First National Bank Zambia Limited v Krutec Investment Limited and Khondwani Munthali (Appeal No. 104 of 2022) [2024] ZMCA 94 (2 May 2024)

I THE COURT OF APPEAL OF ZAMBIA HOLDE AT LUSAKA (Civil Jurisdiction) Appeal o. 104 of2022 BETWEEN: FIRST NATIONAL BANK ZAMBIA LIMITED AND KRUTEC INVESTMENTS LIMITED KHONDWANI MUNTHALI I st Respondent 2nd Respondent CORAM: Makungu , Sichinga and Sharpe-Phiri, JJA on 21 February 2024 and 2 May 2024 For the Appellant: For the I st Respondent: Mr. S. A. G. Turnwasi and Mr. M. G Lumbwa of Kit we Chambers For the 2nd Respondent: Mr. K. Wishimanga of AMW Legal Practitioners o appearance JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court Cases refe1Ted to: I. A/rope Zambia Limited v Chafe and Others, Appeal No 160120 13 (SC) 2. Attorney General v Achiume ZR (1983) 221 3. Inda-Zambia Bank L imited V Lusaka Chemist limited (2003) ZR 32 4. B. P. Zambia Pie V Inter/and Mo tors l imited (2001) ZR 37 5. Wilson Zulu v Avondale Housing Project (1982) ZR 172 I. INTRODUCTION 1. 1 This appeal stems from a judgment delivered by Pengele, J of the Kitwc High Court on 4 March 2022. In this judgment, the learned trial Judge held J I . . the appellant responsible fo r reimbursing the I st respondent an amount totaling K271 ,193.04 representing funds erroneously disbursed from the 1st respondent's account. 1.2 The trial Court also fo und the appellant entitled to full indemnification by the 2nd respondent for its entire liability. 2. BACKGROUND TO THE MATTER 2.1 A brief overview of the case reveals that the 1 st respondent initiated legal proceedings on 25 th June 20 19, through the filing of a writ of summons and statement of claim against the appellant. Subsequently, the appellant filed a third-party notice against Khondwani Munthali on 8 January 2020 . In an amended statement of claim, presented on pages 59 to 60 of the record of appeal, the 1 s1 respondent asse11ed that on or about 14 December 20 17, it notified the appellant of changes to the authorized signatories fo r its bank account. The appellant purportedly acknowledged that Mr. Vincent Mwansa was the so le signatory authorized to approve withdrawals from the I st respondent's account. 2.2 That despite the appellant' s awareness of the existing situation, it proceeded to disburse a total sum of K271 ,193.04 from the 1st respondent's account without obtaining consent or authorization from the I st respondent. As a result, the I st respondent sought compensation fo r this amount, along with interest and costs. J2 . . 2.3 In its defence, detailed on pages 63 to 64 of the record of appeal, the appellant contended that the 1 st respondent solely communicated a modification regarding the sign ing mandate and the holder of the automated teller machine (A TM) card. The I s1 respondent did not notify them of any change in the cell phone banking function. The payments from the 1 st respondent's account according to the appe llant, were executed m accordance with the mandate held with them and using the mob ile phone number provided by the 1 s t respondent. 3. DECISION OF THE TRIAL COURT 3.1 Justice Pengele, presiding as a High Court Judge in Kitwe, determined that the initial shareholders and directors of the 1 st respondent were Reuben Mwila, Teddy Kandeke and Khondwani Munthali . It was found that on 7 September 20 12, the directors of the I st respondent resolved to estab lish a business account with the appellant Bank, and the account was duly opened on the same day. Furthermore, the trial Court established that after the depa1ture of the aforementioned three fo rmer directors of the 1 s t respondent in 201 7, the new directors appointed were Mr. Vincent Mwansa, Mr. Edward Mwamul ima, and Ms. Shirley Mwansa. The new directors resolved to reinstate the I s t respondent" s bank account on 11 December 20 17, and the account was consequently reopened later in December 201 7. 3 .2 The trial Court also determined that the disputed transfers from the I s t respondent's account occurred between May 201 8 and November 2018. otably, all contentious transactions were carried out using the cell phone banking fea ture. The trial Court established that the mandate signed by J3 . . Vincent Mwansa, the sole signatory to the !51 respondent's account, did not encompass cell phone banking. Furthermore, it was found as a factual matter by the trial Court that the appellant was info rmed that the former directors of the I s t respondent were no longer associated with its bank account. Additionally, the trial Court concluded that at the time the I st respondent 's bank account was reopened, there was no provision for cell phone banking for SMEs and other corporate accounts. 3.3 The trial Court established that all di sputed transactions were conducted using the cell phone number 0966308415, which belonged to Khondwani Munthali , a former director of the I st respondent. The total amount of contested transactions between May 2018 and October 20 18 amounted to K276,50 1.00. Concluding that th is sum was wrongfull y withdrawn from the 1 s1 respondent's account without its consent or authorization, the trial Court ordered the appellant to repay this amount with interest. Additionally, the Court determined that the appellant was entitled to fu ll indemnification by Khondwani Munthali for its entire liability to the 1 s t respondent. 