for breach of st.alulocy· dUL}' anci ncglig nc:c: was nol salJsfied. T'ht!rcforc, I hold the view thaL the P lairtliff h as no actionable cause ot action uf .1grunst lhc Defendant. 'T'hc actio n hert!in ii, incompclen. L. 5.43 Regarding Ull: aw~rci of damages for i ncorw~ni 'nee, the S\lprcmc Coun int.he ca~· of The Attorney General v D . Q Mpundu as held t.haL DamFtgcs for tn ·ntal distress f.lrt<i inconvenic!nc;c may be recovered iJ1 an ac.:hcm for breach of con tract.. Th~ Court held that· "''We ~ at large to consider whether tfu: respondent is entitled t-0 compen.satl.on under general damagesformenta.l dlstr-ess and inconvenience. Add-ts v Gramophone Company Limited, (l l)' was for many yt!ar$ authorlty to bar, for instance a s.ervant wrongfully dismissed from his employment1 Jar recovering chimagcsjor injured feelings or loss sustained from the fact that the dismtssal itself makes it more difficult for him to obt.ain. foe.sh employment. Thi.$ case has sine" been quaHficd tznd there is now a chain of authorities to 5Upport the recovery of damage.s for mental incontx!nicnc~, for example, dw,a.ugt:s for dut:ress or frustrqti,on annoyance and disappolrttment could be recovered in an action for breach of contract. n- J4!) 5.44 Furthermore, the Supreme Court jn the ca~c Zambia State Int.ura.ncc v- Seriot. Farms r~•1,,pru) gujded as follows: "In th.a a.uthorltles where awards of damages for inconvenience as such were tn4de · such as Attorttey-General v Mpundu (2} - such damages were not considered simply because the breach of any contra.ct is inconvenient to the plaintljj. As the leanu!d authors of Chttty on Contracts, 25tli Edition, point out at paragra.ph 1 704~ dcunage..s for breach of contract normally relate to financial los.s. Non pecuntary losses may be recovered if they were within ~ contemplation of the parties as not- unlikely to result from the breach. 1n tht! case of incon~nicnc~ the damages have nonnaUy related to substantial physical or personal inconvenicnca or discomfort: See for example the Mpund1' case (2) and Miyanda ti Attorney-Gtncral (3). In Miyanda (3), we cautioned: ''Of course, these damages should not be awarded unless the dis-tre$s, hardship or inconvcntence1 a.s the case may be, res« lts from some act, or omission on the part of the defendant · {either in hts conduct or in the manner of effecting the wrongful breach or if suclt result must: have been in the contemplation of the parties as Ukely to bring about undue suffering) - which dot!s occasfon suffering which goes beyond the normal consequences of a u,rongfu l breach.,,,, 5.45 Rascd on the above gu_idancc by the Suprt!rne Co1l.f~ I run not convinced that lhe Plainliff has demonstra ted undue suffenng as a result of the DcfendHnt's conduce. Therefore, and in ligh t of th~ inrnrnµctency of tlas action refirfs (di) fails. 3.46 The con clusion I have come ro i& that th e Pla.inl.if 's ac tion l:lets n o merit and is dismissed in its entirety. S.47 Pru-ties ~haU bear tbcir respt:ctive c-ost.!3 since tb~ Dcfertda.nt only succeeded 011 a kchn i~~ity bu.t \\,"a~ clearly in breach of a statutory du ty. La.stone Mwan,al)q. lHGU COURT JtJDGB 151