4. APPELLANT'S GROUNDS OF APPEAL 4.1 Being di ssatisfied with the judgment delivered on 4 March 2022, the appellants lodged a Notice and Memorandum of Appeal on 21 March 2022 outlining five grounds of appeal: (i) That the learned Judge in the Court below misdirected himself in law and in fact when he found that the JS1 respondent had proved its case against the appellant against the weight of evidence on the record. ]4 -· (ii) The learned Judge in the Court below misdirected himself in law and in fact when he made findings of fact that were unsupported by the evidence on the record and ignored relevant facts he ought to have considered. (iii) The learned Judge in the Court below misdirected himself in law and in fact when he found that the appellant paid out money of the 1st respondent 's account without the J5f respondent authority or consent and that the appellant had no mandate to make the payments it did contrary to the evidence on the record and the law. (iv) The learned Judge in the Court below misdirected himself in law and in fact when he failed to consider the fac t that the 1st respondent suffered no loss arising from the fact that the phone number that initiated the transactions belonged to the 1st respondent. (v) The learned Judge in the Court below misdirected himself in law and in fact when he failed, despite finding that the appellant was entitled to an indemnity, to award costs of the defence of the action in favour of the appellant and against the 2nd respondent. 5. ARGUMENTS OF THE PARTIES 5.1 The appellant fi led heads of argument on I 7 May 2022 and the 1 s 1 respondent on 17 March 2023 respectively. There were no arguments fil ed fo r the 2nd respondent. The arguments have been duly considered although the same will not be reproduced here but will be referred to where necessary. JS -· 6. HEARING OF THE APPEAL 6. 1 The appeal was heard before us on 2 1 February 2024. All the parties were represented by their respective counsel, as previously mentioned. Counsel for each party presented their arguments during the proceedings. 7. DECISION OF THIS COURT 7.1 After thorough consideration of the evidence presented in the Record of Appeal, the judgment under scrutiny, and the arguments put forth by the parties, we will address the grounds of appeal as presented. The appellants have collectively argued the four grounds of appeal together, all of which pertain to findi ngs of facts made by the trial Court. The fifth ground of appeal was argued separately. 7.2 We have reviewed the restricted circumstances under which an Appellate Court can intervene or overturn factua l determinations made by a lower court. In Attorney General v Achiume, it was established that the appellate Court will not overturn findings of fact made by a trial Judge unless it is convinced that the findings in question were either perverse or made in the absence of any pertinent evidence, or based on a misunderstanding of the facts, or were findi ngs that no reasonable trial Court could arrive at based on the evidence presented. 7.3 The case of Wilson Zulu v Avondale Housing Project is instructive on th is point that 'the appellate court wi ll only reverse findings of fact made by a trial comt if it is satisfied that the findings in question were either perverse J6 or made in the absence of any relevant evidence or upon misapprehension of the facts.' The authorities provide valuable guidance, emphasizing that an appellate court is bound by certain principles. Specifically, an appe llate court is only empowered to overturn findings of fact by a trial Judge if those findings are deemed perverse, made without any pertinent evidence, or based on a misunderstanding of the facts. 7.4 In considering this appeal, we acknowledge our responsibility as an appellate Court when dealing with matters pertaining to findings of fact made by a trial Court. Therefore, in evaluating the grounds of appeal before us, it is essential to determine whether any factual findings of the lower Court were perverse made in the absence of evidence, or based on a misunderstanding of the evidence. 7.5 The first ground of appeal asserts that the Judge in the lower court erred by concluding that the I s1 respondent had proven its case aga inst the appellant, despite th e preponderance of evidence suggesting otherwise. The second ground alleges that the Judge misdirected himself by making findings that were not supported by the evidence on record and by overlooking significant facts which should have been considered. In the third ground, the appellant contends that the Judge misd irected himself by concluding that the appellant had disbursed funds from the 1 st respondent's account without the I st respondent's authority or consent, and that the appellant lacked the mandate to make such payments, contrary to the evidence on record and the app licable law. In ground four, the appel lant argues that the Judge fa iled to consider that the I st respondent did not suffer any loss since the phone number initiating the transactions belonged to him. J7 7.7 It is our considered opinion that the reso lution of these four grounds of appeal, whether the I st respondent had proved its case that the appellant had wrongly disbursed fu nds out of th e I st respondent's account without its consent or authority, or that the appellant lacked the mandate to make such payments, hinges upon an examination of the evidence utilized by th e trial Court to reach its conclusion that the sum of K276,50 I was paid out of the I st respondent's account. 7.8 After reviewing the trial Court's judgment, especially fro m paragraph 103 on page 40 to paragraph I 14 on page 44 of the record of appeal, it becomes quite clear to understand the bas is of the trial Court's decis ion. The judgement of the trial Court in this section is reproduced below for reference: ·· l 03. I am, therefore, inclined to agree with the Defendant that the mandate signed by Vincent Mwansa at page I I of the Plaintiff's bundle of documents did 1101 cover mandate cell phone banking. I 0./. The stance by the Defendant is that the feature of cell phone banking existed at the time the new shareholders req11ested the Bank to reopen the acco11nt. It is the Defendant's position that the cell phone banking.feature continued to exist on the reopened acco11nt because the Plaint{[f did not issue a specific instr11ction to the Defendant to remove that feature. DW testified that, when an acco11nl goes into dormant state, the acco11nt stays with all its features and that if that account is reactivated, all those features come back. 105. Conversely, the Plaintiff has maintained that, al the time of reopening the acco11111, it did not request the Defendant to include the cell phone banking feat11re. J& ! 106. 1 have taken time to painstakingly examine instructions which were given to the Defendant by the Plaintiff when the Plain1iff went to reopen the account. It is clear from the record, and !find as a/act, that when Vincent Mwansa (PW I) and Ed111ard Mwmnulima (PW2) 111ent to the bank to reopen the accoum, they explained to the Plain1ijf's bank relationship manager. PW./, the circ11111stances under which they had decided to reopen the account. It is plain from the testimonies of PW/ , PW2, PW3 and PW5, that it was after that explanation that PW./ advised PW/ and PW2 that they needed to change derails at PACRA and rhen go LO the bank with rhe former Directors and current Directors. 107. It is clear from the evidence before 111e, and I find as a fact. thar through PW./, rhe Defendant 111as aware rhea, when the new Directors went and requested to reopen the account, the former Directors were being completely replaced with the new Directors, in so.far as thar bank account was concerned. ! further find as a/act that the Defendant ,vas aware rhat the new Directors did not want the old Directors to be connected in any ll'ay to the acco1mr and rhar rhey only desired ro reopen the old account for the convenience of the Plaintiff's business. I 08. In arriving ar the foregoing findings, I have relied on the unchallenged testimony of PW./, the bank official 111ho actually reopened the account. The testimony of PW./ was that the ne111 Directors requested that the same old account number must be maintained for the convenience of their business. He added that they asked him to change the signatories and to remove the former Directorsfi-0111 the bank system. It was PW-I's testimony that rhis 111as why the bank requested the new Directors ro avail it with new PACRA documents which showed the new Directors. PW./ told the Courr rhat he reactivated the account ll'ith the new Directors and that the old Directors did not have any connections ro the account. 109. The foregoing testimony of PW./ is consistent with what PW/ , PW2, PW3 and PW5 told this Court. The testimonies of these 111itnesses establish rhat the new Directors effectively bought off the entire company from the former Directors. J9 Further, that the Defendant bank was made aware that former Directors had nothing to do 111ith the bank account anymore. 110. The testimonies of PW/ and PW2 are to the effect that they did not ask the Defendant for 111obile banking 111hen they reopened the account. Both PW/ and PW2 testified that PW-I only asked them if they needed internet banking. Jn fact, PW2 added that PW-I had assured him that the account did not have cell phone banking or internet banking. Further, that PW-I had assured him that the bank did not have the cell phone bankingfacility for companies. I I I. I hold that the preceding testi111ony of P W2 is believable. This is because a review oft he testimony of PW-I establishes that, at the time he was reopening the account, he did not kno111 that there was a cell phone link that was active on the account. He told this Co urt that corporate and SME accounts did not have the cell phone banking feature. He went on to lestifj1 that it 111as normally for the Plaintiffs account to have cell phone banking because cell phone banking was not available for business accounts especially for entities like the Plaintiff, 111hich 111as a company limited by shares as opposed to a sole proprietor. I 12. Ho wever, DW disagreed 111ith the testimony of PW-I, on the availability of cell phone banking to companies and other business entities. Reacting to that testimony, DW explained that when the Defendant bank originally came to Zambia, it 111as a requirement for all bank accounts to have cell phone banking. I I 3. It is, nevertheless, clearfrom the further testimony of DW that the Defendant later abolished the requirement for SMEs and other business accounts to have cell phone banking and left that feature for accounts of individuals. DW failed to tell the Co urt exactly when the Defendant discontinued the requirement fo r SM Es and other business accounts to have cell phone banking. Under cross-examination, he simply stated that cell phone banking is currently limited to personal bank accounts and that business accounts only have what is called online banking. J 10 -· When asked exactly when that change was imple111e111ed, the witness stated that he did no/ know exactly when the change was made. 114. I am disposed to find as a fact and to hold that, by the time the Plaintiff's new Directors went to reopen the account, the cell phone banking feature was no longer in existence for SMEs and other corporate accounls but was limited to personal accounts. In my view, this is the only plausible explanation for the surprise thal seems to have struck PrV4 when he later discovered that there had been a cell phone banking link which was being used by one of the Plaintiff's former Directors to transact on the Plaintiff's account. 115. It is clear from the testimony of PW4 that he did not disconnect the cell phone banking link because he believed that such an account did not come with such a link. Jn fact, PW4 testified that he only discovered the link after noticing that the disputed /ransactions were being done by a cell phone number. ft was then that he went into the bank sy stem and discovered the remnant cell phone banking link. According 10 PW4, the said cell phone banking link was not done in a normal way. 7.9 Our perspective on the issues requiring determination, concerning the nature and extent of the mandate given to the appellant by the 1 s t respondent, is that the evidence presented to the Court should be evaluated in the context of the legal framework surrounding the facts of this case. Specifically, the existence of the 1 s t respondent as a company in the transaction under consideration should be examined considering the principles of company law, particularly the principle that a company is a separate legal entity and distinct from its members. This viewpoint was reinformed in the Supreme Court case of B. P. Zambia Pie V lnterland Motors Limited. J II _, 7.10 Wi th that in mind, we a lso want to speak to the legal relationship that exists between financial service providers, such as the appel lant bank and corporate clients, li ke the 1 st respondent. In this regard, we refer to the principles established in another Supreme Court case, Indo-Zambia Bank Limited V Lusaka Chemist Limited. The key facts of that case were as fo llows: " The facts which were before the lower court are common cause. Th e respondent company maintained a business account with the appellant. There were three signatories to the account all of whom were Directors of the respondent company. During the material time, the procedure which was maintained at the respondent's company was that the accountant was responsible for writing the cheques which he then referred to any of th e signatories for signature. Between December 1999, and 29r1, January 2000 one of the signatories was out of the country. On 29th December 1999, another of the signatories received information from the bank to the effect that the company account had a negative balance and some cheques had been returned unpaid. When he probed the matter, he found that a number of forged cheques prepared by the accountant had been paid out on the account. After evaluating th e evidence on record the learned trial judge found that the respondent had proved that th e disputed cheques were forged and that the forgeries started in June 1999, and continued unabated until the end of December, 1999. He also found that both the appellant and th e respondent were not aware of the forgeries. He concluded that although the appellant was not negligent, it was liable because it paid out the cheques without the mandate of the respondent. " J 12 J 7.11 When the case came for appeal befo re the Supreme Court, the apex Comt had the opportunity to add ress the extent of liability and obligations that could arise in a bank and corporate client relationship under the circumstance of that case. The Supreme Court held that: "]. What is required of banks is not expert knowledge on detection of forgery, but a degree of knowledge ordinarily required f or the discharge of their duties. 2. Th e test of negligence is wh eth er th e transaction of pay ing on any given cheque was so out of the ordinary course that it oug ht to have caused doubts in the bankers mind and caused them to make inquiry. 3. Merely by honouring 0 11 undetectably f orged cheque, a bank did not represent that the cheque was genuine and in the absence of negligence, no estoppel by representation could arise on th e bank clearing such a cheque." 7.12 In considering the facts of this matter, we will apply the legal context established by the Supreme Cou1t in the afore mentioned authorities. In doing so, we have reviewed the evidence presented to the trial Court, the findings of the trial Judge and wish to hi ghlight the testimony of PW2 from the lower court. PW 2, Mr. Mwamulima, is one of the new Directors of the I st respondent company, following its purchase from its previous shareho lders. He was appointed based on his extensive professional experience as a Chartered Accountant and Auditor for over 20 years. Mr. Mwamulima was engaged by Mr. Vincent Mwansa, a prospective shareholder at the time, to conduct due dil igence on the state of the I st Jl3 respondent prior to its purchase (transfer of shares to new members). He interrogated the 151 respondent's two former Directors to understand the state of the company before its purchase. Mr. Mwamulima was also the individual who first engaged the appellant bank through the Relationship Manager responsible for the 151 respondent's bank account. This information is detailed on page 170 of the record of appeal. 7.13 The relevant part of his testimony, as indicated on pages 170 to 171 of the record of appeal, was that the signing arrangements for the 1 s i respondent's bank account allowed Mr. Reuben Kandeke and Mr. Munthali to sign individually on the account transactions. He also mentioned that the account had a bank card (Automated Teller Machine- A TM), but no cheque book. He inquired about internet banking for the account, and the Relationship Manager advised him to arrange for both the incoming and outgoing Directors of the 151 respondent to be present. PW2 also acknowledge that there was no mention of mobile (cell phone) banking. 7.14 In further examination in chief, as shown on page 175, the same witness contradicts himself by stating that Mr. Yowela, the Relationship Manager, had informed him that there was no cell phone banking on the 1 si respondent's account. During cross-examination, as detailed on pages 176 to 177, the witness confirmed that the company resolution submitted to the bank pertained to altering the signing mandate and the A TM card mandate. This mandate allowed Mr. Mwansa as the on ly person authorized to withdraw from the 1 s i respondent under the said facilities. J 14 ' 7.15 In further cross-examination, as recorded on pages 186 to 187 of the record of appeal, PW2 stated that the resolution submitted to the bank did not include changes to the email address of the 151 respondent or the phone numbers associated with the I st respondent. He admitted that the phone number 0966308415, which was the source of the money in dispute, continued to be listed as the I st respondent's number at all relevant times, even four years after the I s t respondent changed ownership and management. 7.16 Based on the evidence presented, it is evident that the l st respondent continued to utilize the same cell phone number, 0966308415, even after its ownership and management changed hands. According to the records of the appellant bank, this number was registered as the company's phone number throughout the relevant period. This deduction is based on the requirement that any modification to the mandate given to the appellant bank could only be made or altered through a properly filed resolution. The 1 st respondent, being a company, is considered an artificial person under the law, and its operations are governed by legal formalities. 7 .17 Although the testimony of PW4 and OW indicates that the appellant initially activated cellphone banking when it commenced operations in Zambia, a service that was later disabled for corporate clients, OW specifically stated th at he was unaware of when th is change in the bank's policy occurred. He only knew that cell phone banking was no longer mandatory for all bank customers and was, at th e time of the trial, limited to personal accounts. There was no definitive evidence before the lower court regarding the timing of the discontinuation of cell phone banking for certain bank accounts, if it occurred at all. JIS 7. I 8 Hovvever, it is unmistakable from the ev idence on record that the I s1 respondent had access to cell phone banking at the material times, and the number used to conduct the transactions in question was legally associated wi th it. There is no dispute that the money was wrongly withdrawn fro m the 1 st respondent's account v ia cel l phone banking to the 2nd respondent's phone number 0966308415 , who was a former director of the company. 7.19 Based on our earlier conclusions, we believe that the lower Cou11' s findings that the Appellant was responsible for wrongly pay ing out fun ds from the I st respondent to the 2nd respondent without the consent or authority of the 1 st respondent was incorrect. It is evident that the 2nd respondent was aware of the cell phone banking fac ility that the company had and that his phone was ut ilized for cell phone banking transactions. The fact that the new directors / members who purchased the company were unaware of this information indicates that the 2nd respondent intentionally withheld this information from the new owners of the company. This resulted in the cell phone banking facility not being cancelled, and the 2nd respondent clearly took advantage of th is, to fraudulently withdraw funds fro m the I st Respondent"s account, to which he was not entitled. 7.20 In commercial transactions invo lving the acquisition of corporate entities, we strongly believe that th e responsibility lies with the pa11ies to conduct comprehensive due diligence to mitigate risks, such as the one the parties in this case are facing. It is not the duty of third parties or financial services providers to investigate the internal restructuring of a corporate entity unless expressly invited to do so in accordance with the law. If PW2 or the 1 st respondent had demonstrated that they had inquired from the appellant bank J 16 about the full extent of the mandates on the I st respondent's account before acquisition, our conclusion would be different. However, as it stands, we find that the trial Court erred in its approach to considering the evidence presented before it and concluding that at the time that the new directors were reopening the bank account, the cell phone banking was no longer in existence for SME' s and other corporate accounts. As indicated in the preceding paragraphs, this finding of the lower court was erroneous and was made in the absence of evidence to this effect. For these reasons, we find that grounds I, 2, 3 and 4 of appeal are successful. 7.21 Since the Judge in the lower Court determined the amount of K271 , 193.04 was wrongly paid out from the 1 st respondent's bank account to the 2nd respondent, the court should have directed the 2nd respondent to repay this sum to the 1 s i respondent rather than the appellant. We are of the view that the 2nd respondent must be ordered to refund the money to the 151 respondent. 7.22 With regard to ground 5 of the appeal, the appellant contends that the Judge in the lower court erred in law and fact by failing to award costs of the defence of the action in favour of the appellant and against the 2nd respondent, despite finding that the appellant was entitled to an indemnity. The appellant argues that once the trial Court established that indemnity was available to the appellant, it should have directed the 2nd respondent to bear the costs of the action. However, the Court failed to do so. 7.23 The trial Court's order on this matter, as documented on page 54 of the record of appeal, stated: 'Further, I order that the defendant shall pay the costs incurred by the plaimifl in these proceedings to which shall be taxed in default of agreement. The defendant is entitled recover the said costs from !he third party. ' J 17 7.24 It is acknowledged that a successful party is generally entitled to costs, unless there are circumstances related to the nature of the claim or the party's conduct that would make it inappropriate to award costs. Furthermore, it is we ll estab lished that the award of costs is within the discretion of the courts. This principle was affirmed by the Supreme Court in the case of Afrope Zambia Limited v Chate and Others. In this case, the tri al court stated in paragraph 127 of its judgment, also located on page 50 of the record of appeal, the fol lowing: 'In view of the foregoing, I hold that the defendant cannot exempt itself from liability for making wrongful transactions from the plaintiff's account from which it had no mandate from the plaintiff' 7 .25 Based on the trial courr s decision, it is evident that the appellant was considered partially liable for allowing the wrongful transactions, as determined by the tri al court, a finding that has been ove11urned in this appeal. However, since there is no dispute that the actions of the 2nd respondent necessitated the proceedings in the lower cou11, and the court based on these circumstances, deemed the appellant entitled to indemnification by the 2nd respondent, we also overturn that part of the lower coun·s ruling that ordered the appellant to bear the costs in the lower court. For this reason, this ground of appeal is also successful. 7.26 Prior to concluding this matter, we wish to highlight an observation we have made, although it has not been specifical ly addressed in this appeal. The fu nds that were incorrectly withdrawn from the 1 st respondent's bank account were done so through a total of 109 transactions spanning fi ve Jl8 .! I months from 7 May 2018 to 31 October 2018. This information is detailed in the bank statements provided on pages 130-139 of the record of appeal. It does raise suspicion, firstly, that the I s1 respondent did not notice these unauthorized transactions in its account over a period of five months, and secondly, did not promptly repo11 them to the bank. Particularly notable is the evidence on record showing that the I s t respondent was required to report any discrepancies in their account to the bank within 30 days of receiving the bank statements, a requirement that the 2nd respondent failed to meet by a significant margin in this case. Therefore, the 2nd respondent cannot exclusively blame the appellant for the situation. 8. CONCLUSION 8.1 Based on the successful outcomes of all the grounds of appeal as outlined above, we conclude that this appeal is successfu l in its entirety. We accordingly make the following orders in this matter: i) The entry of judgnient in the sum of K27 l, 193. 04 in the judgment of Justice Pengele of the Kitwe High Court of 4 March 2022 is upheld. However, the order of the court directing the Appellant to pay the judgment sum to the J5f Respondent is hereby set aside forthwith. Jn its place, we order that the judgment sum shall be paid by the 2nd respondent with interest, as directed by the lower court. J 19 • ii) The 211d respondent shall bear the costs of the appellant and 1st respondent in these proceedings and in the lower court, to be taxed in default of agreement. C. K Makun COURT OF APPEAL JUDGE C J UDGE ~ arpe-Phif;' COURT OF APPEAL JUDGE J20